Citation Nr: 23018407 Decision Date: 03/24/23 Archive Date: 03/24/23 DOCKET NO. 17-08 376 DATE: March 24, 2023 ORDER Entitlement to service connection for lumbar spine disability is denied. Entitlement to service connection for right foot disability is denied. FINDINGS OF FACT 1. The Veteran's current lumbar spine disability did not originate in service, within a year of service, and is not otherwise etiologically related to his active service. 2. The Veteran's current right foot disability did not originate in service, within a year of service, and is not otherwise etiologically related to his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 2. The criteria for service connection for right foot disability have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1985 to January 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by a Department of Veterans Affairs Regional Office (RO). In August 2019, the Veteran testified at a Board hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In a March 2020 Decision, the Board denied the Veteran's claim for lumbar spine and right foot disability. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In a May 2021 Order, the Court vacated the Board's Decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found that the Board erred by relying on inadequate VA examination reports. Thereafter, the Board remanded these claims in September 2021 to obtain adequate VA examination reports. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be presumed for certain chronic diseases which develop to a compensable degree within one year after discharge from service, even though there is no evidence of the disease during the period of service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1137; 38 C.F.R. §§ 3.307, 3.309(a). 1. Lumbar Spine Disability The Veteran seeks entitlement to service connection for a lumbar spine disability. Specifically, he asserts that his current lumbar spine disability is etiologically related to in-service treatment he received for lower back pain. See November 2014 Claim. The evidence of record includes the Veteran's service treatment records (STRs). Those records show that in November 1986, the Veteran complained of lower back pain due to a lifting injury while working on a tank. He was assessed with a strain. He complained of lower back pain again in April 1987, which occurred as a result of pulling a wheel off a vehicle. The record noted that he had been seen in the field and was assessed with a strain. A July 1987 examination shows the Veteran reported having recurrent back pain and the clinician noted intermittent lower back pain over the past year. A November 1987 separation examination also shows the Veteran reported having recurrent back pain. The clinician noted "none" for any current summary of defects. Following service, VA medical records show the Veteran was referred for evaluation of radiculopathy in July 1999. He reported having developed lower back pain and numbness that radiated into his right leg, with symptoms present for approximately three months. He was diagnosed with acute right lumbar radiculopathy. A May 2006 VA medical record noted a past medical history of chronic back pain. See VA Treatment Records Received May 2015. An October 2014 chiropractor record shows the Veteran reported chronic daily low back pain with intermittent tingling into his legs. He also reported episodic midback and right scapular pain and spasms. Back symptoms had reportedly been present for approximately ten years. He denied any recent injury or trauma. See Private Treatment Records Received February 2016. A VA lumbar spine examination was obtained in May 2015. The examiner noted a diagnosis for lumbosacral strain. The Veteran reported that during service, he was treated for acute low back strains while working on tank in April 1986, and while working on an APC in April 1987. He reported no follow-up treatment and stated that he was initially seen "like around 1999." The examiner opined that it was "less likely than not (less than 50% probability)" that the Veteran had a lumbar spine disability that was etiologically related to service. In support of this opinion, the examiner noted that neither of the in-service low back strains had required follow-up appointments. The examiner also noted that the separation examination noted intermittent lower back pain the past year, and that there was a lack of records showing chronicity of care after service until 1999. The examiner further noted that since 1999, there was no evidence of any treatment for a low back condition, and, therefore, it was not possible to associate the in-service acute low back strains with the present back condition. In December 2015, the Veteran complained of constant sharp back pain. An examination revealed a torso that was hunched forward, bilateral paraspinal lumbar muscle spasms with diffuse tenderness, loss of lumbar spine lordosis, and restricted range of motion (ROM). He was diagnosed with low back pain and treated with injections. See Private Treatment Records Received February 2016. In a February 2016 VA Form 21-4138, Statement in Support of Claim, the Veteran asserted that while pulling an engine on a tank, he slipped and fell injuring his back. In addition, he reported that the injury occurred while he was in the field and that he did not believe it was documented. He further asserted that he injured his back again while removing torsion bars and road wheels. A June 2018 MRI study revealed congenital narrowing of the spinal canal due to foreshortened pedicles, spinal stenosis at L4-L5, foraminal narrowing at multiple levels, most significant at L4-L5 and L5-S1 which correlated with neurological findings, and posterior disc extrusion at L1-L2. See Private Treatment Records Received June 2018. In a May 2019 letter, a nurse practitioner noted the Veteran was a patient for management of his chronic severe lower back pain and radicular symptoms affecting his bilateral lower extremity. At an August 2019 Board hearing, the Veteran testified that he injured his back during service when he slipped a fell while pulling an engine out of a tank causing him to hit his back on a piece of metal. He also testified that he was involved in an accident and that following an X-ray study he was told he had an old fracture in the area where he had hit his back during service. In addition, he further reported having back pain since his in-service injury and that he initially sought treatment at his VA medical center approximately one year after his separation from service. In a September 2019 letter, a nurse practitioner noted the Veteran had been a patient for over a year for chronic lower back pain and lumbar radiculopathy, and that conditions began after a fall in 1987. A history of thoracic compression fractures was also noted to have been caused by a motor vehicle accident in 2017. Additionally, in another September 2019 letter, a chiropractor noted that he had treated the Veteran for many years for ongoing chronic back pain that first began in 1987 after a fall while riding on a tank. Lumbar spine symptoms were noted to have progressively worsened over the years. Lastly, another VA examination report was obtained in June 2022 which noted diagnoses for spinal stenosis, bulging discs between L1-L2, and bilateral lower extremity radiculopathy. The Veteran reported that his lumbar spine condition developed during service while working on a tank and that he was initially seen following service in 1999. The examiner opined that it was "less likely than not (less than 50% probability)" that the Veteran's current lumbar spine disability was etiologically related to service. In support of this opinion, the examiner determined that despite STRs documenting two lumbar strain episodes, there was no evidence to indicate that a chronic condition had developed at that time. In this regard, the examiner noted treatment for a lumbar strain in November 1986 and April 1987. The examiner further noted that the Veteran reported intermittent lower back pain during a July 1987 chapter physical examination, but additionally noted that the clinician found no current lumbar spine abnormalities or recommended any treatment. The examiner additionally relied on the fact that the record was silent for any complaints, treatment or evidence of continuity of symptoms related to a lumbar spine disability from 1987 to 1999. Based on the above, the examiner concluded that there was a lack of a nexus between the in-service symptoms and the currently diagnosed lumbar spine disabilities. After a review of the evidence of record, the Board finds that entitlement to service connection for a lumbar spine disability is not warranted. In this regard, the Board finds the June 2022 VA examination report the most probative evidence of record. The examiner considered the evidence of record, including the STRs, lay statements and post-service treatment. Based on the evidence of record, the examiner concluded that a nexus had not been established between the current lumbar spine disabilities with the in-service treatment for lumbar strains. The examiner provided a thorough rationale, and the rationale is supported by the evidence of record. The Board does recognize the Veteran's lay statements linking his current lumbar spine disability to his in-service treatment for lumbar sprains, but is unable to credit his reporting as he had provided conflicting statements directly related to the establishment of a nexus. First, during the Board hearing, the Veteran testified that he first sought treatment at his VA medical center within one year following his separation from service. The claims file contains no such record. Moreover, both VA examination reports show that following service, he reported being initially seen in 1999. Therefore, as he has provided conflicting statements as to when he initially sought treatment following service, the Board is unable to credit his reporting as to continuity of symptomatology. Second, during the Board hearing, he testified that following an accident, he underwent an X-ray study which revealed an old fracture, and that he was told the residual fracture was related to his in-service injury. However, in a September 2019 letter, his treating nurse practitioner stated that his history of thoracic compression fractures was etiologically related to a motor vehicle accident that occurred in 2017. Therefore, the Board in unable to credit his reporting as it relates to establishing a nexus between his current lumbar spine condition and his in-service treatment. For these reasons, the Board finds the Veteran's lay statements in this matter to be of little probative value. Similarly, with regard to the September 2019 letters from his treating chiropractor and nurse practitioner noting chronic low back pain since 1987, as both statements are clearly based on the Veteran's reporting, which the Board is not able to credit, both are of little probative value. Accordingly, the Board finds the June 2022 VA examination report the most probative as it is based on an accurate factual background. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and he provided a persuasive rationale. Additionally, although the Court found the prior May 2015 VA examination inadequate as the examiner did not consider treatment records dating from 2018, that examiner's conclusion further bolsters the June 2022 nexus opinion. Importantly, there is no medical evidence to the contrary. Thus, the Board finds that the third Shedden requirement has not been met and that the evidence of record is persuasively against the claim for service connection for a lumbar spine disability. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). 2. Right Foot Disability The Veteran seeks entitlement to service connection for a right foot disability. Specifically, he asserts that his current right foot disability is etiologically related to in-service treatment for a crush injury he sustained in April 1986. See December 2014 Claim. The Veteran is currently service connected for bilateral pes planus. The evidence of record includes STRs showing the Veteran was treated for a right foot crush injury in February 1986, which occurred while he was working on a tank. The clinician noted gross discoloration, mild edema, normal ROM and pain in the Achille's tendon. An April 1986 STR noted a right ankle crush injury. An X-ray study revealed no evidence of a fracture or dislocation, and the ankle appeared normal. A review of the November 1987 separation examination shows the Veteran was assessed with abnormal feet manifested by pes planus. He reported having foot trouble and the clinician noted right foot arthralgias related to a crush injury 2 years prior. The clinician noted "none" for any current summary of defects. The Veteran underwent a VA foot examination in May 2015. The examiner noted diagnoses for bilateral pes planus, and a 1986 right foot crush type injury. With regard to his in-service injury, the Veteran reported that his right foot became stuck between a tank's turret and hull, and that his foot, ankle and leg were purple for a couple months afterwards. He also reported that he sought treatment immediately following his separation from service and that he was given some pads for his arches. Following his initial treatment, he stated that he just dealt with his foot condition. The examiner opined that it was "less likely than not (less than 50% probability)" that the Veteran had a right foot condition that was etiologically related to service. In support of this opinion, the examiner noted that the Veteran denied any treatment for his foot for over 25 years, and that he had since worked on his feet as an auto mechanic. Accordingly, the examiner stated that it was not possible to say what impact the original injury would have on his current foot condition versus the past 25 plus years of working on his feet as a mechanic without some history of continuity. Accordingly, the examiner conclude that a nexus could not be established between the in-service injury and the current foot problem. At an August 2019 Board hearing, the Veteran testified that he injured his right foot when it became crushed between a tank's hull and turret while he was manually turning the turret, and that it took three to four minutes to free his foot. He also reported that his right foot was swollen and purple when he pulled off his boot, and that his right foot had bothered him since that time. Following service, he reported seeking treatment at his VA medical center and that he was treated with foam pads placed in his shoes. He underwent another VA examination in June 2022, which noted diagnoses for bilateral pes planus and a 1986 right foot crushing type injury. The Veteran reported current symptoms of pain to the plantar aspect and near the arches of his feet and great right toe. He also reported bilateral foot pain upon sitting, standing and walking. The right foot was not manifested by plantar fasciitis, Morton's neuroma, hammer toe, hallux valgus, hallux rigidus, or acquired pes cavus. He used shoe inserts to treat his symptoms. An imaging study revealed mild degenerative changes to the right first MTP and interphalangeal joints. The examiner opined that it was "less likely than not (less than 50% probability)" that the current right foot condition was etiologically related to service as a nexus between the in-service injury and the current right foot condition had not been established. In this regard, while the examiner noted that the November 1987 separation examination documented a history of arthralgias from a right foot crushing injury, the examiner further noted that the clinician indicated "none" under the summary of defects as well as the absence of recommendations for further treatment. In addition, the examiner noted that an X-ray study at the time of the crush injury was negative. Based on that fact, the examiner stated that the type of injury the Veteran sustained (i.e., one that did not result in a fracture) healed between a few days and a few weeks. The examiner further relied on the absence of any documented treatment for a right foot condition between separation of service and 2015, and determined that there was a lack of evidence in the post-service medical records indicating any continuity of symptomatology. In this regard, the examiner rationalized that if there had been a chronic right foot condition since separation from service, the Veteran would have sought treatment. As no such treatment was shown, the examiner determined that a nexus could not be established. After a review of the evidence of record, the Board finds that entitlement to service connection for a right foot disability is not warranted. In this regard, the Board finds the June 2022 VA examination report the most probative evidence of record. Based on the evidence of record and cited medical principles, the examiner concluded that a nexus could not be established between the in-service crush injury and the current right foot conditions. The Board finds the examination report adequate and probative as it clearly describes the type of in-service injury the Veteran sustained (i.e., a crush injury not resulting in a fracture), the time frame for that type of injury to heal, and the significant of the absence of evidence of ongoing treatment for any residual right foot condition since service. The examiner's nexus opinion further takes into consideration the Veteran's lay statements that he had not sought treatment for his right foot for over 25 years. Based on the lack of treatment sought, the examiner concluded that a chronic right foot condition other than pes planus could not be established, and therefore, a nexus could not be established linking the current right foot degenerative changes to the Veteran's period of service. The Board does recognize the Veteran's lay statements linking his current right foot conditions to his in-service injury. However, it is unclear from his lay statements whether his reported symptoms since service pertain to any foot condition other than his service-connected bilateral pes planus. In this regard, the only treatment he reported receiving following separation from service involved being prescribed shoe inserts. See August 2019 Board Hearing Transcript. As noted above, he is service connected for bilateral pes planus, and that condition has been treated with prescribed shoe inserts. See June 2022 VA Examination Report. The June 2022 VA examiner also specifically addressed the diagnosed right foot degenerative changes separate from the service-connected pes planus. Therefore, the Board finds the examiner's analysis more probative to the issue on appeal than any lay statements provided. In any event, to the extent the Veteran is competent to provide lay statements as to his degenerative right foot conditions, the examiner has training, knowledge, and expertise on which he relied to form his opinion, and he provided a persuasive and thorough rationale. There is no medical evidence to the contrary. For these reasons, the third Shedden requirement has not been met and the probative evidence of record is persuasively against the claim. The claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.