Citation Nr: 21008758 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 99-19 357 DATE: February 18, 2021 ORDER Entitlement to service connection for a back disability, to include as secondary to the Veteran’s service-connected leg length discrepancy, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s current back disability was not shown in service or for many years thereafter, and the most probative evidence indicates that the Veteran’s current back disability is not etiologically-related to service; additionally, the Veteran’s back disability was not caused or aggravated by his service-connected leg length discrepancy. 2. The Veteran is not unemployable due to his service-connected leg length discrepancy disability. CONCLUSIONS OF LAW 1. The Veteran’s current back disability was not incurred in service, is not presumed to be service-connected, and was not caused or aggravated by his service-connected connected leg length discrepancy disability. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to April 1971. The appeal has a long and complicated procedural history that includes a number of Board decisions, subsequent appeals to the United States Court of Appeals for Veterans Claims (Court) and subsequent Board remands. Most recently, the Board denied the Veteran’s claims in a May 2018 decision. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court), and in a January 2020 order, the Court granted the parties’ Joint Motion for Remand (Joint Motion), vacated the Board’s decision, and remanded the matter back to the Board for development consistent with the Joint Motion. Specifically, the Joint Motion directed that the Veteran be afforded an additional hearing. Pursuant to the Joint Motion, in November 2020, the Veteran testified at a hearing before one of the undersigned VLJs via video conference. A copy of the transcript has been associated with the claims file. In sum, the Veteran provided testimony at a total of four hearings in 2011 (Judge Crowley), 2013 (Judge Kane), 2017 (Judge Parakkal) and 2020 (Judge Parakkal). 1. Service connection for back disability Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show “(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 or aggravated during service-the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Certain chronic diseases, such as arthritis, will be considered incurred in service if manifest to a degree of ten percent within one year of service. 38 C.F.R. § 3.307. Service connection for the chronic diseases enumerated in 38 U.S.C. § 1101 may also be shown by lay evidence alone if the evidence shows a continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2019); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. VA and private examination reports reflect diagnoses including scoliosis, degenerative disc disease (DDD), and DJD of the lumbar spine. See, e.g., February 2018 VA examination report. Thus, the Veteran has a current disability. Regarding whether the Veteran’s back condition is related to service, a May 1968 pre-induction examination showed that he had been involved in a motor vehicle accident (MVA), fracturing his right tibia and fibula. Following open reduction and fibular shortening, it was noted that the Veteran had made a full recovery, notwithstanding a permanent 5/8-inch residual shortening of the right lower extremity. Shortly after entering service, the Veteran complained of right foot pain with walking and running. In June 1969, he was placed on a limited marching and standing profile. In May 1971, he complained of low back pain, which was described by the medical officer as right flank pain. It was also noted in a May 1971 (service treatment record) STR that the Veteran was not wearing an insert and needed to get his shoe built up. At his separation examination in September 1971, the Veteran completed his medical history form and noted his bone deformity. However, he denied any back issues, providing some factual evidence against his own claim. Post service, a private treatment record dated around 1979 notes that the Veteran was having slight discomfort in the perineal region and some low backache. The Board has undergone a detailed review not only of the service records, but of the post-service treatment records. In a January 1983 private treatment record, the Veteran was seen for back pain, and he reported experiencing acute pain in the right lower lumbar area after turning while getting out of his truck on the previous day. There was no radiating pain, and the doctor assessed the Veteran with an acute lumbosacral sprain. Ten days later, the Veteran’s condition was noted to have improved and that he was pain free. Notably, the physician remarked that he examined the Veteran’s leg length discrepancy but found that it was less than a quarter of an inch and stated that he did not think that it was of any particular significance, providing evidence against this claim. Moreover, X-rays revealed a radiographically normal lumbar spine. In March 1983, the Veteran complained of abdominal-back pain. It was noted that he had undergone a herniorrhaphy in August 1982, after which he had begun to experience some recurrent pain in the right lower back region that radiated around to the right inguinal area. On examination, the Veteran’s back was nondeformed and nontender. In November 1983, the x-rays were taken which showed minimal lumbar scoliosis. No fracture was identified, and the intervertebral disc spaces appeared to be preserved In December 1983, he was once again seen for back and abdominal pain. The doctor stated that Motrin provided complete relief of pain. X-rays showed mild scoliosis, which it was noted could be positional. In August 1984, the Veteran was seen for back pain and an enlarged lymph node; it was noted that he was mildly tender in the paraspinal muscles and the interscapular area. The Veteran was diagnosed with back pain that was musculoskeletal in origin. A report by the Veteran’s employer dated in February 1985 documents a workplace injury in which the Veteran’s “back fell across the side of a 2 x 4,” after he fell “about 4 feet.” He was diagnosed with a contusion and abrasion of the lower back. Based on this on-the-job injury, the Veteran filed for, and was awarded, a worker’s compensation settlement in June 1989 (a letter in April 2004 explained that all records had been destroyed other than the settlement agreement). The Veteran’s right leg length discrepancy was found to have been aggravated by the Veteran’s military service and he was granted service connection for that disability in a March 2007 rating decision. As an initial matter, the Board notes that there is no competent evidence of record reflecting that the Veteran demonstrated arthritis of the lumbar spine to a compensable degree within one year of discharge from active duty. As such, service connection can also not be granted for arthritis of the lumbar spine on a presumptive basis. As there is no competent evidence of arthritis affecting the lumbar spine in service or within one year following discharge from service, competent evidence linking the current low back disability with service or a service-connected disability is required to establish service connection. Turning to the medical nexus question, the Board notes that numerous private and VA opinions have been obtained. There is conflicting evidence of record with regard to whether the Veteran’s current back disability is related to service or his service-connected disability. In July 1999, Dr. D.D., a private orthopedic surgeon remarked that he had reviewed the Veteran’s treatment records and service records and opined that it was more likely than not that the Veteran’s right leg was aggravated by the failure to issue a built-up shoe during service and that it was more likely than not that the back condition began during service. This statement is completely contradicted by the Veteran’s own statement in service that he did not have a back problem. An October 2003 letter from Dr. T.A., a private physician who reported treating the Veteran in the early to mid-1970s, stated that he could not say whether the Veteran’s current back problems were a direct result of not being allowed to wear his inserts while in the military, but he opined that “if the military had supported [the recommendation] to wear the 5/8”insert, [the Veteran’s] back problems may not be as severe as they are now.” The Veteran also submitted a May 2014 private opinion from Dr. F.G. This physician reviewed the claims file and discussed the medical evidence in detail before determining that it is more likely than not that the untreated leg length discrepancy present as a residual of fractures of the tibia and fibula on the right are substantially causal and accelerated the Veteran’s progressive deterioration of his lumbosacral. The Veteran also underwent VA examination in August 2005. The examiner stated that the Veteran’s assertions of some very mild discomfort that related to his scoliosis and his lumbar disc disease which was made worse by his military service was believable, but it was very mild in terms of incapacity and symptoms. He posited that the Veteran was asymptomatic for several years after service. The examiner also noted the Veteran’s treatment in the 1970s and that the Veteran did not wear a shoe lift while in the military. The examiner also noted that the Veteran denied that his symptoms following his 1985 workplace accident were any different than before the accident, which the examiner found was inconsistent with the Veteran trying to recover damages following the accident. The Board has reviewed the facts of this case in detail and agrees with the findings of the VA examiner: The Veteran’s back disability was clear following the accident, not prior to the accident, and the Veteran’s contention that his back problem was not any different is inconsistent with this record. The examiner stated that this was pertinent in that it showed the Veteran to lack credibility. The examiner stated that the Veteran’s current back disability was not a result of an in-service injury, adding that although in-service events contributed to the worsening of the Veteran’s lower back pain, any incapacity was mild at best. In December 2006, the author of the August 2005 VA examination opined that had the Veteran been provided the prescribed shoe lift during service, “his lumbar spine problem would not have been as severe.” However, the examiner did not mention the February 1985 workplace injury in the addendum opinion, and did not explain whether his statement was intended to establish that the Veteran’s back disability was aggravated by his military service (meaning that it was permanently worsened beyond the natural progression of the disability). A plain reading of the addendum opinion suggests that the examiner was only addressing the leg length discrepancy and not the current back disability, as the examiner specifically stated that it was at least as likely as not that the right leg disability increased in severity during the Veteran’s time in service, and that such an increase was beyond the natural progression of the disability, but made no such statement regarding the Veteran’s back. The Board observes that the opinions by the private physicians in July 1999, October 2003, and May 2014, and the opinions of the VA compensation examiner in August 2005 and December 2006, all failed to consider the effects of the Veteran’s February 1985 workplace injury on his current back disability, a highly significant event in this case, which the Board simply cannot ignore. Based on a review of the medical evidence, the Veteran’s contention that this significant post-service injury did not cause his current back disability is not consistent with the medical record. While the Veteran has attempted to minimize the severity of that post-service accident, the workplace accident was certainly a highly significant injury: the Veteran had worked for more than a decade following service (despite the chronic back disability he has claimed to have been experiencing without any cessation after service). However, once the back injury occurred at work, the Veteran could no longer perform his work, and immediately sought worker’s compensation and Social Security Administration (SSA) disability benefits On a factual basis, this provides highly probative evidence against the Veteran’s central contention that this post-service back injury caused him no problems, which is an assertion that the medical evidence does not support and directly contradicts. The post-service treatment records provide particularly negative evidence against this claim. The Veteran was provided additional VA examinations and opinions in June 2008, December 2010, and May 2013. However, in the December 2015 Memorandum Decision, the Court determined that the June 2008 VA examiner provided three defective opinions. A new VA opinion was obtained in February 2018 to address this concern. After reviewing the entire claims file, including the Veteran’s lay statements, as well as prior private and VA examination reports and opinions, the examiner concluded that it is less likely as not that the Veteran developed a chronic back disability secondary to his service-connected right lower extremity disability nor was the Veteran’s back condition aggravated beyond normal progress by the service connected right lower extremity disability. He also indicated that it is less likely than not that the Veteran’s current back disabilities began in service, or are otherwise related to service. He further noted that it is less likely than not that the Veteran’s back disability affected his work to any significant degree prior to the work injury in 1985. The examiner observed that after separation the Veteran worked as a pipe-fitter and welder, laborious occupations. The examiner also concluded that the 1983 X-rays would not support lumbar disc disease nor lumbar spine arthritis continuing from military duty. The examiner also noted that the Veteran was diagnosed with his lumbar DDD in December 1985 after intercurrent injury in February 1985. He stated that no L4-5-disc space narrowing was suggested on the normal lumbar spine X-rays in 1983; therefore, he opined that it is very unlikely the disc disease is directly related to service as normal X-rays prevent a nexus. Regarding any back disabilities present prior to the February 1985 injury, the examiner acknowledged the scoliosis and muscle spasm with manipulation from 1983 until 1985; however, he also indicated that this time period would have been after the normal 1983 lumbar spine X-rays. He further noted that private treatment records prior to August 1982 and March 1983 indicate abdominal and back pain which usually started after muscular activity, assessed as abdominal and back pain possibly secondary to herniated disk in the high lumbar region. However, he determined that the first lumbar X-rays to show degenerative disease was at the L4-5 level and below, which is not a high disc and did not confirm the prior assessment. The examiner also noted that private treatment records in March 1983 and December 1983 indicate abdominal and back pain with history of recent onset after an August 1982 inguinal herniorrhaphy of some recurrent pain in the right lower back region, radiating around to the right inguinal area, with physical examination findings of back is nondeformed, and nontender with questionable tenderness at the sacroiliac junction, assessed with possible high lumbosacral disc disease at follow-up. However, he again determined that the lumbar spine disc disease was not the initial lumbar spine X-rays findings. The examiner commented on the May 1983 private treatment records showing a week history of abdominal and back pain treated with antibiotic therapy, with normal lumbosacral spine films with tenderness in the left paraspinal muscles, decreased range of motion, assessed as low back pain and to rule out herniated nucleus pulposus. However, he noted that subsequent lumbar CT scan in December 1985 showed no herniated nucleus pulposus to be present, only early bulging degenerative disease. The examiner further remarked that the private treatment report dated in April 1985 showing the intercurrent job-related injury in February 1985 with evaluation and treatment for lower back contusion and abrasion with normal associated lumbar spine X-rays would not support a back condition continuing from military duty and would also not support any significant back injury affecting his ability to work prior to the February 1985 injury. He emphasized that the Veteran was working when he sustained the fall that injured his lower back. Regarding whether the Veteran’s service-connected disability caused or aggravated any current back disability, the examiner acknowledged the May 2014 private opinion that the untreated leg length discrepancy accelerated the Veteran’s deterioration of his lumbosacral spine. However, he noted that changes in gait and altered biomechanics would result in the spine trying to stabilize itself and this would be evidenced by osteophyte formation. He noted that the survey of radiographic studies did not show osteophyte formation but rather degenerative disc disease, which would not support this hypothesis. The examiner reiterated that the April 1985 private treatment report indicated that the private clinician, Dr. H., felt that the Veteran’s complaints at that time appeared to be consistent with early DDD, and noted that he did not feel that his leg length discrepancy, which appeared to be approximately 3/4 inch short on the right, was the etiology of his back pain. He also noted that there was minor bulging disc disease noted on the December 1985 lumbar CT scan and opined that this does not support that early degenerative disc disease is etiologically related to service-connected right lower extremity condition with leg shortening. The VA examiner further elaborated that notes reviewed prior to August 2005 indicate a less than 1.9 cm leg length discrepancy and would not support a finding that gait would have been altered enough to alter the gait. In addition, he stated that early studies of the back at the time of diagnosis of DDD did not indicate any arthritic changes. This, according to the 2018 VA examiner, would support that the service-connected right lower extremity tibia/fibula fracture residuals did not cause sufficient gait abnormality to result in the lumbar spine conditions. Rather, he noted that radiographic changes in this Veteran are most consistent with degenerative changes with later arthritic formation for which the examiner opined the etiology is more than likely related to aging, heavy work labor and intercurrent injury requiring multiple surgeries. Therefore, he concluded that it is unlikely to be related to the service-connected right lower extremity fracture residuals with leg shortening. Regarding whether the Veteran’s service-connected disability aggravates his current lumbar spine disability, the 2018 VA examiner stated that degenerative joint disease of the lumbar spine is a chronic condition that tends to progressively worsen over time with the natural aging process and/or due to ongoing repetitive injury. He noted that as there have been no additional lumbar surgeries since the 1980s and since the recent X-rays in 2011 reveal that the changes in the back are stable, this would not support aggravation of the lumbar spine, including by a service-connected disability. The Board has accorded more probative weight to the February 2018 VA medical opinion, which was based on a detailed rationale, and thus is afforded high probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). As noted the other opinions of record have been deemed inadequate. This opinion addresses those concerns and fully addresses all issues in this case. The Board acknowledges the testimony at multiple hearings of the Veteran and his spouse, together with the written lay statements in support of his service connection claim submitted by his friends. However, while the Veteran may sincerely believe that his back disabilities are related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of the Veteran’s back disabilities are matters not capable of lay observation, and require medical expertise to determine. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301(1999) (“Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with.”). The key question in this case is whether the Veteran’s back disability was caused or aggravated by service or a service-related disability. This is medical question. Thus, the Veteran’s own opinion regarding the etiology of his back disabilities is not competent medical evidence. The Board finds the opinion of the February 2018 VA examiner to be significantly more probative than the oral and written lay assertions provided by the Veteran, his spouse, and his friends. The service records and post-service treatment records fully support this finding, undermining the medical opinion evidence that supports this claim. Beyond the negative medical opinion evidence, the Board must find that in this case the post-service treatment records of the Veteran’s back issues following service provide, overall, exceedingly probative evidence against this claim, so much so that the post-service treatment records, standing alone, provide a high probative basis to deny this claim. Further, the Veteran’s prior statements that his back disability was the same as it was before the post-service injury is clearly factual inaccurate, undermining the Veteran’s recollections of events regarding this disability. Based on a detailed review of the Veteran’s many statements and testimony over many years, the Board must find that the Veteran is not an accurate historian of his back disability. The Veteran is attempting to minimize the importance of the post-service back injury. A detailed review of the post-service treatment records following this injury, in conjunction with the Veteran’s own actions following this injury, does not support the Veteran’s recollection of events. In this case, the service medical records, the post-service treatment records and the best medical opinion evidence provides highly probative evidence against this claim that the Board cannot ignore. Therefore, a back disability was not shown in service or for many years thereafter, and the most probative evidence indicates the Veteran’s current back disabilities are not related to service, nor were they caused or aggravated by his service-connected right lower extremity leg length discrepancy. For the above reasons, the Board finds that the weight of the evidence is against service connection for a back disability, to include as secondary to the Veteran’s service-connected leg length discrepancy. Because the preponderance of the evidence is against the claim for service connection, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. TDIU VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. VA regulations allow for the assignment of total disability ratings, where the rating under the rating schedule is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Entitlement to a TDIU depends on the impact of a veteran’s service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as work history, education, and vocational training. 38 C.F.R. § 4.16. A TDIU may be assigned, on an extra-schedular basis, to a veteran who does not meet the rating schedule requirements for a TDIU, if the veteran, by reason of his or her service-connected disabilities, is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(b). In this decision, above, the Board has denied the Veteran’s appeal for service connection for a back disability. The Veteran’s only disability for which service connection has been established is his residuals of a fracture of the right tibia and fibula with leg length shortening. That single disability is rated as noncompensable (0 percent disabling). That rating does not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a). A TDIU may nonetheless be assigned on an extra-schedular basis if his disability makes him unable to secure and follow substantially gainful employment. In this case, there is no dispute that the Veteran is unemployable. He injured his back in 1985 and has not been able to work since that time. He has also been awarded SSA disability benefits on account of his back disability based on this injury. However, the entirety of the Veteran’s TDIU argument is predicated on the fact that he cannot work because of his lower back disability. For example, at his hearing testimony, the Veteran acknowledged that to prevail in his TDIU claim, service-connection had to be granted for his back condition because it caused his unemployability. He further acknowledged that the service-connected leg length discrepancy had no significant bearing on the Veteran’s employability. During the June 2017 and November 2020 Board hearings, the Veteran and his representatives reiterated that his unemployability was due to his back issue. Based on the findings above, the Veteran’s own statement would not support the grant of TDIU. Thus, the Board finds that the evidence does not reflect, and the Veteran does not contend, that he is unemployable due to his service-connected leg length discrepancy. The Board has reviewed the Veteran’s service-connected disability and cannot find a basis to support entitlement to a TDIU on any basis. As discussed above, this decision finds the Veteran’s back disability is unrelated to either his active service or to a service-connected disability, and therefore, there is no basis to award TDIU. As such, the Veteran’s claim for TDIU is denied. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Michelle L. Kane Veterans Law Judge Board of Veterans’ Appeals John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kovacs, 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.