Citation Nr: 22010571 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 16-10 002 DATE: February 24, 2022 ORDER Service connection for a back disability of lumbar strain and arthritis is granted. FINDINGS OF FACT 1. The current diagnoses are lumbar strain and lumbar spine arthritis (back disability). 2. The Veteran is service connected for bilateral pes planus (foot disability) and bilateral patellofemoral syndrome (knee disability). 3. The back disability is causally related to the service-connected foot disability and knee disability. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for a back disorder as secondary to the service-connected foot disability and knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the appellant, had active service from October 1996 to August 2000, from April 2006 to August 2006, and from October 2006 to October 2008. The instant case is on appeal from a July 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, denied service connection for a back disorder. The instant case has been before the Board of Veterans' Appeals (Board) previously and has been appealed to the United States Court of Appeals for Veterans Claims. Most recently, in November 2021, the Board remanded the case to obtain a new VA addendum opinion. As the opinion has been obtained, there has been substantial compliance with the remand directive and adjudication can proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a February 2017 Board hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. Service Connection for a Back Disorder is Granted. Direct Service Connection Service connection can be granted for a disability resulting from a 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). Service connection generally requires competent (1) evidence of a current disability; 2) evidence of an 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 current disability. Secondary Service Connection Service connection may be granted for a condition that is caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) nexus evidence establishing a connection between the current disability and the service-connected disability, which relates to either causation or aggravation. See id.; Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Chronic Disease Presumptive Service Connection The evidence shows lumbar spine arthritis, which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for "chronic" in-service symptoms and "continuous" post service symptoms apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as organic diseases of the nervous system and cardiovascular-renal disease, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran seeks service connection for a back disorder, contending that the current back disorder is proximately due to or aggravated by the service-connected foot disability and knee disability, raising a secondary service connection claim under 38 C.F.R. § 3.310. The evidence shows current diagnoses of lumbar strain and lumbar spine arthritis. See April 2013 VA Examination (diagnosing lumbar strain), October 2014 VA Treatment Record (diagnosing mild arthritis of the lower back based on x-ray evidence). The current disability requirement has been met. The record reflects that the Veteran is service connected for a foot disability and a knee disability. Accordingly, the question is whether the foot disability and the knee disability caused or aggravated the back disorder. After a review of all the lay and medical evidence, the evidence is at least in relative equipoise on the question of whether there is such a secondary causal relationship. The record reflects a private opinion from Dr. Crawford that states that he evaluated the Veteran's lower back and opines that the pain in the feet and the knees is starting to affect the lower back because of an alteration in posture, gait, and standing, which causes extra strain on the lower back. Dr. Crawford observed that the Veteran could only stand for 30 to 40 minutes of the evaluation because of pain in the lower back and opined that the lower back pain is most likely a direct effect from the problem in the feet and knees. The record also includes a private opinion from Dr. Langley that opines that the lower back pain is as likely as not directly related to the instability of the extremities (left and right knee). Resolving reasonable doubt in favor of the Veteran, the evidence demonstrates that there is a causal relationship between the back disorder and the foot disability and knee disability; therefore, the Board will grant service connection on a secondary basis. 38 C.F.R. § 3.310. The record reflects two negative secondary service connection nexus opinions, but the Board finds that both opinions fail to provide an adequate explanation with respect to the impact of the posture, gait, and standing on the back disorder. (Continued on the next page) The record also reflects a negative direct service connection nexus opinion, but this opinion is rendered moot by the grant of service connection on a secondary basis. Given that the Board is granting on a secondary service connection theory for a back disorder, all other service connection theories, including direct service connection (38 U.S.C. § 3.303(a)) and chronic disease presumptive service connection (38 U.S.C. § 3.303(b)) are rendered moot. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.