Citation Nr: 21046103 Decision Date: 07/28/21 Archive Date: 07/28/21 DOCKET NO. 16-30 457 DATE: July 28, 2021 ORDER Service connection for a lower back disability is granted. FINDING OF FACT A lower back disability was caused or aggravated by service-connected right knee disabilities, to include due to an altered gait. CONCLUSION OF LAW The criteria for service connection for a lower back disability, variously diagnosed, are met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) in the United States Army from April 2008 to August 2008, and active duty with the United States Army from July 2009 to July 2010, including foreign service in Africa. For his meritorious service, the Veteran was awarded (among other decorations) the Army Achievement Medal, Overseas Service Ribbon, and Armed Forces Reserve Medal with M Device. The Veteran testified during an April 2019 videoconference hearing. A transcript of this proceeding has been associated with the record. This appeal was most recently remanded by the Board in March 2021. At that time, the Regional Office (RO) was instructed to provide a memorandum regarding the exact nature and dates of the Veteran's military service, and to obtain a VA examination/nexus opinion. For unknown reasons, this appeal was recertified to the Board before the requested development was completed; specifically, the requested memorandum was not provided, and the June 2021 VA examination is not fully responsive to the Board's remand inquiries, including as to the existence of a congenital lower back defect. However, the Board finds that a grant of the pending appeal is possible upon the evidence now of record, such that additional remand to ensure substantial compliance with the March 2021 directives would serve only to further delay the adjudication of this appeal. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection The Veteran remains in pursuit of service connection for a lower back disorder. Although he has raised multiple theories of entitlement, the Board will limit its discussion to that theory upon which the appeal is now granted. Specifically, service connection may be warranted 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 prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Here, the Veteran has been diagnosed with multiple lower back disorders during the period on appeal, including lumbar muscle spasm, lumbar disc protrusion L4-L5, mild dextroscoliosis/transitional vertebra L5, degenerative arthritis of the spine with accompanying right lower extremity radiculopathy, transitional anatomy with pseudoarthrosis the right traverse process of L5 with sacrum, mild dextroconvex curvature, and mechanical back pain productive of functional impairment. See, e.g., VA examinations dated November 2012, January 2015, November 2019, December 2020; private treatment letter dated March 2021; Saunders v. Wilkie, 886 F.3d 1356, 1363 (Fed. Cir. 2018). Upon the Veteran's diagnosis of degenerative arthritis, the Board has considered whether this appeal may be granted on a presumptive basis. However, the evidence does not establish that this disorder onset within one year of military separation and has continued since that time. 38 C.F.R. §§ 3.307, 3.309; see also November 2019 VA examination (identifying the onset of degenerative arthritis as October 2014). Thus, the appeal does not succeed on a presumptive basis. Additionally, the Veteran's mild dextroscoliosis/transitional vertebra L5 have been classified as congenital conditions by multiple VA examiners. See January 2015 VA examination; December 2020 VA opinion. VA regulations prohibit an award of service connection for congenital or developmental defects, absent evidence of an additional disability due to in-service aggravation of the congenital defect by superimposed disease or injury. 38 C.F.R. §§ 3.303(c), 4.9; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995). As there is no such evidence in the record, service connection for the Veteran's mild dextroscoliosis/transitional vertebra L5 is precluded in this case. Id. Nonetheless, the Veteran clearly demonstrates current and additional lower back disabilities which are subject to an award of service connection. Thus, the first element of secondary service connectiona current disability, classified herein as a lower back disability, variously diagnosedhas been met. As to the second element, the Veteran associates his lower back disability with a right knee disorder, to include the altered gait caused thereby. He is currently service-connected for right knee limitation of extension and limitation of flexion, such that the second element of secondary service connection is also met. Thus, this appeal may be granted upon the finding of a nexus between the Veteran's lower back and right knee conditions. There is conflicting evidence on this point. As an initial matter, the Board acknowledges that January 2015, December 2020, and January 2021 VA examiners offered negative nexus opinions for this case. However, those examiners assessed only the Veteran's congenital diagnoses (for which service connection is regulatorily prohibited). Additionally, the January 2021 examiner engages an incorrect legal standard for "aggravation," as a permanent worsening of disability is not required. Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Thus, these findings do not merit further discussion herein. However, there remains multiple other opinions for consideration. First, a November 2012 VA examiner opined that the Veteran's back disability was less likely than not proximately due to or the result of his service-connected right knee disabilities. In doing so, the examiner noted that the Veteran was released from active duty in July 2010, and accompanying service treatment records (STRs) were silent for lower back pain. Moreover, there was no evidence of right knee instability during examination. Right knee and lumbar conditions are from different anatomical areas which are unrelated. Also noted was the Veteran's current position working at a Subway, which required him to stand for approximately five to six continuous hours. Thus, a secondary nexus was not found. Next, a November 2019 VA examiner offered a negative direct nexus opinion. However, the accompanying rationale also notes that while the Veteran's medical records show lower back complaints subsequent to his right knee disability, the two conditions are not medically related. Rather, the claimed back condition is a separate entity from the service-connected right knee disability and the two are unrelated. Additionally, medical literature does not support a medical relationship between the lower back and right knee disorders. Most recently, a June 2021 VA examiner offered a negative direct nexus opinion. However, this examiner also offered an accompanying rationale which addressed the purported secondary nexus in this case, by noting that there is no medical literature which supports that a right knee condition can cause symptoms, complications, or conditions of a lower back disorder. Thus, the examiner concluded that the claimed back condition was less likely than not proximately due to, the result of, or aggravated beyond its natural progression by the Veteran's service-connected right knee conditions. In contrast, a March 2021 private treatment letter concludes that it is more likely than not that the Veteran's lower back conditions are secondarily linked to his service-connected right knee disabilities. In doing so, the examiner acknowledged the full scope of lower back and right knee diagnoses; contemplated all relevant notations in the Veteran's STRs and treatment records; and documented the Veteran's lay testimony relevant to his symptoms, their onsets, and their perceptible relationships. The examiner then indicated that [i]t is well known throughout the orthopedic community, change to an individual's natural gait will precipitate pain and dysfunction in the lower extremities which could range from the feet to the lower back. An alteration to one's natural ambulation has also been known to cause abnormal movement of the hip joints, leading to inflammation of the . . . low back paraspinal muscles. See March 2021 private treatment letter, pg. 2. As it relates to this Veteran, he suffers from chronic lower extremity pain and an altered gait, which directly increases the pressure and force applied to (in pertinent part) his lumbar spine. Review of medical literature also shows how back pain can be precipitated by gait adaptations as a result of lower extremity conditions, including of the knees. In discussing multiple academic sources, the provider reiterated how their findings support the conclusion that an altered gait can disrupt the kinetic chain. Thus, upon review of multiple resources and the Veteran's own medical history, a secondary nexus was found. In considering the above, the March 2021 private opinion is found to be the most probative evidence regarding a nexus in this case. Granted, each of the above examiners offered definitive nexus opinions with supporting rationales, as based upon review of the Veteran's own medical history. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the "factually accurate, fully articulated, sound reasoning for the conclusion"). Each examiner also possesses the training and expertise to offer competent opinions as to complex medical matters, and there is no evidence that any of the examiners were not fully aware of the Veteran's medical history or misstated any relevant fact in providing their opinions. However, the November 2012, November 2019, and June 2021 VA examinations all contain one critical deficiency which categorically undermines their probative values: none assess the theory that the Veteran's right knee disabilities cause an altered gait, which in turn contributes to his lower back conditions. Also of note, the latter two examiners wrongly conclude that there is no medical evidence to support a nexus in this case, when such a finding is clearly contradicted by the March 2021 private opinion and its discussion of such positive evidence. Moreover, the March 2021 private opinion is also noticeably more detailed in its supporting rationale, with direct contemplation as to the Veteran's service and medical records, lay testimony, and relevant medical literature. In doing so, the examiner explicitly accounts for the symptoms and mechanics of each condition and their identifiable intersections. [CONTINUED ON NEXT PAGE] In affording highest probative weight to the March 2021 private opinion, a secondary nexus is established between the Veteran's non- and service-connected disabilities. It is apparent that although the lower back and right knee conditions are not intrinsically linked, the right knee can cause an altered gait which directly contributes to a lower back disorder. Thus, the preponderance of the evidence weighs in favor of the appeal, and secondary service connection for a lower back disability, variously diagnosed, is hereby granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kovarovic, 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.