Citation Nr: 21021798 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-36 477 DATE: April 14, 2021 ORDER Service connection for a low back disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from March 1994 to April 1995. 2. A current low back disorder, diagnosed as degenerative joint disease (DJD) of the lumbar spine, was not shown in service, was not shown to a compensable degree within one year of service, symptoms were not continuous since service; a current low back disorder is not causally or etiologically related to service, and is not caused by or worsened beyond its normal course in severity by a service-connected disability. CONCLUSION OF LAW A chronic low back disorder was not incurred nor was it presumed to have been incurred in service, and is not proximately due to, aggravated by, or the result of a service-connected disability. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Turning to the evidence, the first element of service connection – a current disability – is met as the December 2020 VA examiner confirmed a diagnosis of degenerative arthritis of the lumbar spine since 2010. This is also shown in VA medical records throughout the appeal period. As such, the first element is met. Next, the second element – an in-service incurrence – is also met, as the Veteran competently and credibly described lifting heavy equipment in service, as well as “fast roping” out of helicopters. Although he was not diagnosed nor treated for a back disorder during service, the incidences described by the Veteran are consistent with his service, and as such, the second element is met. Finally, the third element – a medical nexus – is not met. An April 2014 VA examiner found it was less likely than not that the Veteran’s back disorder was caused by service, as he was never seen for back complaints while in service, and the first documented complaints regarding symptomatology were noted years after separation from service. Additionally, the examiner reasoned the back disorder was due to the Veteran’s post-service work in construction and as a plumber. In support of the appeal, a December 2017 private clinician posited that the low back disorder was caused by service. The clinician found that it was as likely as not that the Veteran’s current back pain was connected to service because there was both a history of back pain in service and the onset of more severe back pain in the year after service. The clinician continued that there were no intercurrent injuries since the Veteran was discharged, so it was as likely as not that his back complaints were related to constant limping on his right knee which necessarily threw a rotational force through the low back and caused back pain. This opinion is assigned lesser probative value as the rationale is inconsistent with the contemporaneous medical evidence. The clinician reasoned that the Veteran’s current back pain was related to back pain during and after separation from service, but also that it was because of the severity of his right knee pain. Additionally, while diagnostic testing was mentioned elsewhere in the correspondence, the opinion itself focused only on back pain and did not address any relationship between the current low back disorder and service. On the other hand, the VA opinion was based on a review of the record, including the service treatment records, was consistent with the medical evidence, and had a clear and reasoned rationale to include providing a separate and more likely etiology and is assigned more probative value. As such, the weight of the medical evidence does not support the third element of direct service connection. As to secondary service connection, the Veteran is service connection for a right knee disability (at 0 percent since March 2011) and has been diagnosed with a low back disorder. Therefore, the first two elements of secondary service connection – a current disability and a service-connected disability – are met. As to a medical nexus between the first and second elements, the December 2017 private clinician found that the back complaints were related to the Veteran’s constant limping on the right knee which threw a rotational force through the low back and caused pain. However, this finding is not supported by the medical evidence. VA clinical records in 2012 characterized a slight antalgic gait but the knee was stable. A 2014 note reflect that the Veteran was able to ambulate independently and had no significant gait deviation. In a June 2019 emergency room (ER) visit found that the Veteran’s gait was normal. In another ER visit in October 2019, he was noted to be ambulatory without difficulty. Similarly, in a June 2020 ER visit, he reported that his knees were “starting to hurt again” but he was not noted to have a limp due to a right knee disability and he was not found to be at risk for a fall and his gait was normal. He was discharged home ambulatory without difficulty. This evidence weighs against a finding of a constant limp of such a degree to cause an impact on the low back. Next, a February 2020 VA addendum opinion noted that two aspects of the Veteran’s back and knee disabilities mitigated against his low back pain being proximately due to his service-connected right knee disability. First, the examiner reflected that the Veteran claimed that his low back pain predated his right knee pain. This supports a finding that the low back pain was not caused by the right knee disability as the low back symptoms pre-dated the right knee problems. Next, the examiner emphasized that in order for DJD to develop because of a knee condition, it would have to be severe enough to significantly alter the gait, resulting in abnormal weight-bearing forces transmitted to the lower back. The examiner indicated that at the time of the April 2014 VA examination, the Veteran had normal range of motion of the right knee without pain on motion, and no joint tenderness, and as such it was less likely than not that these normal knee findings would result in an antalgic gait significant enough to lead to a chronic low back disorder. The same examiner submitted an identical opinion in June 2020 and used the same rationale in an October 2020 VA addendum opinion to explain why the Veteran’s right knee disability was not severe enough to aggravate a low back disorder. Additionally, a December 2020 VA examiner indicated it was less likely than not that the Veteran’s back disability was proximately due to his service-connected knee disability because he was not diagnosed with DJD of the back until 2010. While this opinion is afforded lesser probative weight as there is no rationale, the February and October 2020 VA opinions are well-reasoned and supported by evidence. The remands precipitating those opinions indicated that the December 2017 private opinion should be addressed in those opinions. While the February and October 2020 VA opinions do no not mention the private opinion by name, they address the specific grounds on which it was based, largely that right knee pain caused limping and the rotational force caused back pain. The VA examiner countered by referencing the normal range of motion, lack of pain, and lack of antalgic gait in the right leg back in the 2014 examination which occurred four years after he had already been diagnosed with DJD for the lumbar spine. As such, the VA examiner addressed both the contention of the December 2017 private opinion and relied on evidence consistent with the medical evidence. The VA examiner’s opinion is also supported by the clinical records discussed above which showed essentially a normal gait and no problems with ambulation. A further review of the VA and private medical records fail to show any positive relationship between the service connected right knee disability and the current low back disorder. As such, the weight of the medical evidence does not support service connection on a secondary basis. As to presumptive service connection, a review of the STRs and available medical records fails to show that the Veteran was diagnosed with DJD during service, or that it manifested to a compensable degree in the year following separation from service. As noted, while he reported that he had back pain in service, the medical evidence does not support that a chronic low back disorder was shown in service. Further, the record reflects that the Veteran was diagnosed with a low back disorder as early as 2010; however, in the March 1998 separation examination Report of Medical History, he denied having any back pain, although he indicated multiple other medical issues at that time. This included stating he had swollen or painful joints, and specifically referring to his knees rather than his back. Therefore, the medical evidence does not support continuity of symptomatology since service. Next, a January 2007 VA treatment note indicated that there was no tenderness on palpation to the back. A November 2008 VA treatment note showed that the Veteran had just transferred from another provider, and was first seen for an assessment, at which time he complained of pain in the jaw, headaches, knees, shoulders, and other non-musculoskeletal disorders, but did not mention back pain. Additionally, there are frequent report of knee pain during this period, and as such he received physical therapy and did not mention low back pain at any point. The first recorded complaint of low back pain was in December 2008. By 2010, the Veteran was getting regular treatment for back pain. Next, the Veteran filed a VA disability compensation claim for service connection for knees, hearing loss, and tinnitus in 1999 and a jaw disorder and posttraumatic stress disorder in 2008 but did not claim service connection for a low back disorder or make any mention of any low back symptomatology. The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology; however, here, he filed claims for service connection, but did not mention low back symptoms. This suggests to the Board that there was no pertinent low back symptomatology at that time. While inaction regarding filing a claim is not necessarily indicative of the absence of symptomatology, where, as here, a veteran takes action regarding other claims, it becomes reasonable to expect that he is presenting all issues for which he is experiencing symptoms that they he believes are related to service. In other words, he demonstrated that he understood the procedure for filing a claim for VA disability compensation, and he followed that procedure in other instances where he believed he was entitled to those benefits. Further, while absence of medical evidence alone cannot be the basis of a denial of service connection under the theory of continuity of symptomatology, here, there is medical evidence between service and treatment where he either denied back pain, or failed to list it among various orthopedic disabilities. Thus, it is the medical evidence of absence rather than the absence of medical evidence. As such, the medical evidence weighs against finding service connection warranted on continuity of symptomatology. The Board has considered the Veteran’s lay statements that his disorder was caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brendan A. Evans, 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.