Citation Nr: 21076093 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 11-06 859 DATE: December 22, 2021 ORDER Entitlement to service connection for a lumbar spine disorder, to include as secondary to a right lower extremity muscle condition, is denied. FINDING OF FACT The evidence of record fails to establish that the Veteran's lumbar spine disorder is due to a disease or injury in service or was caused or aggravated by his service-connected right lower extremity muscle disorder. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1974 to July 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Manilla, Philippines. The Veteran testified in a March 2012 Board hearing. As an initial matter, after a thorough review of the claims file, the Board noted a discrepancy regarding the Veteran's representative, or lack thereof. The Board notified the Veteran of its concern in a November 2021 correspondence and requested clarification. The letter informed the Veteran that if the Board does not hear from him or a new representative within 30 days of the date of this letter, the Board will assume that he wishes to represent himself and review of this appeal will be resumed. No response to the November 2021 letter was received, and the Board will proceed with the Veteran acting pro-se. This case was previously before the Board in February 2015 at which time the claim for service connection for a lumbar spine disorder was reopened, June 2017, November 2020, and most recently in July 2021 when it was remanded for further development to include contacting the Social Security Administration (SSA) to obtain any records pertaining to the Veteran's claim for disability benefits and a VA medical opinion addressing aggravation of his claimed back condition. The record shows VA requested and obtained both SSA records and a VA medical etiology opinion addressing aggravation. The Board notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). The matter has returned to the Board for appellate review. The Board's February 2015 remand found the claim for service connection for a lumber spine condition was inextricably intertwined with a referred, but pending, service connection claim for right lower extremity muscle wasting. During the pendency of this appeal, a January 2020 rating decision granted service connection for residuals of injury to Muscle Group XII (claimed as muscle wasting in the right lower extremity) effective in March 2010; an August 2020 rating decision granted an earlier effective date of April 2008. This grant has not been appealed. In general, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or a disease incurred or aggravated in the line of duty during active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces or, if preexisting such service, was aggravated therein. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the disease or injury in service and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. However, VA will not concede aggravation unless the baseline level of severity of the non-service-connected disease is established by medical evidence. 38 C.F.R. § 3.310(b). To prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical evidence. VA must also consider all favorable lay evidence of record. See 38 U.S.C. § 5107(b). A Veteran is competent to report on that of which he has actually observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board acknowledges the Veteran has current diagnoses of degenerative disc disease, from 1999, and status post (s/p) lumbar spine surgery. See March 2021 VA back (thoracolumbar spine) conditions examination. Therefore, the only questions for the Board are whether the Veteran's lumbar condition began during service or is at least as likely as not (at least an approximate balance of positive and negative evidence) related to an in-service injury, event, or disease; or in the alternative, was caused or aggravated by his service-connected right shoulder disability. The Veteran's service treatment records (STRs) include multiple February 1976 shipboard treatment records that note the Veteran's right calf was lacerated after he was hit by a wave and thrown against the lifelines. The treatment records indicate the injury was cleaned and closed with sutures. A September 1976 Naval hospital record noted the sutures had been removed because of infection and the wound failed to heal for seven months. An April 1978 treatment record noted radiating pain down to knee and foot. A July 1978 report of medical examination (RME) for separation noted the right leg scar but was silent as to back pain. The claims file contains a series of medical etiology opinions provided by private treatment providers. A September 1998 treatment letter noted the Veteran reported that during rough seas, he was thrown across the ship's deck, the ship's stanchion hooked his right ankle, and he was left hanging upside down and severely twisted. The provider opined it was possible that a severe twisting injury as described could cause a disc injury and right leg muscle issues. A 2013 treatment letter from a separate provider also noted the accident. The provider noted that it is conceivable that such an accident could indeed cause severe disc injuries and long-term right leg muscle damage. A May 2016 private treatment letter noted that the Veteran underwent lumbar spine surgery in June 1999. Subsequent imaging shows multilevel disc herniations with moderate canal stenosis L4-L5. The provider noted that this result is commonly seen in individuals the Veteran's age, but the possibly of trauma related chronic back pain cannot be ruled out since no imaging was conducted at the time of the original leg injury. The Board observes that these opinions are all speculative and less-than-definite in nature, and none of them are supported by a rationale to explain the conclusions. The Board reviewed a January 2001 workers' compensation claim evaluation report following a March 1999 accident. A private provider reviewed available medical records and conducted a physical examination. The provider noted that the Veteran had a diagnosis of symptomatic right L5-S1 herniated nucleus pulposus with right S1 radiculopathy dating back to December 1996. The provider also opined that the March 1999 workplace accident resulted in permanent aggravation of the Veteran's chronic, preexisting low back condition. A review of the records obtained from the SSA shows the Veteran was determined to be disabled from December 2007. His primary diagnoses for disability included disorders of the spine. The Veteran reported it is difficult to stand for long periods of time. Most records note cervical spine pain. Three records between March 2005 and October 2007 note low back pain, but they do not provide any indication of etiology. A July 1998 VA scars examination also contained lumbosacral back imaging. The noted impression was normal spinal alignment with vertebral heights and well-maintained intervertebral disc spaces. No evidence of fracture or bony erosion was noted. A January 2009 VA general medical examination noted the onset of back pain in 1985, when the Veteran was thrown off a ship but left hanging by a hook in his right leg. The Veteran reported ignoring the back pain and focusing on his leg. The Veteran reported his back pain increased in the 1990s leading to eventual 1999 back surgery. The examination report also notes the Veteran has neck pain with reported the date of onset in 2005. The examiner noted that the Veteran's low back condition did not occur before or during active service but occurred after service. No etiology opinion was provided. The claims file includes a January 2011 VA spine exam. The examiner noted a review of the claims file and medical records, and an in-person examination. The Veteran reported low back pain started after the above noted shipboard accident. The examiner confirmed a diagnosis of grade 1 retrolisthesis of L5 vertebral body over the 1st sacral bone and discospondylosis of the lumbar spine. The examiner opined that the current low back condition is not caused by or a result of active service or due to the Veteran's right ankle post traumatic condition. As a rationale for the opinion, the examiner noted a review of the STRs is silent for evidence of any treatment for his lower back. The treatment records pertaining to his 1976 right leg injury made no mention of any lower back injury or condition. The 1978 RME for separation, two years after the accident, indicated normal joints and spine. In addition, there is no mention of any chronic sequelae from the accident other than the residual scaring. Imaging concurrent to the accident showed no ankle fracture. It is apparent from his treatment records that veteran mainly suffered soft tissue injury which was treated adequately and subsequently healed with a residual scar. The records are silent as to any complications involving right ankle and/or lower back or lumbar spine conditions. Furthermore, the Veteran reported he suffered a right ankle fracture in the early 1980's, several years after separation. This post service fracture resulted in a right ankle plaster cast for several months. Finally, the examiner noted no medical evidence was submitted to show that a lower back condition manifested to a compensable degree within the initial post-service presumptive period of one year. The Veteran was afforded an August 2016 VA muscle injuries examination after the Board's June 2014 remand. During that examination he complained about back pain that he asserts is due to bumping his back against a hard object during the 1975 shipboard accident. The Veteran also reported regularly using a cane to walk. In an August 2016 VA medical opinion addressing secondary service connection, the examiner noted that the Veteran's low back condition is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected condition. As a rationale, the examiner noted that the Veteran is not currently diagnosed with right lower extremity muscle wasting. The Board's June 2017 remand noted the muscle wasting claim had still not been adjudicated by the Agency of Original Jurisdiction (AOJ). Thus, the inextricably intertwined claim for service connection for a low back condition was remanded again. As noted above, a January 2020 rating decision granted service connection for residual of injury to right lower extremity Muscle Group XII. However, as noted in the Board's November 2020 remand, another remand was necessary, as the January 2011 VA examination and medical etiology opinion only addressed direct connection, not whether the Veteran's right lower extremity disorders caused or aggravated the Veteran's lumbar spine disorder. In an April 2021 VA back (thoracolumbar spine) conditions examination, the examiner confirmed diagnoses of degenerative disc disease other than intervertebral disc syndrome (IVDS) and s/p lumbar spine surgery. The Veteran reported he twisted his neck and back when he was washed overboard, and his leg was hooked on the ships stanchion. The examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted the Veteran's STRs, including his RME for separation, are silent for back pain. The examiner noted it would be less likely as not that he could have injured his back in the described shipboard accident and not had symptoms on the separation exam two years later. The examiner noted that post service treatment records noting back pain are dated more than 20 years after the inservice injury. The same examiner opined the claimed condition is also less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected condition. As a rationale, the examiner noted the STRs do not show back pain. Acknowledging the Veteran's description of his shipboard injury, the examiner noted there is no evidence in the STRs, including nothing in the separation exam, discussing a back condition resulting from this event. It would be less likely as not he could have injured his back in this event and not had symptoms on the separation exam two years later. A separate line in the medical opinion noted there is "no significant chronic gait changes documented associated with the service connected right lower extremity disability that would cause or aggravate the back condition beyond natural progression." However, even if this could be considered an aggravation opinion, it is unsupported by any rationale. Following the Board's July 2021 remand, VA obtained a new medical opinion addressing secondary service connection based on causation and aggravation. The examiner opined the claimed low back condition is less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected residual of injury to right lower extremity Muscle Group XII claimed as muscle wasting affecting the right lower extremity nonlinear and deep scar, medial malleolus, right ankle, anterior aspect, residual of laceration. As a rationale, the examiner noted there is no evidence of chronic and continuous treatment and care. There is no evidence in the medical records that the service-connected condition resulted in a back condition and without medical records, a pathological correlation cannot be provided. The same examiner addressed aggravation, noting that a baseline level of severity can be determined based on a review of the medical evidence. The examiner noted there was no pain noted on the entrance examination, and the separation examination is negative for a lumbar spine condition. The examiner confirmed that the current level of pain was higher than the baseline. However, regardless of the established baseline, the examiner opined that the Veteran's current lumbar spine condition is less likely than not (less than 50 percent probability) aggravated beyond its natural progression by residual of injury to right lower extremity Muscle Group XII claimed as muscle wasting. As a rationale, the examiner noted there is no evidence of chronic and continuous treatment and care. There is no evidence in the medical record that the current back condition was aggravated due to the service-connected condition. Overall, the Board observes that no medical professional has provided an opinion relating the Veteran's low back condition directly to the Veteran's service, to include the shipboard accident, or based on a theory of secondary connection to his service-connected right lower extremity muscle wasting condition. As to the Veteran's own contentions, including testimony in his March 2012 Board hearing, the Board notes he is competent to observe lay symptoms, including the presence of pain and when it started. However, the record does not show he has the training or credentials to provide a competent opinion as to a diagnosis or a competent link to his service-connected right lower extremity muscle wasting condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board assigns substantially more probative value to the opinions of the multiple VA examiners who have reviewed the claims file and medical records and then provided negative direct and secondary etiology opinions. Based on the above evidence, the Board finds that the Veteran's low back condition was not caused by service or caused or aggravated by his service-connected right lower extremity disability. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the claim is denied. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.