Citation Nr: 21011687 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 09-00 459 DATE: March 2, 2021 ORDER Entitlement to service connection for a back condition, to include as secondary to the service-connected disabilities of bilateral pes planus and/or bilateral leg disability, is denied. FINDING OF FACT The Veteran’s current back disability first manifested many years after service and has not been medically related to her service; nor is the current back disability proximately due to, or aggravated by, a service-connected disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a back condition, to include as secondary to the service-connected disabilities of bilateral pes planus and/or bilateral leg disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from July 1973 to November 1975. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from an October 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Board previously remanded this matter in February 2012. In July 2014, the Board issued a decision denying the Veteran’s claim for entitlement to service connection for a back condition. The Veteran then appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2015, the Court granted a Joint Motion for Remand (JMR) and found that the Board failed to address conflicting evidence within the record, rendering the Board’s statement of reasons and bases in the July 2014 decision inadequate. Once again, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) in November 2015, September 2017, and February 2018 for further evidentiary development. In November 2018, the Board denied the Veteran’s claim. Again, the Veteran appealed the Board’s decision to the Court. In June 2019, the Court granted another JMR, finding that the Board failed to provide an adequate statement of reasons and bases as the Board did not fully address the Veteran’s contentions and a proposed theory of entitlement via secondary service connection. Pursuant to the JMR, the Court vacated the November 2018 decision and remanded the claim to the Board. In November 2019, the Board remanded the claim to the AOJ to obtain an adequate VA orthopedic examination and medical opinion. Subsequently, the matter was remanded by the Board again in October 2020 for further evidentiary development. In consideration of this appeal, the Board finds that there has been substantial compliance with the October 2020 remand directives, and as such, will proceed with appellate review. 1. Entitlement to service connection for a back condition, to include as secondary to the service-connected disabilities of bilateral pes planus and/or bilateral leg disability, is denied. The Veteran contends that her current back condition is related to her service-connected bilateral lower extremity disabilities, i.e., pes planus and/or her bilateral leg disability. In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). To establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id. Regarding a current disability, the Veteran has been diagnosed with lumbosacral strain, degenerative disc disease (DDD), and degenerative joint disease (DJD) with bilateral L5 spondyloses. See March 2012 VA examination. As such, the first element of service connection, a current disability, has been met. Regarding an in-service event, injury, or disease, the Veteran’s service treatment records (STRs) are silent for any complaints, treatment, or diagnoses relating to her back or lumbar spine. Indeed, the Veteran does not contend that her disability is related to her service; rather, she contends that her current back condition is a result of her service-connected bilateral pes planus and service-connected bilateral leg disabilities. As such, the Veteran has argued that she is entitled to service connection for her back condition on a secondary basis. To address this theory of entitlement, the Board requested that the AOJ obtain a medical opinion regarding whether the Veteran’s lumbar spine conditions were caused by or aggravated by her service-connected bilateral pes planus or bilateral leg disability. The Veteran was first afforded a VA examination for her lumbar spine in September 2007. Regarding etiology, the VA examiner opined that the Veteran’s lumbar spine disability was less likely than not caused by or a result of her service-connected flat feet. The VA examiner further opined that it is “[a]lso, unlikely that [the back condition] is due to the bilateral knee degenerative joint disease as it preceded the knee disabilities according to the records.” The VA examiner reasoned that “[the Veteran’s] pes planus is essentially corrected with the use of orthotics. No effect on the spine would then be expected based on the physical exam.” In the February 2012 Board decision, the Board remanded the Veteran’s claim and directed the AOJ to obtain an addendum medical opinion as the September 2007 opinion did not address aggravation in the context of secondary service connection, and was therefore, inadequate. As such, a second VA examination was performed in March 2012. The VA examiner opined that the Veteran’s low back disability was not aggravated (meaning, increased in severity beyond the natural progression) by her service-connected bilateral pes planus. The VA examiner reasoned that “[t]here were no medical provider notes that indicated that the low back was permanently aggravated by the pes planus. There was no indication of permanent worsening of pes planus over time. Her last VA exam also stated that there would be no effect from the pes planus on the spine due to the disorder being corrected with orthotics. Literature does not indicate that the problems the Veteran has listed above are due to pes planus. There was no significant, abnormal gait or abnormal weight bearing. The Veteran has other risk factors for the current findings on the spine, such as aging and obesity. Based on lack of connection for disorder in relation to pes planus in records, current physical exam, and medical knowledge, there is no permanent aggravation of the lower back condition by the pes planus.” In the Court’s April 2015 decision remanding the claim to the Board, the Court emphasized that the March 2012 VA examiner’s opinion was supported by the rationale that there was no medical provider that indicated that the low back was permanently aggravated by the Veteran’s pes planus and that there had been no indication of permanent worsening of pes planus over time. However, the Court emphasized that the medical evidence of record reflects that an April 2007 VA examiner characterized the Veteran’s service-connected pes planus as “progressively worse since onset” and that this finding was not addressed by the Board and as such, remand was necessary. The Board then remanded the Veteran’s claim in November 2015 and directed the AOJ to obtain another opinion addressing aggravation of the Veteran’s back disability by her service-connected pes planus. Subsequently, a VA examination and addendum opinion were obtained in January 2017. The January 2017 VA examiner opined that the Veteran’s low back disability is less likely than not proximately due to or the result of the Veteran’s service-connected condition. As rationale, the VA examiner stated “[t]here are two studies in the available peer reviewed literature that suggest an increased incidence of low back pain in women with moderate or severe pes planus. However, there are no studies confirming a causal link between pes planus and degenerative disc disease or spondylosis in the thoracolumbar spine. Chronic planovalgus deformities of the bilateral feet would produce an alteration of gait. There are no studies available that support a link between a chronically altered gait and causation or permanent aggravation of back conditions. There is an x-ray from April 1991 consistent with early lumbar degenerative disc disease, but no clinic or ER note for this visit could be found in the available records. There is no documentation of any back complaints prior to March 2004, while she was working for the USPS in a job that had her standing for eight hours a day, 40 hours per week. Spondylosis and degenerative disc disease were diagnosed based on x-rays taken at this time[.]” The VA examiner further stated that “[t]here is no evidence to support a contention that lumbar DDD or spondylosis are caused by pes planus. Bilateral pes planus would produce an alteration of gait, but there are no studies available that support a link between a chronically altered gait and causation or permanent aggravation of lumbar DDD or spondylosis. Lumbar DDD and spondylosis are chronic, degenerative disease processes related to chronic wear and tear, exacerbated by repetitive or specific injuries. The Veteran reports a 20-year history of working for the United States Postal Service in a job requiring standing for long periods, repetitive bending, stooping, twisting, and lifting of heavy weights. The Veteran also reports a history of multiple falls. Lumbar DDD and spondylosis could certainly be aggravated by a chronic alteration of gait, as would be expected by chronic planovalgus deformities of the bilateral feet. The back conditions would also be aggravated by her post-service employment with the USPS, and the multiple reported injuries due to falls. There is no way to establish a baseline severity for her back condition without resorting to mere speculation. The permanent exacerbation of the back conditions by the service-connected feet condition is certainly within the realm of medical possibility, but there is no evidence in the available peer-reviewed literature that would allow for a statement or probability of causation or aggravation without resorting to speculation[.]” The Veteran’s claim returned to the Board and in September 2017 was again remanded to the AOJ for further evidentiary development. The Board found that a remand was necessary because the January 2017 VA examiner’s opinion was inadequate as it used the incorrect legal standard for aggravation (i.e., aggravation meaning beyond natural progression versus any increase in disability). The Board also found that because the January 2017 VA examiner referenced multiple possible causes for the Veteran’s lumbar spine disability, a new opinion was necessary for clarification. As such, the AOJ obtained another VA examination and opinion in November 2017. The November 2017 VA examiner opined that the Veteran’s back condition was less likely than not proximately due to or the result of the Veteran’s service-connected condition. The VA examiner reasoned that he was “[u]nable to confirm a current chronic diagnosis with current available records and/or today’s exam. The Veteran’s DDD was not caused by or aggravated by the service-connected pes planus. Therefore, no nexus or plausible secondary relationship established.” Regarding the aggravation prong of secondary service connection, the VA examiner opined that the Veteran’s back condition was also less likely than not aggravated by her service-connected condition. The VA examiner stated “[the Veteran] has valgus deformity of both ankles that show chronic pes planus but cannot show DDD in her lumbar spine caused by pes planus.” In February 2018, the Board determined that the November 2017 VA examiner’s opinion was inadequate as it did not consider that fact that the Veteran’s service-connected pes planus causes an alteration of the gait, which could cause or aggravate her back condition, due to antalgic gait. As such, the Board remanded the claim for a new VA examination and accompany opinion. The Veteran was subsequently afforded a VA examination in March 2018. The March 2018 VA examiner opined that the Veteran’s low back condition was less likely than not proximately due to or the result of the Veteran’s service-connected bilateral pes planus. The VA examiner noted that his opinion was predicated on a review of VBMS, CPRS, VISTA, a physical exam, diagnostic tests, and medical literature. The VA examiner stated “[t]he Veteran has been diagnosed with DDD of the lumbar spine. This results when there is repetitive trauma to the spine over a long period of time. The Veteran has also been diagnosed with intervertebral disc syndrome (IVDS) which is a disorder where the discs between the vertebrae in the spine are abnormal, and can cause symptoms such as shooting back pain, numbness and tingling in the legs, and severe back pain… Pes planus or ‘flatfoot’ develops when the arch of the foot collapses and the stepping mechanism of the feet are changed. This can be fixed using orthotics or arch supports. The Veteran has severe pes planus according to podiatry. Over the multiple exams since 2007, provide notes show no long-term sequela of the pes planus, such as pronation or abnormal angling of the feet, or a change in the shift of the body weight called ‘midline shift’. The Veteran’s gait is minimally antalgic but not substantially abnormal. The Veteran’s last podiatry note states that overall, the Veteran stated she was doing well with orthotics… The Veteran’s gait is very mildly affected by her pes planus and lower extremity issues. Medical literature review showed medical evidence linking severe antalgic gait disturbances with low back pain and moderate to severe uncorrected foot issues with low back pain, but the back issues showed reversibility once the foot issues were addressed. There is no medical evidence to support a nexus that the Veteran’s low back condition is secondary to his pes plans as her pes planus is adequately corrected, her gait shows minimal abnormality on today’s exam and no significant gait abnormality is documented on previous exams, and medical literature review is negative for pes planus as the cause for DDD or IVDS of the spine.” In November 2018, the Board denied the Veteran’s claim for service connection. The Veteran appealed this decision to the Court, and in June 2019, the Court vacated and remanded the claim. The Court found that that Board failed to address several arguments raised by the Veteran and as a result, remand was necessary to address the Veteran’s contentions. Subsequently, the Board remanded the claim in November 2019 for a new VA examination and opinion to address the deficiencies raised by the Court. The Veteran was examined in December 2019. The December 2019 VA examiner opined that “[s]evere unilateral lower extremity orthopedic issues can occasionally cause spinal problems as a result of asymmetric, altered gait, especially when it affects pelvic tilt and gait rhythm. However, in the setting of bilateral orthopedic issues, causation of spinal problems is generally unlikely. There is no particular circumstance or event in this case which provides a likely exception to this general rule, indicating that [the Veteran’s] current low back problems are likely neither caused, nor exacerbated by, her bilateral lower extremity orthopedic issues, including pes planus.” The Board again remanded the claim in October 2020, citing inadequate rationale in the December 2019 VA opinion. Consequently, an addendum medical opinion was obtained in October 2020. Per numerous Board remands, the VA examiner was addressed to review the entire record, including the Veteran’s competent lay statements and report regarding the onset and progression of her current symptomatology, and then to opine whether it is at least as likely as not that the Veteran’s current back condition is due to her service-connected lower extremity disorders (individually or in combination), to include bilateral pes planus or bilateral leg conditions, and to opine whether it is at least as likely as not that the Veteran’s back condition is aggravated by the same. The VA examiner noted that “[a]ll records and available Veteran statements are always considered as part of our normal protocol.” Regarding the specifics of the Veteran’s case, the VA examiner stated “2016 podiatry note is reviewed, indicating successful use of orthotics for pes planus with resulting normal gait. Further, even in the setting of abnormal gait resulting from pes planus, this is typically symmetrical and does not tend to lead to either cassation of or aggravation of spinal problems. In reference to [the Veteran’s] chronic knee problems, these are also symmetrical per available records, without significant gait assymetry, and thus, are likely noncontributory towards the development of or aggravation of spinal disorders. In summary, there is no evidence of either causation or aggravation of the Veteran’s chronic spinal disease by the Veteran’s service-connected pes planus or other lower extremity orthopedic disorders.” The Board finds that the preponderance of evidence is against the finding that the Veteran’s current back condition is due to or aggravated by her service-connected disabilities, to include her bilateral pes planus and bilateral leg disabilities. While the Veteran argues that there is evidence that she has severe antalgic gait, which has been shown to lead to low back defects, the Board finds that the weight of the medical evidence in fact demonstrates that the Veteran does not have severe antalgic or abnormal gait that would result in exacerbation of her current low back disability. The September 2007, February 2012, January 2017 VA examinations noted no abnormal gait. Although a single July 2016 VA podiatry note indicated that the Veteran has “severe overpronation in stance and gait,” the March 2018 VA examiner subsequently indicated that the Veteran’s gait was “minimally antalgic, but not substantially abnormal” and classified the Veteran’s gait as having a “minimal disturbance” as a result of her service-connected disabilities. VA treatment records from December 2019 indicate that the Veteran’s gait was “coordinated and smooth.” In the entire record summarized above, few treatment providers have indicated that the Veteran exhibits a significant abnormality in her gait. Most VA examiners and treatment providers who have examined the Veteran have indicated that her gait is normal and most importantly, corrected with the use of her orthotics. Further, the October 2020 VA examiner opined that even in the context of an abnormal gait resulting from the Veteran’s service-connected pes planus, the effect is typically “symmetrical,” which would not tend to cause or aggravate a lumbar spine condition. Additionally, the Veteran argues that the VA examinations of record are inadequate because they do not contain an opinion addressing the etiology of the Veteran’s disability from an orthopedic specialist. The Court has long held that the level of training, education, and experience of the person conducting the examination is a factor that may be considered when weighing a medical opinion. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007), dismissed sub nom. Cox v. Peake, 263 F. App'x 864 (Fed. Cir. 2008). A doctor's area of expertise can be relevant to the probative value assigned to a medical opinion. See Gunn v. Nicholson, 23 Vet. App. 504 (2007). But, VA's duty to assist, as a matter of law, does not require that an examination be conducted by any specific type of specialist. See, e.g., Cox, 20 Vet. App. at 563. In this case, the Board finds that the October 2020 VA opinion is highly probative on the issue of nexus between the Veteran’s service-connected disabilities and her current low back condition. There is no indication that the disease processes at issue are of such unique complexity as to require a specialist. The Veteran’s has not asserted why such a specialist would be needed. Therefore, the Board finds the Veteran’s argument unpersuasive. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, i.e., whether the Veteran’s back condition was etiologically caused or aggravated by her other service-connected musculoskeletal disabilities, such question falls outside the realm of common knowledge of a lay person as it involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (noting that although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). In contrast, the October 2020 VA opinion is the only competent and probative medical opinion of record regarding etiology. That VA examiner considered the Veteran's claims file and medical history in the report. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Ardison v. Brown, 6 Vet. App. 405, 407 (1994). Additionally, the VA examiner provided an etiological opinion, complete with the underlying reasons described above. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The October 2020 VA examiner relied on the peer-reviewed medical literature, medical evidence, as well as lay statements of the Veteran and addressed the seemingly conflicting treatment records regarding the Veteran’s “abnormal” gait with a full and detailed rationale as to why the Veteran’s current lumbar spine disability is not likely to have been caused or aggravated by her other service-connected disabilities. Consequently, the Board assigns great probative value to the October 2020 VA nexus opinion. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply. Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). The Veteran's claim for entitlement to service connection for a back condition is denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.