Citation Nr: 21027300 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-09 077 DATE: May 5, 2021 ORDER Entitlement to service connection for a lumbar spine disorder, to include as secondary to service connected right knee strain, is denied. FINDING OF FACT The Veteran's lumbar spine disorder was not incurred in service, is not otherwise causally or etiologically related to service, is not caused or aggravated by her service connected right knee strain and arthritis did not manifest within one year of service discharge. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder, to include as secondary to service connected right knee strain, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 2007 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by a Department of Veterans Affairs Regional Office (RO). The July 2011 rating decision denied the Veteran's claim for service connection and the Veteran subsequently appealed her case to the Board. This matter was previously before the Board in May 2015, April 2018, February 2020, and December 2020, whereupon it was remanded each time to allow for additional development, to include identifying and obtaining outstanding records and to provide the Veteran with adequate examinations and etiology opinions addressing direct causation and secondary causation or aggravation. Such records have since been associated with the record and the Veteran has been provided with adequate examinations and opinions addressing the etiology of her condition by causation and aggravation. Thus, the Board finds that VA has satisfied its duties and finds that there has been substantial compliance with its remand. Stegall v. West, 11 Vet. App. 268 (1998). The matter is now again before the Board for adjudication. Relevant Statutes and Regulations Veterans are entitled to compensation if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. Generally, to establish direct service connection a 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established on a secondary basis for a disability that is shown to be 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 medical evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). For certain chronic diseases, such as arthritis, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307, 3.309. For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for a lumbar spine disorder is denied. The Veteran contends that her lumbar spine disorder is either a direct result of her service or as secondary to her service-connected right knee strain. Service treatment records are silent for any complaints, treatments, or diagnoses of a lumbar spine disorder. A post-service VA treatment note from November 2011 documents the Veteran's gait as normal. VA treatment notes from October 2014 document the Veteran presenting to the emergency room with complaints of chronic back pain. The Veteran reported that she had suffered a recent injury after reaching and overextending herself, "thr[owing] her back out." A November 2014 VA treatment note documents the Veteran's "acute low back pain." At that evaluation, the Veteran reported having ongoing lower back pain since suffering a fall and twisting her ankle while in-service in 2007. The Veteran reported that her pain progressively worsening and described the pain as "sharp across her back." A May 2015 VA treatment note documents the Veteran's back pain as "progressive, severe, and chronic," with pain radiating into her left lower leg. The Veteran suffered from occasional numbness and weakness in both legs and had fallen/collapsed in October 2014. This note also mentions that the Veteran had suffered a fall. The Board has first considered whether service connection is warranted on a presumptive basis. However, the clinical evidence of record fails to show that the Veteran manifested arthritis to a degree of 10 percent within the one year following her discharge from service in February 1991. As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. With regards to direct and secondary service connection, a November 2016 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's diagnosed lumbosacral strain was incurred in or caused by her service. The examiner supported their opinion with the rationale that although the Veteran had reported knee pain during service, such pain was over 9 years ago and unlikely to have resulted in any significant ailments years later (stated as "less likely to have sequelae of any significance"). Additionally, the examiner noted that the Veteran's in-service physical examination showed minimal limitations for sprains and knee lacerations. Therefore, the examiner opined that it was less than likely that the Veteran's claimed back condition is due to military service. The Board found this opinion to be inadequate in its May 2018 remand as its opinion regarding secondary service connection did not have a rationale. The Board is therefore affording this opinion little, if any, probative weight. The Veteran was then provided an addendum opinion in April 2017. Opining on secondary causation, the examiner stated that it is less likely than not (less than 50 percent probability) caused by the Veteran's service-connected right knee disability. The examiner did not address secondary aggravation. The Board found this opinion to be inadequate in its May 2018 remand as it did not address aggravation and inaccurately assumed a negative nexus due to a lack of documentary evidence. The Board is therefore affording this opinion little, if any, probative weight. An addendum medical opinion was provided in October 2019. In regard to direct causation, the examiner provided a negative nexus opinion, opining that it was less likely than not (less than 50 percent probability) that the Veteran's lumbar spine disorder was incurred in or caused by her service. The examiner noted that there was no evidence of back complaints during service and also noted a 2014 car accident which the Veteran had reported to increase her back pain. In regard to secondary service connection, the October 2019 examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's lumbar spine disorder was caused by her service-connected right knee strain. The examiner provided the rationale that the lumbar spine and right knee strain are not medically related and were separate entities entirely. The examiner also opined that the medical literature did not support a medical relationship between the two conditions and thus a nexus was not established. The Board found this opinion to be inadequate in its February 2020 remand as the rationale provided was based on general conclusions and not on facts specific to the Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner had opined that there was no evidence of the Veteran's service-connected knee disability causing an instable gait which would then affect the Veteran's lumbar spine. The examiner had not considered the Veteran's lay statement of her knee "giv[ing] way" upon extending walking and that she was prevented from riding a bike. Therefore, the Board is affording this opinion little, if any, probative weight. The Veteran was subsequently provided another VA addendum medical opinion in March 2020. Regarding secondary causation, the examiner opined that it is less likely than not that the Veteran's lumbar spine disorder/lumbosacral strain is caused by her service-connected right knee strain. The examiner provided the rationale provided that there was not ongoing gait compensation secondary to the right knee condition that could have led to the lumbosacral strain. Thus, the examiner opined that a nexus could not be established. Regarding secondary aggravation, the examiner also provided a negative nexus opinion, and offering the same rationale as offered for secondary causation. The Board found this opinion to be inadequate in its December 2020 remand as the examiner had not provided a cogent rationale based on evidence specific to the Veteran's case. Therefore, the Board is affording this opinion little, if any, probative weight. A January 2021 VA examiner opined that it is less likely than not that the Veteran's back disorder/lumbosacral strain is caused by her service-connected right knee strain. The examiner provided the rationale provided that the pathophysiology of the Veteran's claimed back disorder would not be influenced by gait accomodation due to the knee, that there are rare exceptions include three to five percent leg-length discrepancy and/or an exaggerated Trendelenburg gait and that neither was evident in the present matter. In regard to aggravation, the examiner also provided a negative nexus opinion, opining that it is less likely than not that the Veteran's service-connected knee disability aggravated her lumbar spine disorder. The examiner further reasoned that October 2014 emergency room and 2019 magnetic resonance imaging (MRI) scan records confirmed diagnoses of degenerative disc disease, degenerative joint disease and radiculopathy, that the Veteran reported an acute injury at the time of the October 2014 treatment, and that it is highly unlikely that the findings of the 2014 MRI could have existed during service without presentation to medical care. The examiner supported this conclusion with the rationale that the medical literature did not show a relationship between the two conditions and that there was no evidence of the knee disability aggravating the Veteran's back condition beyond the natural course of its progression, that her lumbar spine would not be affected by gait compensation and that there was not ongoing gait compensation secondary to the right knee condition that could have led to the lumbosacral strain. The examiner further opined that the Veteran's lumbar spine disorder may instead be related to injuries suffered after service, i.e. the acute injury sustained from her automobile accident in 2014, post-service or also due to degenerative aging-related factors. The Board finds this opinion highly probative as the examiner reviewed the claims file, interviewed the Veteran, and provided an opinion supported by a clear rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). There is no contrary opinion of record. In reaching this determination, the Board has also considered the lay assertions of record, including the contentions of the Veteran in support of a medical nexus. The Veteran contends that her in-service knee injury led to her current lumbar spine disorder. As a lay person, the Veteran is competent to report observable symptoms, such as lower back pain. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (holding that, "[a]s a layperson, an appellant is competent to provide information regarding visible, or otherwise observable symptoms of disability"); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (Lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994). Lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau, 492 F.3d at 1377 n.4. However, while the Veteran is competent to report having experienced symptoms of a back condition, she is not competent to opine on the etiology of the condition and/or to determine that these symptoms are somehow related to either her active service or her service-connected knee disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board finds that the VA medical opinion, particularly the January 2021 VA examination is adequate and highly probative as the examiner predicated their opinion and rationale on an accurate reading of the service treatment records as well as the medical and lay evidence contained in the Veteran's claims file. See Nieves-Rodriguez v. Peake, supra. Consequently, the Board gives more probative weight to the medical evidence in this case. Upon a thorough review of the record, and placing probative emphasis on the adequate VA medical opinion on record, the Board finds that evidence does not rise to at least equipoise for the Veteran's claim for service connection on a direct or secondary basis. The record is entirely silent as to any complaints, treatments, or diagnoses relating to the lower back during the Veteran's service and within a year of her discharge. The January 2021 VA etiology opinion is highly probative and there is no contrary opinion of record. In sum, the Board finds that the probative medical evidence of record is overwhelmingly against a finding of a medical nexus, either as directly related to military service, or as secondarily related to the Veteran's service-connected right knee strain, either through causation or aggravation. (Continued on the next page) Therefore, as the preponderance of the evidence is against the Veteran's claim for service connection on a direct and secondary basis, the Board finds that the Veteran's claim must be denied. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.