Citation Nr: 21029295 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-37 615 DATE: May 13, 2021 ORDER Service connection for spondylosis of the lumbar spine (low back disability) is denied. FINDINGS OF FACT 1. The Veteran's low back disability is not linked to disease or injury incurred or aggravated in active service. 2. The Veteran's low back disability has not been caused or aggravated by her service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1979 to December 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matter in March 2019 for further development. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between the current disability and the disease or injury incurred or aggravated in service (the "nexus" element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). For conditions noted during service (or in the presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service ("intercurrent" causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for arthritis if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. § § 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). Low Back Disability The Veteran states that she injured her back in service when she fell from a 15 foot pole in an obstacle course during a physical training exercise. See May 2013 VA Treatment Record; June 2014 Notice of Disagreement (NOD). In the alternative, she states that her low back disability has been caused or aggravated by an abnormal gait associated with her service-connected left knee disability. See February 2013 VA 21-526b (Veteran's Supplemental Claim for Compensation); August 2016 Correspondence. For the following reasons, the Board finds that service connection is not established. The service treatment records do not show treatment or complaints of back pain or a back injury. Moreover, the Veteran has not stated that she received treatment for her back during service; on the contrary, she has stated that she "did not complain about [my] ailments," referring in part to her lumbar spine. See June 2014 NOD. The service treatment records reflect that in March 1979, she was seen in the emergency room for pain in her left arm after falling off a pole. She was diagnosed with a left elbow (medial epicondyle) fracture, and placed on profile for eight weeks. There is no mention in the records of injury or symptoms involving any other area from this fall. The November 1980 separation examination report shows a normal clinical evaluation of the spine. The Veteran denied a history of recurrent back pain in the November 1980 report of medical history at separation. She separated from service in December 1980. Private chiropractic treatment records dating from 1997 (when the Veteran began treatment, according to a June 2014 letter from the chiropractor) to June 2009 generally do not show complaints of low back pain. Rather, they show complaints with regard to the upper back ("UB"), neck, shoulder, and foot. While the handwriting is difficult to decipher, it seems the first mention of the low back ("L/B") in these records is a June 2009 entry, which reflects that the Veteran had a low back strain after picking up a lawn mower. Next, a May 2010 entry states that she had low back ("L/B") symptoms after pulling up a rose bush that morning. There is no mention of an earlier history of low back symptoms or a low back injury. In February 2013, the Veteran filed a claim for service connection for her low back disability as secondary to her service-connected left knee disability. See February 2013 VA Form 21-526b. A May 2013 VA treatment record states that the Veteran reported having numbness of her right hand and pain going all the way up her arm. She stated that these symptoms were "from when she fell off a pole" that was 15 inches high "and injured her upper back when she fell on her right hand." A July 2013 VA treatment record reflects that the Veteran reporting falling the week before when her left knee gave out. She stated that "[n]ow her right knee feels like it scrapes under [the] patella when she bends it," and that her right hip "now feels like" it will give out. Her low back was also painful. A July 2013 VA x-ray study of the lumbar spine showed mild diffuse loss of the lumbar disc heights with associated mild diffuse endplate and facet hypertrophy. The Veteran was diagnosed with mild lumbar spondylosis. The Veteran underwent a VA examination in December 2013 for purposes of determining entitlement to service connection for her low back disability. The examination report states that she did not recall any injury to her back in service. After separation, she had a gradual onset of low back discomfort after giving birth, in 1981. The pain was across both sides of her low back, and was atraumatic in onset. She felt back discomfort about once per week. She went to a chiropractor from 1981 to 1993 and experienced complete relief of her symptoms. Her current low back discomfort was in the same location, and occurred once a month, with episodes lasting a couple of days. There was no trauma to the low back since her separation from service. The examiner diagnosed spondylosis of the lumbar spine. A May 2014 VA treatment record reflects that the Veteran reported chronic left knee and back pain. The left knee pain had been present since age thirteen. She started having back pain during training in the military. She stated that she fell a year earlier, and hurt her low back, right knee, and hip. In her June 2014 NOD, the Veteran wrote that she fell in basic training from a 12-foot high pole while attempting to complete an obstacle course. She stated that she was sure she was knocked unconscious. The only thing she remembered was being put in an ambulance and having pain all over her body. She stated that "[f]or some reason, the medical staff focused on my elbow, which was fractured," and did not address the "rest [of her] body." She wrote that she is positive that the jarring caused by the fall affected her lumbar spine and cervical spine. She stated that when she hit the ground her right side was "the side of impact," and she was "having problems with [her] whole right side," including her right hip and shoulder. She stated that the Army was "all that [she] had," and "so [she] did not complain about [her] ailments." In a June 2014 letter, the Veteran's private treating chiropractor wrote that he had treated the Veteran on a "per needed basis" since 1997, when he had taken over the practice. He stated that she had several "chief complaints," including low back pain which radiated at times, mid-thoracic pain, and neck pain. The chiropractor further stated that the Veteran reported falling from a pole that was around 12 to 15 feet high in March 1979, and that this "is a possible cause of exacerbations of her neck, upper back and shoulder pain." He added that the Veteran's "lower back pain could have elements stemming from this fall as well." In a July 2016 letter, the Veteran's private chiropractor wrote, in part, that when the Veteran experiences an exacerbation of her right sacro-iliac joint, she favored the right leg, and thereby caused more of the weightbearing load to be on her left side. He observed that "[t]his, along with the altered gait [this] may cause, can exacerbate pain and dysfunction to her left knee." In an August 2016 letter, the Veteran wrote that in 1979 she fell from a pole during basic training, and was treated for a fractured elbow but not for "any of the other injuries I sustained." She stated that she has been having difficulties with her physical condition ever since. In this regard, it "started with [her] left knee, which altered [her] gait. This, then, caused constant lower back pain." She stated that the injury to her left knee caused her to compensate with her right leg and hip, resulting in severe low back and right hip pain. It also affected her ability to control her weight by not being able to walk any distance or put undue strain on her lower back, right hip, and knee. She stated that inability to exercise, rather than food consumption, contributed to her weight gain. In a December 2019 statement (VA Form 21-4138), the Veteran wrote that when she fell from the pole in March 1979, she landed on her right side, and had experienced right hip pain ever since that day. In a December 2019 medical opinion, a VA physician opined that it is less likely than not that the Veteran's spondylosis of the lumbar spine originated during, or is etiologically related to, her active service. The examiner explained that the service treatment records are silent for any report of an injury to the back, or back complaints. The separation examination showed a normal spine on clinical evaluation, and the Veteran denied recurrent back pain in the report of medical history at separation. The examiner also noted that after separation from service, the Veteran worked full time as a roofer, plumber, and in landscaping. The Veteran's spondylosis of the lumbar spine, diagnosed on x-ray, is an "aging phenomenon," according to the examiner. In this regard, the examiner explained that with age, the bones and ligaments in the spine wear, leading to bone spurs (osteoarthritis). The examiner observed that the Veteran was over fifty years old when she began to experience back pain associated with spondylosis. The examiner also noted that the Veteran's large body habitus played a "contributory role" in her back pain, as it put increased load on the back. Conversely, there was "limited objective medical evidence[]" showing a relationship to service. In a separate December 2019 opinion, the VA physician also concluded that the Veteran's low back disability was less likely than not caused or aggravated by her left knee disability. The examiner explained that the medical records showed no compensatory process "of the back pain in relation to the left knee." There was no reported radiation of the left knee pain upward to cause back symptoms. There was no concurrent back injury or trauma to suggest aggravation. The preponderance of the evidence shows that the Veteran did not injure her low back in service, and that her spondylosis did not manifest until years after service separation. Her statements that she injured her back when she fell from the pole are not credible, as they conflict directly with the service treatment records and other medical evidence, and also with each other. Specifically, the service treatment records show that she injured her left elbow, which indicates that she did not fall on her right side, as she asserted in later statements made in support of a claim for benefits. Moreover, the service treatment records do not mention an injury to the low back from this fall, or otherwise show back complaints. The Veteran states that she was reticent about disclosing her other physical complaints at the time, but the service treatment records do show treatment for a number of conditions, including left knee pain. They also show that not only was she not treated for back pain, but that she affirmatively denied a history of recurrent back pain at separation. The Veteran's statements also conflict with the private chiropractic treatment records, which show that she sought treatment for shoulder pain, foot pain, upper back pain, and neck pain from 1997 to 2009, but did not mention low back pain until June 2009, when she strained her back picking up a lawn mower, and then in May 2010, when she pulled up a rose bush that morning. Both those records indicate that the back pain had an acute onset brought on by physical strain. Further, the Veteran's statements regarding an in-service back injury also conflict with the history she provided at the December 2013 VA examination, in which she denied trauma to the back, and instead reported a gradual onset of low back pain beginning in 1981, after she gave birth, which fully resolved with chiropractic treatment by 1993. They also conflict with her August 2016 letter, in which she wrote that an injury to her left knee caused her to compensate with her right leg and hip, resulting in severe low back and right hip pain. This letter indicates that she did not injure her low back in the fall, and that she instead attributes her low back condition to an abnormal gait caused by her left knee disability. The Board also notes that the Veteran's statements regarding other injuries claimed to have been sustained in the fall conflict with the contemporaneous medical evidence. For example, the May 2013 VA treatment record states that the Veteran reported having numbness of her right hand and pain going all the way up her arm, which she stated were "from when she fell off a pole" that was 15 inches high "and injured her upper back when she fell on her right hand." However, the March 1979 service treatment records show that the Veteran injured her left arm in the fall, not her right. Because the Veteran's statements regarding an in-service back injury conflict with the service treatment records and with other statements she has made to medical providers and at the December 2013 VA examination, the Board finds they lack credibility. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that when determining whether lay evidence is satisfactory, the Board may properly consider, among other things, its consistency with other evidence submitted on behalf of the Veteran); See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). For that reason, the Board finds that this is not a case in which the Veteran's left elbow fracture sustained in the March 1979 fall simply overshadowed in its severity other medical conditions that may have been incurred in the fall, such as low back pain, and which therefore were not noted at the time, and which she did not mention out of concern that it would jeopardize her military career. Rather, the conflicting and contradictory nature of her statements on this issue, as illustrated above, support the conclusion that they are not credible. The Board further finds that the June 2014 letter by the Veteran's chiropractor is not probative on the issue of whether a nexus may exist between the in-service fall and her current low back disability. The chiropractor's statement that the Veteran's "lower back pain could have elements stemming from this fall" is vague and conjectural in nature, is not supported by any explanation, and does not account for the fact that the credible evidence shows that the Veteran did not experience low back pain until several years later. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996) (holding that a "generic statement about the possibility of a link" to service is "too general and inconclusive" to be probative (emphasis in original)); 38 C.F.R. § 3.102 (a reasonable doubt is one "within the range of probability as distinguished from pure speculation or remote possibility"); see also See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and that critical pieces of information from a claimant's medical history can lend credence to the opinion of a medical expert who considers them, and detract from the medical opinions of experts who do not). The December 2019 VA medical opinion is probative, as it represents the conclusion of a medical professional based on review of the Veteran's pertinent medical history, and is supported by an explanation that is sufficient for the Board to make an informed decision. It thus outweighs the June 2014 opinion by the private chiropractor. The VA physician found, as has the Board, that the record does not support a finding that the Veteran sustained an injury to her low back in the March 1979 fall. The physician noted that the Veteran's age and body habitus were contributing factors to her spondylosis and low back pain, and also observed in this regard that the Veteran had been employed in physically active jobs such as landscaping and roof repair, which suggests that the Veteran did not have back problems for a number of years. The physician's opinion indicates that the presence of spondylosis is not necessarily evidence of prior trauma, and was consistent with age-related changes and perhaps aggravated by the Veteran's larger body size. In the context of the overall discussion in the opinion, the examiner's statement that there is "limited objective medical evidence[]" showing a relationship to service meant that there is no such objective evidence. Neither the examiner nor the Board has identified any such evidence, excepting perhaps the June 2014 letter by the private chiropractor, which is not probative on the issue for the reasons discussed above. In short, the examiner found that the Veteran's spondylosis first manifested years after separation, and was consistent with age-related changes. The examiner also found that the Veteran's body habitus has contributed to her low back pain via the "increased load" on her back. Accordingly, the Board finds that a medical nexus has not been established between the Veteran's current low back disability and a disease or injury incurred or aggravated in active service, including the March 1979 fall. Rather, the preponderance of the evidence weighs against such a link. Accordingly, the criteria for service connection on a direct basis are not satisfied. See Holton, 557 F.3d at 1366. Because the Veteran's arthritis (i.e. spondylosis) of the lumbar spine was not noted in service or within a year of separation, let alone shown to be chronic at the time or to have manifested to a compensable degree within a year of separation, the criteria for service connection on a presumptive basis for arthritis as a chronic disease are not met. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309. The Board also finds that service connection for the Veteran's low back disability on a secondary basis is not established. Service connection may be granted 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). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id; Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has stated that an abnormal gait due to her service-connected left knee disability caused or aggravated her low back disability. See August 2016 Correspondence. However, as discussed above, the record shows that she has reported experiencing low back pain beginning in the early 1980's after giving birth, and also an acute onset of low back pain from lifting a lawnmower and pulling out a rose bush. These records pertaining to low back pain do not note an abnormal gait at the time. The July 2016 letter by the Veteran's chiropractor does not support a relationship between the Veteran's altered gait and her low back pain. It states that when she experienced an exacerbation of her right sacro-iliac joint, she favored the right leg, and thereby caused more of the weightbearing load to be on her left side. The chiropractor observed that "[t]his, along with the altered gait [this] may cause, can exacerbate pain and dysfunction to her left knee." In other words, the chiropractor found that she had an altered gait due to her sacro-iliac joint, and that this aggravated her left knee condition, rather than that the Veteran had an altered gait caused by her left knee disability causing or aggravating her low back disability. The December 2019 VA medical opinion concluded that the Veteran's low back disability was not caused or aggravated by her left knee disability, explaining that there was no "compensatory process" that would show a link between the Veteran's low back pain and her left knee disability, and no concurrent injury or trauma. The physician found that the Veteran's lumbar spine spondylosis is instead due to age-related changes, and that her larger body habitus has also played a role. The competent evidence of record does not otherwise support a link between the Veteran's low back disability and her left knee disability, including by way of an antalgic gait or abnormal weightbearing. The issue of whether the Veteran's low back disability has been caused or aggravated by abnormal weightbearing due to her left knee disability is a determination that is too complex to be made based on lay observation alone, as such a relationship cannot be perceived solely through the senses. Therefore, because the Veteran is a lay person in the field of medicine, she does not have the expertise to render a competent opinion on that issue. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Thus, her unsupported opinion is not probative on the issue. See Layno v. Brown, 6 Vet. App. 465, 470-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration). The Veteran's statements regarding an abnormal gait have also been contradictory. In this regard, in the August 2016 letter, she stated that the injury to her left knee caused her to compensate with her right leg and hip, resulting in severe low back and right hip pain. However, in the December 2019 statement, she wrote that when she fell from the pole in March 1979, she landed on her right side, and had experienced right hip pain ever since that day. In other words, she has both stated that she experienced right hip pain ever since the March 1979 fall, and that her right hip pain resulted from an abnormal gait. The conflicting nature of these statements prevents the Board from being able to rely on them as credible evidence that an abnormal gait may have caused or aggravated her low back disability. Regarding the Veteran's larger body size contributing to her low back pain, as found in the December 2019 VA medical opinion, she has stated that lack of an ability to exercise caused by her service-connected left knee disability resulted in her weight gain, rather than food consumption. See August 2016 Correspondence. In a precedential opinion, VA's General Counsel held that while obesity is not a disability in its own right, it can constitute an "intermediate step" for service connection on a secondary basis under 38 C.F.R. § 3.310 (a). VAOPGCPREC 1-2017 (January 6, 2017). The opinion provides guidance on making that determination, using the example of a claim for hypertension. Specifically it states that in a claim for hypertension as secondary to obesity, which in turn was claimed as secondary to a service-connected back disability, "adjudicators would have to resolve the following issues: (1) whether the service-connected back disability caused the veteran to become obese; (2) if so, whether the obesity as a result of the service-connected back disability was a substantial factor in causing hypertension; and (3) whether the hypertension would not have occurred but for obesity caused by the service-connected back disability." Id. The General Counsel opinion concludes that if these questions are answered in the affirmative, the hypertension may be service connected on a secondary basis. Id. The General Counsel opinion focuses on the issue of causation, but aggravation of obesity by a service-connected disability may also constitute an intermediate step for purposes of establishing service connection on a secondary basis. In this regard, "G.C. Opinion 1-2017 does not purport to prohibit inquiry into whether a service-connected disability aggravated a veteran's obesity." Walsh v. Wilkie, 32 Vet. App. 300, 307 (2020). Therefore, "the Board, in accordance with § 3.310(b), must consider aggravation in this context when the theory is explicitly raised by the veteran or reasonably raised by the record." Id. The record does not support a finding that the Veteran's left knee disability has been a substantial factor in causing or aggravating obesity. In this regard, private treatment records dated in October 2000 show that she was prescribed medication for weight control after she had been given two diets for weight loss. An August 2014 VA treatment record notes that she was to be advised to attempt weight loss by decreasing food portions. A May 2010 VA treatment record states that the Veteran was active, and did exercise every day. These records tend to show that the Veteran's increased weight has not been due to lack of exercise, but rather is linked to her diet. In sum, the competent and probative evidence shows that the Veteran's low back disability has not been caused or aggravated by her service-connected left knee disability, either by way of an abnormal gait, or by obesity stemming from physical limitations due to her left knee disability. Accordingly, the criteria for service connection on a secondary basis have not been met. See 38 C.F.R. § 3.310. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.