Citation Nr: 21013969 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-21 510 DATE: March 11, 2021 ORDER Entitlement to service connection for a low back disorder, diagnosed as lumbar degenerative disc disease and chronic low back pain, is granted. FINDING OF FACT The Veteran’s low back disorder is secondary to his service-connected pes planus. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder, diagnosed as lumbar degenerative disc disease and chronic low back pain, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1963 to December 1963 and from January 1968 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In February 2019, the case came before the Board. The Board found that the Veteran submitted new and material evidence to reopen his claim for entitlement to service connection for a low back disability. The Board then remanded the Veteran’s claim for a VA medical opinion in order to obtain a VA examination to determine the nature and etiology of any back disability. In October 2019, the case returned to the Board. The Board found the June 2020 VA medical opinion inadequate and ordered an addendum opinion. 1. Entitlement to service connection for a low back disorder, diagnosed as lumbar degenerative disc disease and chronic low back pain The Veteran contends that his low back disorder is secondary to his service-connected pes planus. In order to establish service connection for the claimed disability, there must be (1) medical 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) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 C.F.R. §§ 3.309. In addition, for secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has aggravated the nonservice-connected disability for which service connection is sought. See 38 C.F.R. § 3.310. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the Veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau, supra. Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Evans v. West, 12 Vet. App. 22, 30 (1998). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the Board notes that the Veteran’s disability has been diagnosed as degenerative disc disease of the lumbar spine and chronic low back pain. As to the Veteran’s lay statements, the Board acknowledges that the Veteran has attributed his low back symptoms to his service-connected bilateral pes planus. The Board further notes that the Veteran has reported experiencing low back pain for over 40 years. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination in December 2020. The Veteran reported that he had back pain since 1970, but he never was treated for it because he feared that he would lose his job. The examiner opined that the “long gap between his Air Force career and onset of back pain requiring intervention in 1994 leaves the gist of his claim reliant on scientific proof that pes planus causes low back pain.” The examiner stated that there is no evidence in my review of the 2018 letters from Dr. S. and Dr. D., or the December 2020 letter from Dr. H., to validate the Veteran’s assertion his back pain is the result of his service-connected pes planus. The examiner stated that he reviewed the medical journal article that was cited by Dr. H. The examiner stated that the cited article failed, by the author’s admission, to prove the hypothesis that pes planus and pes cavus are direct causes of LBP. The examiner stated that “they conclude that there “may be an association: between foot deformities and low back pain, but that association was not supported by the data they collected from 1930 participants.” The examiner found that the Veteran’s low back disorder is less likely as not due to or aggravated by his service-connected pes planus. The examiner opined that “in the absence of medical literature evidence that pes planus is a direct cause of low back pain, it is less likely than not his lumbar DDD with arthritis and IVDS is proximately related to, the result of, or incurred during his service through June 1969.” The examiner also stated that “as to aggravation of his lumbar spine symptoms beyond its natural progression,” the series of CT scans and MRIs of the lumbar spine, dating back to 1997 demonstrate the expected progression of a spine condition with DDD, arthritis and IVDS. “It is less likely than not the pes planus caused the lumbar spine disease to be aggravated beyond it's normal progression.” The Board find the examiner’s opinion inadequate because he relied on the absence of treatment records and did not account for the Veteran’s credible lay statements regarding low back symptoms. Moreover, the Board further finds that this opinion is inadequate because the examiner did not consider if pes planus is a contributory factor for the Veteran’s low back disorder. Instead, he simply discounted the medical journal article cited by the Veteran’s doctor because it did not find that pes planus is a direct cause of low back pain. The Board notes that a private treatment record from August 2018 stated that “in many patients with back pain a functional orthotic device is used to control their abnormal biomechanics of their feet and lower extremity as well as help to rebalance intrinsic and extrinsic musculature throughout the lower extremity, place the foot in a more normal functioning position in gait. This rebalance will directly affect the lower back. It is obvious that in the case of the Veteran, his severe flat feet have largely contributed to his lower back problems.” In June 2018, the Veteran’s doctor provided a letter in support of the Veteran’s claim. The doctor stated that the Veteran has been treated through this office with the fabrication of functional orthotics to reduce the pronation of the subtalar joint of both feet. This improved his lower back symptoms by decreasing the lordosis associated with flat feet. In December 2020, the Veteran submitted an additional letter from his private doctor. The doctor stated that this letter is in support of the Veteran's claim of low back pain caused by chronic acquired pes planus. The doctor stated that it is documented in the medical literature in multiple studies, including the famous Framingham Foot Study from 2013 which included 1930 patients, that the presence of flat feet is associated with the development of low back pain. The doctor stated that another such study, published by Foot in 1999 showed the same correlation between patients with flat foot deformity and the development of low back pain. The doctor stated that multiple case reports describe the association of relief of back pain with treatment of the flat feet alone. The doctor stated that therefore, I recommend that the Veteran’s acquired flat foot deformity is a significant contributing factor to his chronic low back pain. In sum, the Board finds that service connection is warranted for the Veteran’s low back disorder, diagnosed as lumbar degenerative disc disease and chronic low back pain. After a review of the record, the Board finds that the evidence, both positive and negative as to the issues of service connection for a low back disorder is in equipoise. Based on the foregoing and resolving all reasonable doubt in the Veteran’s favor, the Board finds that service connection is warranted for the Veteran’s low back disorder, diagnosed as lumbar degenerative disc disease and chronic low back pain. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.