Citation Nr: 21076393 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 17-36 849 DATE: December 23, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. REMANDED Entitlement to service connection for a left ankle disability is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's low back disability had its onset in service, and not probative evidence suggests the Veteran's claimed ankle disability caused or aggravated his lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1987 to August 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing is in the Veteran's file. Entitlement to service connection for a lumbar spine disability The Veteran contends his low back condition is due to his altered gait from his left ankle disability, which he considers to be service connected. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A VA treatment records from December 2017 indicate the Veteran has degenerative disc disease of his low back. Thus, the Board recognizes the Veteran has a current disability. Service treatment records (STRs) are silent for any complaints, diagnosis, or treatment of a low back condition. VA treatment records from June 2008 show the Veteran complained of low back pain for the past 2 to 3 years. An x-ray showed mild degenerative disc disease (DDD), anterior osteophytosis, decreased disc spaces, and mild facet hypertrophy. The alignment of the spine was normal. The assessment was chronic low back pain from musculoskeletal and arthritis origin. At the Board Hearing, the Veteran testified that he believed his left ankle disability caused his left leg to be shorter, which caused him to tilt and twist his lower back out. He stated that he did not injure his back and the pain started many years after his left ankle disability. Notably, he denied any medical person relating his back condition to his ankle and altered gait. The Board concludes that the preponderance of evidence is against a finding that the current low back disability was incurred in service. Notably, the STRs do not contain any signs of a low back disability, nor does the Veteran allege his back condition started in service. Without evidence of an in-service injury to which current disability may relate, and the absence of probative evidence of a nexus between current disability and service, the greater weight of the evidence is against the claim. Accordingly, service connection for a low back disability is denied. With respect to the Veteran's contention that his low back disability is secondary to his left ankle disability, because there is no probative evidence associated with the file that suggests the Veteran's back disability has been caused or aggravated by his left ankle disability, it is not necessary to defer a decision on the back disability claim while the requested development of the left ankle disability service connection claim is accomplished. (The Veteran is not shown to possess the medical expertise to associate the one disability with the other, and therefore, his contention alone is insufficient to suggest a nexus.) In the event appropriate evidence is obtained that suggests a link between the Veteran's back disability and his ankle disability, he may submit a new claim if service connection is established for the ankle disability. Further, the Board acknowledges that the Veteran has not been afforded an examination in conjunction with his low back condition service connection claim. However, the Board finds the evidence does not establish a threshold requirement of service connection. As noted, the Veteran is not service connected for his ankle disability and the only evidence of a possible connection between the Veteran's low back condition and his ankle disability are his own lay statements, which he is not competent to make in this case. Therefore, VA is under no duty to provide such examinations. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a low back disability, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for a left ankle disability is remanded. STRs show the Veteran reported he had previously injured his left ankle several years prior to service, however, at the time of his entrance examination in 1987, there was no impairment of function of his left ankle. His entrance examination was normal, and thus, he was presumed sound at entry. STRs do, however, document the Veteran injured his left ankle in March 1989, which he contends happened when he stepped into a gopher hole. The Veteran also has a current diagnosis of left ankle post-traumatic arthritis. The Board cannot make a fully informed decision on the issue because no VA examiner has opined whether the claimed disorder is related to active duty service. The "low" threshold of McLendon has been met and the Veteran should be afforded a VA medical examination to determine whether his left ankle condition had its onset in service. See 38 U.S.C. § 5103A (d); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matter is REMANDED for the following action: 1. Ask the Veteran to identify any additional relevant records he wishes considered regarding this appeal, which records should be sought. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his left ankle disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, specifically including the Veteran's March 1989 injury. 3. Readjudicate the appeal MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jaigirdar, 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.