Citation Nr: 21027157 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 10-25 503 DATE: May 4, 2021 ORDER Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities (abnormal gait), is denied. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities (abnormal gait), is denied. FINDINGS OF FACT 1. The Veteran's back disability is less likely than not related to any incident of active service; it is not caused or aggravated by his service-connected disabilities. 2. The Veteran's right hip disability is less likely than not related to any incident of active service; it is not caused or aggravated by his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. 2. The criteria of service connection for a right hip disability, to include as secondary to service-connected disabilities, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1971. This matter come before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, the appeal first came before the Board in September 2016, at which time the Board remanded the claims for further development. It subsequently denied the claims in April 2017. The Veteran appealed the April 2017 denial to the United States Court of Appeals for Veteran Claims (Court). In December 2017, the Court issued an order granting a Joint Motion for Remand (JMR). The order served to vacate and remand the April 2017 decision to the Board for further development and appellate review. In June 2018, the Board remanded the appeal to, among other things, obtain an addendum medical opinion. The Board remanded the appeal again in December 2020, as there had not been substantial compliance with the Board's prior remand. The Board is now satisfied that there has been substantial compliance with the June 2018 and December 2020 remands. Stegall v. West, 11 Vet. App. 268 (1998). Specifically, VA treatment records from July 2020 through December 2020 were associated with the record, and complete addendum opinions were provided for the Veteran's back and right hip disabilities. Likewise, the Veteran, through his representative, wrote in a March 2021 informal hearing presentation that he is satisfied that the RO has accomplished all tasks assigned by the Board in the previous remand. The Board notes that, in May 2016, the Veteran testified before a Veterans Law Judge (VLJ); a transcript of the hearing is associated with the record. In March 2021, VA advised the Veteran that the VLJ before whom he testified is no longer with the Board and afforded him an opportunity to have another hearing before a current VLJ. However, the Veteran did not respond within the allotted timeframe; therefore, the Board will consider the claim based on the evidence of record. Service Connection Generally, to establish service connection for a present disability, "the veteran must show (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 or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Regardless of whether a disability is deemed "chronic" for presumptive purposes, a continuity of symptoms from the time of service is a factor to consider in assessing any appeal. Service connection may be also established on a secondary basis for a disability that is proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) (2016); Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities (abnormal gait), is denied. 2. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disabilities (abnormal gait), is denied. The Veteran, through his representative, contends that his right hip and back disabilities are secondary to his service-connected disabilities as those cause him to walk with a limp, which in turn result in a systemic biomechanical breakdown, which caused or aggravated his current back and/or right hip disabilities. The Board finds that the claims should be denied. As an initial matter, the Board recognizes diagnoses of degenerative disc disease with lumbar fusion and degenerative joint disease of the right hip, manifested by pain, satisfying the primary criteria of service connection. The record does not reflect, and the Veteran does not contend, that his back and right hip disabilities are directly incurred in or caused by service. His service treatment records do not reflect a back or right hip injury in service (although the Board does recognize shrapnel wounds to other parts of his body), and the Veteran has not made any such contention. It is further noted that in November 2008, a VA examiner opined against any etiological link between his present disabilities and his in-service shrapnel wounds (discussed in more detail below). In support of that opinion, the examiner noted that hip and back pain did not start until many years after service, and prior to that, no pain was reported as related to his flesh wounds. This opinion was rendered by a medical specialist in contemplation of the complete medical record, and the Board finds it persuasive with regard to direct service connection. Therefore, as the evidence fails to show any in-service incident, illness or injury to which the present disabilities may be etiologically linked, the claim must be denied on a direct basis. Further, there is no indication in the record that the Veteran's arthritis of the low back or right hip manifested to a compensable degree either during or within one year of leaving service, meaning that presumptive service connection is not warranted. There is no evidence of continuity of symptoms from the time of service. Therefore, service connection on a presumptive basis is also not supported. The Veteran believes that his various service-connected disabilities cause him to walk with a limp, which in turn resulted in a systemic biomechanical breakdown that caused or aggravated his back and right hip disabilities. The Veteran testified at his hearing that a physician told him this was the case, and he has submitted articles in support of the general contention that a limp can be a contributing factor in conditions affecting his back and hips. The record reflects that the Veteran is service connected for a shell fragment wound of the right leg with muscle hernia; fractures of the third, fourth, and fifth metatarsals with degenerative joint disease; and neuropathy of superficial peroneal nerve. He is also service-connected for residuals of a shell fragment would of the left thigh; a shell fragment wound of the right Achilles tendon; a status postoperative tear of the medial meniscus of the left knee with degenerative joint disease; shell fragment wound of the right hand; shell fragment wound of the right thigh; shell fragment wound of the left leg; and shell fragment wound of the right elbow. The record contains a September 2003 independent medical examination regarding injuries sustained during the Veteran's employment, which was provided as part of the medical records from the Social Security Administration (SSA). The independent medical examination contained a back disability history showing that the Veteran experienced low back pain while hitting pop flies in his post-service career as a baseball coach. Per this note, the Veteran was diagnosed with lumbar strain and right sciatica in December 1999, and in January 2000 was found to have spinal stenosis and intractable radicular pain, most likely exacerbated by sports practice. The Veteran stated that prior to his September 1999 injury, he had no difficulties with his low back. This independent medical examination found that the Veteran walked without foot drop, limp, or ataxia. The examination concluded that work activities performed by the Veteran on or about September 1999, specifically hitting multiple pop flies at which time he developed back pain that began to radiate into the right leg, is the substantial contributing factor causing aggravation of degenerative disc disease and degenerative joint disease at L5-S1 that required extensive surgical repair in the form of fusion with instrumentation. A general VA examination was conducted in January 2008. This examination contained an extensive medical history. Of note, the examiner discussed his service treatment records, and stated that although the Veteran had a one-half inch atrophy in the left calf, he had a normal gait in September 1971. The Veteran reported that about five or six years prior, around 2002, he began experiencing right thigh and low back pain while coaching baseball. Among the diagnoses provided by the examiner were lumbar spine fusion with degenerative disc disease and degenerative joint disease of the right hip. The examiner concluded that it is less likely than not that the Veteran's service-connected disabilities caused the Veteran's spinal condition and right hip arthritis. In support, the examiner noted that the Veteran was working as a baseball coach when the symptoms increased leading to the spinal surgery and findings of arthritis of the right hip, and that the Veteran had full motion of his back and hips with a normal gait in 1971. The examiner noted that the Veteran did have an abnormal gait at the examination, although its onset was unclear. The examiner opined that it is less likely than not that the limp itself caused the Veteran to need spine surgery, nor would it have caused bilateral hip arthritis. The Veteran was afforded another VA examination in November 2008. This examiner noted that the Veteran's back and right hip pain onset in 1998, and that he had spinal fusion done in 2000. The examiner concluded that based on the history the Veteran had given, the current degree of pain that he was experiencing in his right hip and leg was unrelated to the shrapnel wounds. The Veteran gave a history of degenerative disc disease with a lumbar fusion and the pain in the right hip and right leg that did not begin until 1998, and the degenerative disc disease was discovered with workup of that pain. Prior to 1998, when the right hip and leg pain began, the Veteran did not have any pain related to the shrapnel wounds. An October 2016 private treatment note indicated that the Veteran had a lumbar fusion in 2002 after having right leg pain for approximately two years. The Veteran stated that he had been coaching baseball but does not recall a specific injury that would have caused this pain. The Veteran underwent another VA examination in November 2016. The examiner opined that it was less likely than not that the Veteran's degenerative arthritis of the lumbar spine was caused by or aggravated beyond its natural progression by the Veteran's service-connected disabilities. The examiner listed the Veteran's service-connected disabilities and found that his arthritis of the lumbosacral spine was most likely due to the aging process and stress on the lower back over the years associated with the activities of daily living. As to the Veteran's argument concerning a limp due to service-connected disabilities, the examiner found that his limp was mild, and thus less likely than not to cause or aggravate the spine disability beyond its natural progression. Similarly, the examiner opined that the degenerative joint disease of the right hip is most likely due to the aging process and weight-bearing stresses on the hips over the years associated with activities of daily living. An addendum opinion was provided in June 2019, specifically discussing whether the Veteran's service-connected disabilities caused or aggravated low back and right hip disabilities. This examiner concluded that the Veteran's low back and right hip disabilities were less likely than not proximately due to or the result of his service-connected disabilities. However, the opinion did not adequately address whether his altered gait, possibly the result of his service-connected disabilities, was a contributing factor of his claimed disabilities. Moreover, the opinion did not identify or explain the relevance or significant of any history or clinical findings relied upon in reaching the conclusion. The Veteran was afforded an addendum opinion in January 2021 to correct the inadequacy of the June 2019 examination. In the January 2021 opinion, the examiner opined that it is less likely than not that the Veteran's right hip and low back disabilities were proximately due to his service-connected disabilities resulting in an altered gait and/or limp. In support, the examiner wrote that the evidence of record shows his hip and back pain are documented prior to the onset of his abnormal gait. The examiner noted that a limp, by itself, does not cause trauma to a hip joint or to the vertebral column. The examiner opined that it was most likely, based on the records, that the antalgic gait without joint malalignment is a later result of years-after-service development of low back and hip arthritis, unrelated to service injuries. Turning to aggravation, the examiner opined that it was less likely than not that the Veteran's low back and right hip disabilities were aggravated beyond their natural progression by service-connected disabilities that resulted in altered gait and/or limp. The examiner noted that there was no malalignment of the hip or vertebral joints from 1971 to 2007. In support, the examiner stated that x-rays from 2007, and the 2008 VA examination indicated no joint malalignment for either the low back or right hip. The examiner wrote that the lack of malalignment of the joints is important, as for a gait disturbance to be clinically significant, it would have to affect alignment of the joints themselves. Thus, the examiner concluded, the Veteran eventually developed an abnormal gait as a result of his low back and right hip arthritis, as opposed to developing his low back and right hip conditions due to his gait. The examiner concluded that based on the record, "the antalgic gait without joint malalignment is a later result of the years-after-service development of low back and hip arthritis, unrelated to service injuries." The Board finds this opinion particularly persuasive, although when taken as a whole, the multiple opinions are persuasive with regard to secondary service connection in this matter. They were rendered by medical specialists following physical examinations and a complete review of the Veteran's medical history. They were further supported by detailed rationales which applied the facts of the case to known medical principles. Upon review of the complete record, the most probative evidence demonstrates that it is less likely than not that the Veteran's back and right hip disabilities were caused or aggravated by his service-connected disabilities, to include his now abnormal gait. In this respect, the Board acknowledges the Veteran's sincere belief that his back and hip disabilities are related to his service-connected disabilities. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause or aggravation of his low back and right hip disabilities, especially in light of the multiple VA specialists' well-reasoned conclusions to the contrary. See id. The Board does recognize that Veteran testified in his hearing that a doctor told him that his back and right hip were the result of a systemic biomechanical breakdown due to his abnormal gait. Although the Veteran is competent to relate his own experiences such as symptoms of pain, the connection between what a physician said and the layman's subsequent account of what the physician purportedly said, filtered as it is through a layman's sensibilities, is too attenuated and unreliable to constitute competent medical evidence in support of a claim. See Jandreau, supra. Unfortunately, the Board has reviewed the record but found no evidence which would contradict the findings of the VA examiners who provided the opinions addressed above. Despite the Veteran reporting that a physician connected his present disabilities to his other service connected disabilities, he has not provided any opinion from a medical professional stating as much. The Veteran has submitted general articles stating that foot dysfunction may be the etiology or a contributing factor in many pathological conditions, including those affecting the back and hips. Medical treatises and articles may be competent medical evidence, however, they are of less probative value than the opinions by VA examiners because the articles provide general statements, while examiners have provided opinions based upon the specific facts of the Veteran's case. Further, those articles were of record and available for review by the latest VA examiner who found that the Veteran's limp did not cause or aggravate his low back and right hip arthritis. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998); Wallin v. West, 11 Vet. App. 509, 514 (1998). (Continued on the next page) In sum, the evidence does not support that the Veteran's claimed low back and right hip disabilities were caused by any incident of active service, nor did they manifest to a compensable degree within the presumptive period of one year after service. Neither are they caused or aggravated by his various service-connected disabilities. The Board is certainly not unsympathetic to the Veteran's claim, however, upon consideration of all evidence and opinions, the Board finds that the claims must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald, 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.