Citation Nr: 22013442 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-07 079 DATE: March 9, 2022 ORDER Entitlement to service connection for a lower back disability, diagnosed as degenerative arthritis and disc disease of the lumbar spine, is granted. FINDING OF FACT The Veteran's lower back disability, to include degenerative arthritis and disc disease of the lumbar spine, began during his active-duty service. CONCLUSION OF LAW The criteria for service connection for a lower back disability, diagnosed as degenerative arthritis and disc disease of the lumbar spine, have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 to January 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran later testified at a Board videoconference hearing in September 2019. A transcript of the hearing is of record. This matter, inter alia, was remanded by the Board in December 2019 and September 2021. The requested development has been completed and the issue is again before the Board for further appellate review. 1. Entitlement to service connection for a lower back disability, to include as secondary to service-connected bilateral knee disabilities. In this post-remand case, the Veteran seeks service connection for a lower back disability to include as secondary to his service-connected bilateral knee disabilities. As shown more fully below, the Board finds entitlement to service connection on a direct basis to be warranted. By way of history, this issue was remanded by the Board in December 2019 in order to obtain an opinion as to whether the Veteran's service-connected knee disabilities aggravated his low back disability or direct service connection. An opinion was obtained in July 2020; however, in September 2021, the Board found the opinion to be inadequate. Specifically, the Board found that the July 2020 did not apply the reasonable doubt standard or offer a clear opinion as to aggravation, and that it discussed the theory of aggravation of a pre-existing disability, which is an inaccurate theory in this case. Furthermore, in August 2020, another VA clinician declined to offer an opinion "based on the medical evidence submitted and reviewed without current examination." Then, in September 2020, the July 2020 examiner offered another opinion, but again the opinion also does not address the theory of aggravation. As such, the Board remanded the matter again in order to provide the Veteran with an additional VA examination and obtain etiological opinions. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). 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) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). Further, if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.309. Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Chronicity is established if the claimant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. The claimant may establish service connection by continuity of symptomatology. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) there is post service evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post service symptomatology. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the present of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although lay persons are considered competent to provide opinions on some medical issues, some medical issues fall outside of the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Analysis To begin, the Veteran was afforded VA examinations in December 2016, July 2020, and November 2021. The December 2016 examiner diagnosed the Veteran with lumbago, presumed degenerative joint disease of the lumbar spine with L5-S1 degenerative disc disease with arthritis. The July 2020 VA examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine, intervertebral disc syndrome, degenerative disc disease, and lumbosacral strain. Furthermore, the November 2021 VA examiner diagnosed the Veteran with degenerative arthritis of the spine, degenerative disc disease other than intervertebral disc syndrome, and lumbar degenerative disc disease of L5-S1. Therefore, the Board finds evidence of a current diagnosis for purposes of direct and secondary service connection. As it pertains to the second element, an in-service event or injury, in September 2019, the Veteran testified at a Board hearing with a Veterans Law Judge who is no longer employed by the Board. During his hearing, he contends that his low back disability began during service while he served as a light infantryman, and that he never reported to sick call out of fear of being dismissed. As part of his military occupational specialty (MOS), he reportedly did 12-mile road marches every Friday with a 100-pound rucksack. He stated that he did a 25-miler once every six months and a 50-miler once a year. In addition, he provided that he saw a chiropractor for treatment before he began to see the VA. Furthermore, the Veteran is currently service connected for bilateral knee disabilities. As such, given his credible testimony and his currently service-connected bilateral knee disabilities, the Board finds the second element necessary for direct and secondary service connection to be met. With regard to the final element, a medical nexus, the Board finds the Veteran's low back disability to include degenerative arthritis and disc disease of the lumbar spine, was at least as likely as not incurred in or caused by his active-duty service. Specifically, the Board finds that given the chronic nature of these disabilities, service connection is warranted on a direct basis given the Veteran's credible statements regarding continuity of symptomatology. Given the inadequate opinions of the previous VA examiners, per the September 2021 Board remand directives, an opinion regarding direct and secondary service connection was obtained in November 2021. Here, the VA examiner stated that the Veteran's low back disability is less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected disabilities. First, with regard to direct service connection, the examiner noted that the Veteran's service treatment records (STRs) were reviewed and are silent for evaluations or treatment for a low back disability. Specifically, the examiner provided the rationale that there is no evidence of a diagnosis that occurred within 12 months of separating from service and the first noted evidence of a low back disability began in February 2009. As a result, the examiner concluded that there is no direct relationship between his current disability and his active-duty service. Second, with regard to secondary service connection, the examiner provided the rationale that it is often claimed that lumbosacral spine disabilities develop because of lower extremity injuries causing a limp. In the absence of a limp, standing or walking in the erect position is unlikely to create abnormal stress levels and vertebral segments. Per the Veteran's claims of limping, the examiner provided that the argument is limping causes the body to shift the center of its gravity and that the increased muscle pull increases the forces transmitted across the lumbar discs and facet joints due to mechanical leverage. This, in turn, the examiner provides might cause or aggravated degenerative changes of the disc and facet joints. However, the examiner explained that clinical data related to the incidence of back pain in the general population for individuals walking with a limp are limited and inconclusive. Medical literature references concede the possibility that a limp caused by a compensable injury may result in back pain but the limp would need to be severe, such as a Trendelenburg gait pattern. However, the examiner noted that the Veteran's gait was examined and that it favored his right lower extremity but there is no evidence of exaggerated, lurching, or Trendelenburg type gait. As such, the examiner concluded that there is no causal relationship between the Veteran's claimed low back disability and his service-connected bilateral knee disabilities. The Board finds this opinion to be of low probative value. The Veteran credibly testified during his hearing that his low back disability began during service and has continued since separating. He further testified that he received treatment in the late 1990s and early 200s, although documentation of his treatment was destroyed given that he was not a continuous patient. In addition, during his VA examinations, he provided history that his low back disability began during service, his symptoms have worsened over the years, and that it was caused in part by his long rucks during service. In summary, the record contains the Veteran's credible lay statements and testimony regarding the continuity of symptomatology as to the chronic disorders of degenerative arthritis and disc disease of the lumbar spine, and that the negative nexus opinions are of little probative value. Accordingly, the Board finds the evidence is at least in approximate equipoise as to the existence of a nexus between the Veteran's degenerative arthritis and disc disease of the lumbar spine, and his active-duty service. Therefore, the Board resolves all doubt in the Veteran's favor and finds that service connection is warranted for this disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. DeBoer, 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.