Citation Nr: 21005256 Decision Date: 02/01/21 Archive Date: 01/30/21 DOCKET NO. 10-33 196 DATE: February 1, 2021 ORDER Service connection for a low back disorder is denied. A compensable rating for residuals of a fractured left fibula is denied. FINDINGS OF FACT 1. The Veteran had active service from December 1966 to December 1970. 2. A low back disorder, diagnosed as degenerative arthritis, was not shown in service, not shown to a compensable degree within one year from service, symptoms were not continuous since service, and a low back disorder is not causally or etiologically related to service or to a service-connected disability. 3. The residuals of the left fibula fracture have been manifested by subjective complaints of pain; objective findings do not show nonunion of the tibia and fibula. CONCLUSIONS OF LAW 1. A low back disorder was not incurred in service, is not presumed to have been incurred in service, nor is it secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1111, 1112, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.304, 3.307, 3.309, 3.310 (2020). 2. The criteria for a compensable rating for residuals of a fractured left fibula have not been met. 38 U.S.C. §§ 1110, 1113, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5262 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In March 2015, July 2017, and December 2018, the Board remanded the appeals for additional development. The case has now been returned to the Board for further appellate action. Service Connection for a Low Back Disorder Turning to the laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Turning to the evidence, the Veteran was diagnosed with degenerative arthritis of the spine at the January 2020 VA examination. As such, the first element of service connection is met. Next, the second element of service connection – an in-service incurrence – is also met. In a July 2015 VA examination, the Veteran stated that he was slammed against a doorknob repeatedly during basic training, hurting his back. He has one entry in his service treatment records (STRs) where he sought treatment for low back pain. On the separation physical in November 1970, it was noted that he had recurrent low back pain for the last ten years. Therefore, the second element of service connection is met. However, the third element of service connection – a medical nexus – is not supported by the evidence. A January 2020 VA examiner found that it was less likely than not a current low back disorder was related to service. While there was one undated entry in the STRs for back pain, the separation physical was negative for low back complaints. The separation examination discussed an X-ray which reported lumbarization of the first sacral vertebra with minimal spinal bifida, which the clinician noted was a congenital/ developmental disorder. However, in an X-ray 26 years later, there was no report of lumbarization or spina bifida, but degenerative changes were noted. There are no medical records related to the back from the time the Veteran left the service until 1996. In all of the Veteran’s VA examinations in 1999, 2015, and 2020, the clinicians found that it was less likely than not a current low back disorder was related to service. The clinician in the July 2020 VA examination stated that the Veteran’s current arthritis was likely due to aging, obesity, lifestyle activities, heredity, and other factors. There is no other VA or private medical opinion that alleged any etiological connection between service and the Veteran’s current disability. As such, the medical evidence weighs against finding a nexus and does not support service connection on a direct basis. Turning to service connection on a presumptive basis, arthritis is a chronic disease under 38 C.F.R. § 3.309 and presumptive service connection will be considered.  For a showing of a chronic disease in service, or within a presumptive period, there must be symptoms sufficient to identify the disease, and enough observation to establish chronicity at the time. Continuity of symptomatology after service is required where a condition noted during service is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.   See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, the STRs have one entry for low back pain with no chronic back disorder noted on separation from the service. There are no other medical records until 26 years later that show any low back disorder. As noted above, the July 2020 VA examiner found that the Veteran’s current arthritis was likely due to aging, obesity, lifestyle activities, heredity, and other factors. Therefore, the medical evidence does not support presumptive service connection on a “chronic disease or injury shown in service” basis. Next, the medical evidence does not support presumptive service connection based on continuity of symptomatology since service. Specifically, the Veteran separated from service in December 1970. The medical evidence shows the first medical entry of back pain post-service was in 1996, 26 years after discharge. The onset of symptoms aligns with the July 2020 VA examiner’s rationale that age and other factors were the cause for the onset of the Veteran’s back disability. In the July 2020 VA examination, the Veteran stated he had back pain through the years and he had received chiropractic treatment on his back for the past 50 years but no records regarding chiropractic treatment have been submitted. While he maintains he has had back pain in and since service, this is not supported by the contemporaneous evidence. As such, the medical evidence does not support service connection on a “continuity of symptomatology” basis. Further, the disorder did not manifest itself to a degree of 10 percent or more within one year from the date of separation of service. The Veteran separated from service in 1970 but did not note symptoms until 1996 at the earliest. This evidence does not support presumptive service connection on a “manifest within one-year from separation” basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. The Veteran also claims his low back disability is secondary to his service-connected residuals of hypoesthesia of the left later cutaneous nerve and residuals of a left fibula fracture. The first and second elements of secondary service connection are met in that he has a current diagnosis of a back disorder and he has been service-connected for residuals of hypoesthesia of the left later cutaneous nerve and residuals of a left fibula fracture. Turning to the third element – a link between the service-connected disability and the current disability - this element is not met. None of the VA examinations in 1999, 2015 and 2020, found that the Veteran’s back condition was aggravated by his service record beyond the natural progression. The July 2015 examiner noted that mild degenerative changes to the lumbar spine were recorded 26 years after discharge. The examiner reflected that the Veteran was older than 45 years of age, was obese, did a lot of standing and walking at his post-service job, worked at a job that placed repetitive stress on the lumbar joints, and concluded that the lumbar spine disorder was less likely due to the left fibula fracture or the hypoesthesia of the left lateral cutaneous nerve. There is no contradictory medical evidence of record. Therefore, the medical evidence does not support secondary service connection. The Board has considered the Veteran’s lay statements that his back disorder was due to service or a service-connected disability. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Increased Rating for Residuals of a Fractured Left Fibula Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran currently has a noncompensable rating for residuals of a fractured left fibula, which he has had since 1972. Under the relevant diagnostic codes, a 10 percent rating is warranted when the objective evidence shows a malunion of the fibula with slight knee or ankle disability. In the 1999, 2015, and 2020 VA examinations, no malunion of the fibula was found. In the 2020 VA examination, the Veteran’s leg was not shown to have pain, deformity, flare-ups, or leg shortening and no significant occupational effects. In the addendum to the 2015 exam, there was no tenderness due to the fibula fracture. In the 2015 and 2020 VA examinations, the clinicians noted some pain in his knee and ankle due to an ankle break and achilles tear in 1998 but no malunion. Therefore, the medical evidence does not support a compensable rating for residuals of his fractured left fibula. To the extent that the Veteran complains of left ankle pain, he is already service connected at 10 percent for residuals of hypoesthesia of the left lateral cutaneous nerve which contemplates the complaints of pain. Therefore, pain has already been considered and a separate rating for pain is not further warranted. The Board has also considered the Veteran’s lay statements that his ankle disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s residuals of a fractured left fibula has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiner has the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinion great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gamache, 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.