Citation Nr: 21013748 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 14-33 463 DATE: March 10, 2021 ORDER Entitlement to service connection for a back disability, to include as secondary to service-connected disability, is denied. FINDING OF FACT The Veteran's back disability did not originate in service, within a year of service, and is not otherwise etiologically related to the Veteran's service, or to a service-connected disability. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 1110, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs Regional Office (RO). In September 2016, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. By way of background, this matter was previously before the Board in December 2016, June 2019, and November 2020. The Board notes that the Veteran’s service treatment records (STRs) were lost in a fire and that all efforts to obtain or reconstruct them have been attempted. See September 2012 VA Memo. In cases such as these, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). The case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). The Board’s analysis of this Veteran’s claim is undertaken with this duty in mind. The Board further notes that, while the Veteran identified private medical providers in his hearing testimony, several attempts to recover records were unsuccessful. The Veteran also communicated in September 2020 that all relevant records had been submitted. See September 2020 VA Form 5103 Notice Acknowledgment. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, 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 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Lay evidence presented by a Veteran concerning continuity of symptoms after service may not be deemed to lack credibility solely because of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a back disability is denied. During his September 2016 hearing, the Veteran testified that he broke his left leg in service. It was repaired with a metal rod from his knee to his ankle, resulting in a leg-length discrepancy. To compensate, the Veteran wore a lift in his left shoe. Over the past 30 years or so, the Veteran experienced problems with his back giving out or spasming for no apparent reason. See September 2016 Hearing Testimony, pages 2, 6, 9, 10. He did not associate the back pain with his leg until he signed up for VA benefits and was told by the VA doctor that his spine was crooked and that a lift in his left shoe would do more harm than good. See July 2010 VA 21-4138 Statement in Support of Claim. The Veteran stated that his chiropractor, Dr. Mankamyer, stated the Veteran's leg injury caused a curvature in his spine. See September 2016 Hearing Testimony, page 10. As noted above, the Veteran’s STRs were lost in a fire and are unavailable. However, the Board observes the Veteran is service connected for a leg fracture with shin splints and left leg discrepancy, and instability of the left knee. See June 2012 Rating Decision – Narrative. In his February 2013 Statement in Support of Claim the Veteran related having many problems with his back during his post-service employment with a car manufacturer, from 1966-1993. He stated the company doctors gave him muscle relaxants, pain pills, and sometimes light duty to accommodate him. See February 2013 VA 21-4138 Statement in Support of Claim. This is supported by employer sick records the Veteran hand-carried to his June 2017 VA examination, stating the Veteran incurred an occupational injury in March 1968. At the time of injury Veteran endorsed encountering back pain that took his breath away when he lifted a tire, and he was diagnosed with a lumbar strain. See June 2017 C&P Exam, pages 2-3. During a June 2010 VA visit, the treating physician noted the Veteran’s left leg appeared to be shorter than his right. See August 2014 CAPRI, page 60. VA treatment records show the Veteran was diagnosed with lumbosacral spine pain in June 2010 and noted his history of an in-service leg surgery. See July 2010 Medical Treatment Record - Government Facility, pages 5, 12. July 2010 records show the Veteran presented to VA to evaluate his leg-length discrepancy. He endorsed being troubled by intermittent low back pain throughout his life with no specific injury described. The treating physician noted the Veteran displayed a normal gait and was capable of heel and toe walk. The Veteran was observed to have mild scoliosis of the spine, and the left side of the pelvic bone was seen to be slightly lower than the right. The left and right legs, from the pelvic bone to the ankle, measured 92 cm bilaterally. The doctor was unable to find a significant leg-length discrepancy. Regarding the observed back scoliosis, the doctor stated there did not seem to be a functional consequence. The doctor also wrote that use of a built-up shoe to correct any apparent leg-length discrepancy was not recommended. See August 2018 CAPRI, pages 17-18. VA received an opinion letter from the Veteran’s private chiropractor in December 2012. The chiropractor, Dr. Mankamyer, reported that the Veteran presented to his office in November of that year for examination and treatment of pain in the lower back, left sacroiliac joint, and sciatic nerves of the left leg. He noted that an examination of the Veteran revealed significant un-leveling of his pelvis, with the left side lower than the right. Over the course of the consultation, Dr. Mankamyer learned of the Veteran’s in-service leg injury and the resulting surgery. It was his professional opinion that the pain and dysfunction the Veteran was experiencing in his left lower back and sacroiliac joint was directly related to the abnormal biomechanics created by the leg-length inequality on the left side. He further believed that the rod in the leg was a direct contributory factor in this problem. See December 2012 Medical Treatment Record - Non-Government Facility. VA records from December 2012 note the Veteran had chronic low back pain with occasional sciatica, which was being treated by a chiropractor. See August 2014 CAPRI, page 18. VA radiographs from June 2017 showed straightening of the lumbar lordosis that may have related to muscular splinting. See August 2018 CAPRI, page 20. The Veteran was seen for a June 2017 VA examination. At the outset, the examiner noted the Veteran’s diagnosis of lumbosacral strain. The examiner also ascertained a leg-length discrepancy of 2 cm, with the left leg being shorter than the right. The Veteran endorsed a long history of back pain, saying ever since he worked for General Motors starting in 1966, he had a lot of problems. The Veteran was a lineman at General Motors; however, he denied any type of work-related injuries, and denied strenuous duties of bending, lifting while at work. He stated that he was given a lift in his shoe to correct leg-length discrepancy; however, it did not resolve his back pain. After an in-person exam and a review of the Veteran’s records, the examiner opined that the Veteran’s diagnosed lumbosacral strain was less likely than not due to or the result of the Veteran’s service-connected condition. He reasoned that the first documented report of low back pain was in March 1968, over ten years post-discharge. The examiner also pointed out that although records from the Veteran’s employer were not the best quality, enough were legible to determine the Veteran’s sustained back pain was the result of a work-related injury. He acknowledged the statement from the Veteran’s chiropractor, Dr. Mankamyer, attributing the Veteran’s back pain to leg-length discrepancy resulting from an in-service leg injury; however, the examiner noted that Dr. Mankamyer did not address the Veteran’s work-related injuries when giving a positive nexus opinion. Additionally, the examiner noted the Veteran’s use of a lift to correct his leg-length discrepancy and that the use of such lifts did not resolve the back pain. The fact that using lifts did not improve the Veteran’s symptoms relayed to the examiner that the lumbar strain was unrelated to leg-length discrepancy. See June 2017 C&P Exam. After the June 2019 Board remand for an addendum opinion, the Veteran was seen for a January 2020 VA examination. After an in-person exam and a review of the Veteran’s file, the examiner opined that the current severity of the Veteran’s back condition was not greater than baseline expectations. The examiner determined this baseline from the Veteran’s post-service employment medical records, which detailed multiple back-pain incidents, including a March 1968 lumbar strain from when the Veteran pulled a spare tire. The examiner also cited radiology records from June 2017 consistent with muscle strain diagnosis, and the June 2017 VA examiner’s opinion that the fact the Veteran’s lifts did not resolve symptoms indicated that his lumbar strain was unrelated to leg-length discrepancy. See January 2020 C&P Exam. The Veteran had another VA addendum opinion in July 2020. After a review of the Veteran’s records, the examiner was unable to determine a baseline level of severity for the Veteran’s back disability because the Veteran sustained a work injury years after leaving service. This work injury, from pulling a tire and straining his back, was consistent with an etiology of beginning his back pain, as the Veteran’s back pain was normal prior to this incident. The examiner further opined that, regardless of an established baseline, the Veteran’s back condition was less likely than not aggravated beyond its natural progression by the Veteran’s service-connected leg condition. The examiner reasoned that a review of the record made it clear that the Veteran’s back pain stemmed from a post-service workplace injury. While the Veteran’s chiropractor diagnosed the Veteran with leg-length discrepancy and had him wear a shoe lift, the examiner pointed to VA treatment records in which VA doctors found the Veteran was in good shape and did not require a shoe lift. The examiner further noted that VA treatment records confirmed there was no evidence of any compensatory mechanism that would cause a loading of the Veteran’s back. As the Veteran was not found to have any compensatory mechanism, and the etiology of the Veteran’s back pain was consistent with a mechanical injury from pulling on a tire, the examiner found no aggravation; rather, the examiner found that the Veteran’s back condition was independent from his leg-length discrepancy. See July 2020 C&P Exam. Most recently, a VA addendum opinion was obtained in December 2020. The examiner was requested to take special note of the Veteran’s 2 cm leg-length discrepancy, documented in his June 2017 VA examination, as well as the fact that the Veteran’s gait with a lift was observed to be normal. After a review of the Veteran’s file, as well as a review of current medical literature on the subject of leg-length discrepancy and its relationship to scoliosis, the examiner opined that the Veteran’s back condition was less likely than not incurred in or caused by the Veteran’s in-service leg injury. She reasoned that the evidence of record indicated his lumbar spine condition was an overuse injury from his civilian occupation. Akin to previous VA examiners, she pointed out that the positive nexus opinion from the Veteran’s chiropractor did not acknowledge his history of post-service civilian workplace injury. She further observed that the chiropractor did not provide limb length measurements. Additionally, she reasoned that if the Veteran’s back pain was secondary to limb length discrepancy, correction of that discrepancy with shoe lifts should have improved if not resolved the back pain. As the lift did not improve the Veteran’s symptoms, it indicated that leg-length discrepancy did not factor into his back pain. The examiner also took note that the Veteran was observed to have a normal gait in 2010, prior to being given a shoe lift from his chiropractor. This, coupled with the lack of limb length measurements at the time, indicated to the examiner that the Veteran’s leg-length discrepancy was functional as opposed to structural. The 2 cm difference in limb length noted on the 2017 C&P exam, according to the examiner, was within the normal variance. See December 2020 C&P Exam. Regarding aggravation, the examiner wrote that she was able to determine a baseline level of severity of the Veteran’s back condition based on the workplace medical records from the Veteran’s civilian occupation. Based on this, she assessed that the current severity of the Veteran’s back condition was not greater than the baseline, as his condition was consistent with a strain that began in the performance of post-military civilian occupational duties. See December 2020 C&P Exam. After a review of the evidence of record, the Board finds that service connection for a back disability is not warranted. While the Veteran has a current diagnosed back disability and has been granted service connection for an in-service leg injury, the evidence does not support a causal relationship between the two. The Board finds the December 2020 VA exam to be probative because the examiner thoroughly reviewed and discussed the relevant evidence, considered the Veteran’s contentions, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiner noted the concerns expressed by the Board in its remand instructions, the positive nexus opinion from the Veteran’s private chiropractor, and further considered medical literature on the relationship between leg-length discrepancy and lumbosacral strain. The examiner opined that the evidence indicated the Veteran’s back disability stemmed from a post-service workplace injury. As such, the Board finds that the December 2020 VA examiner’s opinion is persuasive and assigns it high probative weight. Conversely, as noted above, the sole positive nexus opinion of record comes from the Veteran’s private chiropractor, Dr. Mankamyer. While Dr. Mankamyer expressed his professional opinion that the Veteran’s back disability stemmed from his leg-length discrepancy and therefore his in-service leg injury, the fact remains that he did not consider the Veteran’s post-service workplace injury. As such, the Board assigns Dr. Mankamyer’s opinion reduced probative weight. Therefore, as the private opinion of record did not account for the Veteran’s full back-related medical history, the Board finds that the only competent medical evidence of record which reflects no etiological link between the Veteran's back disability and service. Based on the reasons and bases discussed, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, service connection for a back disability is not warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Slomka, Attorney-Advisor 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.