Citation Nr: 21010485 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 14-25 169A DATE: February 25, 2021 ORDER Service connection for a low back disability, as variously diagnosed, as secondary to service-connected pes planus is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s current low back disability is proximately due to his service-connected pes planus. CONCLUSION OF LAW The criteria for service connection for a low back disability as secondary to pes planus are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.02, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1989 to May 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2018, the Veteran testified before the undersigned at a Board hearing in Columbia, South Carolina. A transcript of that hearing has been associated with the claims file and reviewed. The Board previously considered this matter in November 2018, when it remanded the case for additional development. It has now returned for appellate review. Service connection for a low back condition, to include as secondary to service-connected pes planus, is granted Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, generally there must be: 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, service connection may be granted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). 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. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). *** The Veteran seeks service connection for a low back condition, to include as secondary to service-connected pes planus. See 12/11/2015 VA 21-526b, Veteran Supplemental Claim. Turning to the evidence, the Veteran has a current diagnosis of a low back condition. See 11/21/2019 C&P Exam. Specifically, upon examination in November 2019, a VA examiner diagnosed the Veteran with lumbar spondylosis and L4/L5 disc protrusion. See id. The competent evidence thus shows that the Veteran has a current low back disability, which satisfies the first element of service connection. Next, the evidence shows that the Veteran is service-connected for pes planus. As such, the second element of a claim of secondary service connection, evidence of a service-connected disability, is met. Turning to the final element, nexus, the Board observes that there is conflicting medical evidence regarding whether the Veteran’s low back condition is related to service-connected pes planus. In this regard, the Veteran was afforded a VA examination in November 2019, where the examiner opined that the Veteran’s low back condition is less likely than not related to service, based on a lack of evidence of treatment for a low back condition in service, and evidence that the Veteran first sought treatment for a low back condition in 2017. See 11/21/2019 C&P Exam. In contrast, a June 2018 medical opinion written by Dr. D.S. indicates that it is at least as likely as not that the Veteran’s current low back condition is the result of antalgic gait resulting from his bilateral pes planus. See 07/27/2018 Medical Treatment Record – Non-Government Facility. The Board has reviewed both nexus opinions and concludes that the weight of the evidence is in at least in equipoise as to whether the Veteran’s low back condition was proximately caused or aggravated by his service-connected pes planus. On balance, the Board finds that Dr. D.S.’s opinion is more persuasive and probative, as it shows greater consideration of the relevant lay and medical evidence. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the credibility and weight of opinions are within the province of the adjudicator). Furthermore, the Board finds that the November 2019 VA medical opinion is entitled to limited probative weight. In this regard, the November 2019 VA examiner failed to consider all the relevant medical evidence of record, to include a December 1989 Consultation Sheet in the Veteran’s service treatment records (STRs), which shows that the Veteran’s pes planus had worsened since beginning active duty, resulting in low back pain. See 12/16/2014 STR – Medical at 3. The November 2019 examiner failed to consider this pertinent medical evidence, and the examiner’s opinion is thus inadequate. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009) (holding that VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits). Here, the Board finds that the criteria for service connection for a low back disability as secondary to service-connected pes planus have been met. As noted above, the Veteran has a current low back disability, diagnosed as ¬¬¬¬ lumbar spondylosis and L4/L5 disc protrusion. See 11/21/2019 C&P Exam. The Board further observes that the Veteran is service-connected for bilateral pes planus, effective February 2012. Thus, the Board finds that the first and second elements of a claim of entitlement to secondary service have been met. See Wallin, 11 Vet. App. at 512. Regarding the third and final element, nexus between the service-connected disability and the current disability, the Board finds that weight of the evidence supports a finding that the Veteran's low back condition was caused or aggravated by service-connected degenerative pes planus. In this regard, the Board finds Dr. D.S.'s June 2018 medical opinion to be competent and credible, and thus considered highly probative as to the material issue of nexus. As noted above, Dr. D.S.'s opinion shows adequate consideration of the relevant evidence, is supported by a medical rationale, and is therefore entitled to probative weight. In contrast, the November 2019 VA opinion failed to consider pertinent evidence and only relates to nexus on a direct basis, thereby failing to consider whether a causal relationship exists between the Veteran's current low back condition and his service-connected pes planus. Accordingly, and resolving doubt in favor of the Veteran, the Board finds that relevant evidence is at least in equipoise and tends to support a finding that Veteran's current low back condition was proximately due to his service-connected bilateral pes planus. See 38 C.F.R. §§ 3.102, 3.310(a); Wallin, 11 Vet. App. at 512. Entitlement to service connection for a low back condition, as secondary to service-connected pes planus, is therefore warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Tremont 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.