Citation Nr: 21007075 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 13-02 500 DATE: February 8, 2021 ORDER Entitlement to service connection for lumbosacral strain with scoliosis (spine condition) as secondary to plantar fasciitis of the left foot (left foot condition) is denied. FINDING OF FACT The Veteran’s spine condition was not due to or aggravated by his left foot condition. CONCLUSION OF LAW The criteria for entitlement to service connection for the Veteran’s spine condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1996 to November 2000. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of February 2017 issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran’s timely notice of disagreement (NOD) was filed in March 2017 and a statement of the case (SOC), as well as the Veteran’s timely appeal to the Board, followed in July 2017. Because the Veteran did not request a hearing in his appeal to the Board, no hearing before the undersigned Veterans Law Judge (VLJ) was scheduled. The record reflects that the Veteran died in October 2017 and that the Appellant has subsequently been substituted in the Veteran’s claim. See October 2017 VA Form 27-0820a; see also June 2020 Correspondence. The Board extends its condolences to the Appellant as to the Veteran’s death. In a previous decision of July 2020, the Board remanded this issue for further development, including a medical opinion from a VA examiner. A supplemental statement of the case (SSOC) was issued in November 2020. After reviewing the evidence of record, the Board now finds that the RO has substantially complied with its remand directives and will therefore proceed to adjudicate the Appellant’s claim. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (providing that a remand confers upon the Veteran the right to substantial compliance with remand instructions). 1. Entitlement to service connection for a spine condition. Generally, service connection requires the existence of a present disability, the in-service incurrence or aggravation of a disease or injury, and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, disabilities which are “proximately due to or the result of a service-connected disease or injury” are also service connected. 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” Id. The Veteran had asserted that his spine condition was due to his service-connected left foot condition. See March 2017 VA Form 21-4138. In support of his claim, he had submitted medical treatment notes of November 2016, as well as several medical articles addressing the use of foot orthotics to alleviate back pain. See December 2016 Medical Treatment Records at 1-2; see also March 2017 Documents. The Veteran underwent a VA examination on this issue in December 2016. In its July 2020 decision, the Board previously found that this examination was not fully adequate to support adjudication of the Veteran’s claim because it did not address whether the Veteran’s plantar fasciitis might have aggravated, rather than caused, his spine condition. See July 2020 Board Decision at 14-16. Accordingly, the Board remanded the Veteran’s claim for a supplemental medical opinion. Id. This supplemental medical opinion was provided in several parts in October 2020. See October 2020 VA Examination Report (Causation); see also October 2020 VA Examination Report (Aggravation). The October 2020 VA examiner opined that it was more likely than not that the Veteran’s spine condition was not due to or aggravated by his left foot condition. See id. at 3. In support of this conclusion, the VA examiner noted that: The precise etiology of acquired scoliosis remains unknown, but several intriguing research avenues exist… [including] primary muscle disorder… [an] elastic fiber system defect… [and] [disorganized] skeletal growth, probably with its root cause at a gene locus or group of loci… Attributing [the Veteran’s] scoliosis to his plantar fasciitis would be completely speculative as no medical objective evidence of such a correlation exists beyond opinion and conjecture. This would not even meet the 50% likelihood threshold. See October 2020 VA Examination Report (Causation) at 3; see also October 2020 VA Examination Report (Aggravation) at 3 (noting that “[due] to age and gravity, weight gaining, weight bearing etc. the angle [of scoliosis] could be expected to worsen” but that “[there] is no evidence of unnatural or abnormal aggravation”). The Veteran had asserted that a treating VA physical therapist informed him that his spine condition was due to his left foot condition in November 2016. See March 2017 VA Form 21-4138. However, the physical therapist’s contemporaneous treatment notes do not express any opinion as to the etiology of the Veteran’s spine condition, and the Board finds it more likely than not that a medical provider reaching such a conclusion would have recorded it in written form. See December 2016 Medical Treatment Records at 1-2; see also Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (providing that while the absence of evidence may not generally be considered as substantive negative evidence, the absence of a record may be so considered if such records would ordinarily be created). The medical articles submitted by the Veteran discuss the use of foot orthotics, such as shoe inserts, to alleviate back pain. See March 2017 Documents at 1-3. Additionally, two of them suggest a link between hyperpronation of the feet and lower back conditions, when such hyperpronation results in a functional discrepancy in the length of a person’s legs and thus alters their gait. See id. at 4-5. However, the previous VA examination of December 2016 already noted that the Veteran “does not meet any of the criteria for gait and stance changes.” See December 2016 VA Examination Report at 18 (noting the absence of indicators such as difficulty rising from a chair, difficulty turning, or a widened base); see also id. (noting that “[the Veteran] does not have a Trendelenburg gait… does not have a leg length discrepancy of more than 2-4 cm… [and] does not have… years of altered gait pattern due secondary to a joint issue”). The Board therefore finds that the Veteran had not submitted sufficient competent medical evidence to equal the negative medical opinions of the December 2016 and October 2020 VA examiners. Because the balance of the evidence of record is against the Appellant’s claim, service connection for a spine condition is not warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.310. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.