Citation Nr: 21041051 Decision Date: 07/08/21 Archive Date: 07/07/21 DOCKET NO. 05-28 345 DATE: July 8, 2021 ORDER Entitlement to service connection for lumbar spine stenosis with radiculopathy (low back disability), as secondary to left ankle disability, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT With favorable resolution of doubt, the evidence establishes that the Veteran's service-connected left ankle disability caused and resulted in lumbar spine stenosis with radiculopathy. CONCLUSION OF LAW The criteria for service connection for lumbar spine stenosis with radiculopathy (low back disability), as secondary to left ankle disability, have been met. 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1978 to July 1980. This matter comes before the Board of Veterans' Appeals (Board) from a May 2003 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). An August 2017 Board decision denied the Veteran's claims. The extensive procedural history of this case was set forth therein and will not be repeated. The Veteran appealed the August 2017 Board decision to the United States Court of Appeals for Veterans Claims (Court), which resulted in an April 2018 Order granting the parties' March 2018 Joint Motion for Remand (JMR) vacating that Board decision. In that JMR, the parties agreed that a remand was warranted because the Board failed to ensure VA complied with its duty to assist by providing an adequate medical opinion addressing whether the Veteran's low back disability was aggravated by his service-connected left ankle disability, and failed to provide an adequate statement of reasons or bases for its decision to deny TDIU. In March 2019, the Board remanded these matters for action consistent with the JMR. 1. Entitlement to service connection for lumbar spine stenosis with radiculopathy (low back disability), to include as secondary to left ankle disability Service Connection Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if shown as chronic in service; or, if manifested to a compensable degree within a presumptive period following separation from service; or, if 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). Service connection will be granted on a secondary basis for disability that is proximately due to or the result of, or permanently aggravated by, an already service-connected condition. 38 C.F.R. § 3.310(a) and (b). This requires (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence establishing a nexus between the service-connected disability and the claimed disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Reasonable doubt will be favorably resolved if there is an approximate balance of favorable and unfavorable evidence but if the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365-66 (Fed. Cir. 2001) (holding that an approximate balance of evidence is more favorable than the evidence being in equipoise, i.e., equally balanced). The Veteran is service connected for posttraumatic arthritis of the left ankle, as residuals of a fracture, rated 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5262 for impairment of the tibia or fibula with marked ankle disability. It is contended that after having fully recovered from a pre-service left ankle fracture the Veteran developed his current low back disability during service following his in-service refracture of his left ankle. Alternatively, it is contended that his current low back disability first manifested after service but was either caused or aggravated by his service-connected low back disorder. For the following reasons and bases the Board finds that service connection is warranted for low back disability because although the claimed low back disability first manifested after service, it is proximately due to the service-connected left ankle disability. 38 C.F.R. §§ 3.102, 3.310. It is undisputed that the Veteran now has a current low back disability and that contemporaneous service treatment records (STRs) do not document a low back disability, including there being no findings or complaints thereof at service discharge. To the extent that the Veteran reported at discharge that he was not in good health, this is clearly a refence to his in-service left ankle fracture, for which he received an early discharge. In this case, there are multiple medical opinions addressing the etiology of the Veteran's current low back disability. By way of background, the Veteran's clinical history was best summarized in a November 2018 medical opinion, received in January 2019, from Dr. T., a Board Certified Orthopedic Surgeon, who reviewed over 3,000 pages of medical records and conducted a telephonic interview of the Veteran. Dr. T. stated that pre-service X-rays revealed a mildly displaced spiral fracture of the left distal fibula, but the Veteran was asymptomatic at service entrance and during service he re-fractured the left ankle. Dr. T. noted that a January 1983 letter from a chiropractor, H. D. [who later evidence showed had not actually treated the Veteran] stated that: It is my opinion that your low back pain can be directly associated with an ankle or leg problem. Anytime when your gait is altered, the change is reflected into the low back and spine. We see this in people who have casts or braces on their legs or ankles. Your records indicate that you have had problems with your low back and in your case, I feel that they are associated with your ankle problem. Dr. T. stated that the Veteran had three surgical procedures on his left ankle, beginning with decompression of the anterior aspect of the left ankle in 1995. He presented to VA in October 1998 complaining of severe low back pain on the left side and reported having had similar problems in the past. The Veteran related that his back problems began during service after he refractured his left ankle and that in the past, physicians had told him that his low back disability would most likely have started during or been aggravated by military service. Dr. T. noted that medical records demonstrated that the Veteran's left ankle and his low back disability progressively worsened after service. He had an L5-S1 foraminotomy, bilaterally, in November 2003. Also, it was noted that at a VA examination in October 2010, the Veteran had previously stated, and again stated at the examination, that he had the onset of low back pain while on active duty. The diagnosis was degenerative disc disease (DDD) with degenerative arthritis of the lumbosacral spine, but the VA examiner opined that the current lumbosacral spine condition was less likely than not aggravated by the service-connected left ankle condition. On the other hand, a March 2017 VA Physical Medicine and Rehabilitation Consultation note stated that "he has had back pain in his back for many years secondary to osteoarthritis in his left leg. He has had a leg length discrepancy." Dr. T. concluded that the diagnosis was lumber DDD with left lower extremity radiculopathy and that: It is at least as likely as not that this condition arose as a result of his service-related left ankle condition. There is a well-documented history noted in the records of leg length discrepancy, altered gait, as well as difficulty with ambulation secondary to ankle pain leading to back pain and eventual development of an arthritic condition. As discussed in the attached article (George C. Trachtenberg, 2012), "If these factors are combined with a leg length discrepancy that is in play during movement, this will often shift the destabilized disc more unilaterally. Certainly, a unilateral sagittal plane dysfunction can also cause a back problem to be more one-sided. These situations all cause axial rotational torquing forces that ultimately create significant localized muscular overuse and ultimately disc damage." The Board notes that prior VA medical opinions were to the effect that there was either no causation or no aggravation as to the claimed low back disorder and the left ankle disability. For example, following a VA examination in June 2003, when it was noted that the first documented complaint of back pain had been 1995, it was opined that it was less likely as not that the lumbar spine degenerative changes were a "complication" of his [service-connected] left ankle disorder and the low back problems were at least as likely as not a complication of his history of obesity. At VA examinations in April 2009 and October 2010 it was reported that the Veteran had injured his low back by completing 38 parachute jumps during service, and each examination yielded an opinion that the current low back disability was related or due to this. However, in a February 211 letter the Veteran reported that he had never claimed to have had any parachute jumps during service. Then, with this correction noted, a May 2011 VA examiner opined that the low back disability was not due to military service and not caused by the left ankle disability. Similarly, a February 2012 VA examiner opined, in an August 2012 addendum, that the claimed back disability was less likely than not incurred during service or caused by the service-connected left ankle injury. Significantly, the examiner reported that she could find no medically evidenced based studies that showed that DJD of weight-bearing joints, including ankles, adversely affected the lumbar spine. A March 2017 VA examiner stated that she was unable to locate any studies that supported the concept that an ankle disability would cause or aggravate DDD in the lumbar spine. The examiner opined that the Veteran's lumbar spine DDD was more likely than not caused by age, being overweight, and poor posturing - all of which predisposed him to developing lumbar spine DDD, and that it was less likely than not that the DDD lumbar spine was aggravated by his service-connected left ankle disability. Another VA medical opinion was obtained in April 2019 that the service-connected left ankle disability did not aggravate the low back disability because the Veteran's back condition was aggravated by degenerative disc changes. Following the most recent Board remand in November 2019, the Veteran underwent a VA examination in April 2021, at which time his records were reviewed. The Veteran's attorney has stated that this most recent examination supports the theory of in-service incurrence because the November 2019 examiner rendered a diagnosis of spinal stenosis with a reported date of diagnosis being in 1979. However, this diagnosis was clearly predicated solely upon the Veteran's then report of having developed back problems during service. The examiner reported that imaging studies were consistent with no progression and opined that there was no aggravation of lumbar spinal stenosis by another condition, e.g., post traumatic arthritis of the left ankle, as residuals of fracture. In weighing the varying medical opinions, the Board notes that two of the negative medical opinions reported that, in essence, no medical studies could be found supporting the claim for secondary service connection. In contrast, the opinion of Dr. T. supported the favorable conclusion of the private chiropractor. While neither this chiropractor nor Dr. T. are shown to have either treated or physically examined the Veteran, Dr. T. did cite to supporting medical literature which reflects that leg length discrepancy plays a role in secondary causation. No unfavorable medical opinion of record addressed the matter of whether leg length discrepancy plays such a role. With this in mind, and with the favorable resolution of doubt, the Board finds that the Veteran's current low back disability is proximately due to his service-connected posttraumatic arthritis of the left ankle, status post fracture. Accordingly, service connection for lumbar spine stenosis with radiculopathy, as secondary to service-connected left ankle disability, is warranted. REASONS FOR REMAND 2. Entitlement to a TDIU rating The grant of service connection for lumbar spine stenosis with radiculopathy (low back disability) may have an impact upon the Veteran's claim for entitlement to a TDIU rating. Thus, appellate consideration of entitlement to a TDIU rating must be deferred until an appropriate is assigned for the low back disability, including any radiculopathy, and the RO has the opportunity to readjudicate entitlement to a TDIU rating de novo. The matters are REMANDED for the following action: 1. Effectuate the grant of service connection for the Veteran's low back disability, including any radiculopathy, and assign appropriate effective dates and disability ratings. 2. Thereafter, readjudicate the claim of entitlement to a TDIU rating. If the claim for a TDIU rating remains denied, issue a supplemental statement of the case. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Fussell, 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.