INTERVERTEBRAL DISC SYNDROME

C. CRAWFORD · 2020 · Case ID: 20071775

DENIED

Summary

The veteran, who served from March 1981 to March 1986, appeals the denial of service connection for a back disability, both directly and secondarily to his service-connected right ankle disability. The veteran contended that his back condition manifested during service due to a fall and that it is secondary to his ankle condition, including a contended antalgic gait. The Board found the first element of service connection met, as the veteran has a current back diagnosis and his service treatment records documented an in-service fall with a lower back contusion. However, the Board found the evidence weighed against the claim for direct service connection. While the service records noted an in-service fall, they did not show a chronic back injury, and the separation examination found his spine normal with no recurrent back pain. Subsequent VA examinations consistently opined that the veteran's current degenerative disc disease and back pain were less likely than not related to service, attributing them instead to aging, obesity, a post-service motor vehicle accident, and normal wear and tear. The Board found these opinions probative and adequately reasoned. For the secondary claim, the Board reviewed VA examinations that found the right ankle disability was not severe enough to cause a gait disturbance that would lead to back disarrangement, attributing the back condition to other factors. The Board denied service connection for the back disability on both direct and secondary bases.

Rationale

Weight of evidence against direct service connection.; No chronic back injury shown in service.; Separation exam showed normal spine and no recurrent back pain.; Post-service factors (aging, obesity, MVA) attributed to current disability.; Secondary claim denied as ankle disability not severe enough to cause gait disturbance leading to back disarrangement.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

10-22 421

Full Decision Text

Citation Nr: 20071775
Decision Date: 11/05/20 Archive Date: 11/05/20

DOCKET NO. 10-22 421
DATE: November 5, 2020

ORDER

Entitlement to service connection for a back disability, to include as secondary to service-connected generalized joint pain diagnosed as arthralgia calcaneal Achilles and plantar enthesopathy of the right ankle (right ankle disability), is denied.

FINDING OF FACT

The evidence of record does not show that the Veteran’s current back disability manifested during, or as a result of, active military service, nor has his current back disability been caused by, or aggravated by, a service-connected disability.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a back disability, to include as secondary to service-connected right ankle disability, have not been met. 38 U.S.C. §§ 1112, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from March 1981 to March 1986.

This matter originally came before the Board of Veterans’ Appeal (Board) on appeal from an April 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Following the April 2009 rating decision, this claim has a long procedural history.

In February 2015 and May 2016, the Board remanded the claim for evidentiary development. In April 2017, the Board denied the Veteran’s claim for service connection for a back disability and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Order, pursuant to a Joint Motion for Remand (JMR) of the same month, the Court vacated and remanded the April 2017 Board decision. Thereafter, in July 2018 and May 2020, the Board remanded the claim again for additional evidentiary development. This matter is again before the Board; there has been substantial compliance with the May 2020 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to service connection for a back disability, to include as secondary to a service-connected right ankle disability

The Veteran contends that his back disability manifested during active duty service, to include as a result of a fall. Furthermore, the Veteran alleges that his back disability is secondary to his service-connected right ankle disability, to include the long-term gait caused by the right ankle disability.

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Generally, to establish service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Also, an increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310 (b); Libertine v. Brown, 9 Vet. App. 521 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Additionally, service connection may be established for chronic diseases, to include arthritis, manifesting to a certain degree within a year after service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (a). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307, so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected
Brown, 7 Vet. App. 439, 448 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Additionally, the Board notes that it is has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss in detail all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, in regard to the service connection claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

As noted above, this claim has been remanded numerous times in order to obtain adequate medical opinions that address the Veteran’s contentions and allow the Board to make a fully informed decision. Accordingly, the Board will address direct service connection before addressing the Veteran’s secondary service connection contention.

In regard to direct service connection, the Veteran contends that his back disability manifested during active duty service, to include as a result of a fall.

Turning to the evidence of record, the Board finds that the Veteran has a current diagnosis of a back disability as noted on the March 2009 and April 2015 VA examination reports, as well as the April 2020 addendum to the August 2019 VA examination report. The Board has recharacterized the Veteran’s claim to include all back disabilities that have been diagnosed, particularly lumbago/mild compression of T-11 vertebra, back pain, degenerative disc disease, and degenerative arthritis of the lumbar spine. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the first element of service connection is met.

Turning to the second element of direct service connection, the Board notes that the Veteran’s service treatment records (STRs) document a history of a fall down the stairs in October 1982, with an assessment of a low back contusion. Therefore, the Board finds that the second element of service connection is also met.

Accordingly, the question in this case is whether a causal relationship or nexus exists between the Veteran’s back disability and military service, to include his fall in October 1982. The Board finds the weight of the evidence is against the claim.

In this regard, while the Veteran’s STRs note an in-service fall, the evidence does not show that the Veteran suffered a chronic back injury during active military service. The Veteran is noted to have fallen down the stairs in October 1982, when he complained of back pain and was diagnosed with a lower back contusion. However, his STRs contain no further evidence of injury to the back or complaints of symptomatology associated with the back, and according to the Veteran’s February 1986 release from active duty examination report, an evaluation of the spine was deemed to be normal. Furthermore, on the accompanying Report of Medical History, the Veteran denied having, or ever having had, recurrent back pain.

The Veteran first underwent a VA examination in February 2009. While the examiner noted that he was unable to resolve whether the Veteran’s back condition was sustained in service without resort
back injury during active military service. The Veteran is noted to have fallen down the stairs in October 1982, when he complained of back pain and was diagnosed with a lower back contusion. However, his STRs contain no further evidence of injury to the back or complaints of symptomatology associated with the back, and according to the Veteran’s February 1986 release from active duty examination report, an evaluation of the spine was deemed to be normal. Furthermore, on the accompanying Report of Medical History, the Veteran denied having, or ever having had, recurrent back pain.

The Veteran first underwent a VA examination in February 2009. While the examiner noted that he was unable to resolve whether the Veteran’s back condition was sustained in service without resorting to mere speculation, he indicated that the Veteran’s back condition was most likely caused by several factors, including aging, weight, previous injury and his current profession (aviation mechanic). As the examiner found several factors to the Veteran’s back disability, he was unable to conclusively determine whether the injury was a result of an in-service occurrence without resorting to mere speculation.

In April 2015, the Veteran was afforded another VA examination. The April 2015 VA examiner indicated that while in service, the Veteran did not seek any treatment for his back after the October 1982 fall from the stairs. In addition, the February 1986 separation report does not include any reference for recurrent back pain. The examiner noted that since the October 1982 incident, the Veteran first reported low back pain post-service in September 1987, when he suffered injuries from a motor vehicle accident. The report also indicates that the Veteran was diagnosed with degenerative disc disease (DDD) after his military service. It further notes the Veteran's documented obesity. The examiner indicated that DDD is typically due to wear and tear of aging; however, additional risk factors would include trauma, such as that associated with a motor vehicle accident and obesity. Thus, the examiner concluded that it is less likely than not that the Veteran's back disability began during service or is related to service.

Furthermore, VA obtained an addendum opinion in April 2016. The April 2016 examiner reached the same conclusion as the April 2015 examiner and noted that the Veteran's DDD was less likely than not incurred in or caused by the in-service October 1982 fall or repetitive strenuous labor, as the spine was deemed to be normal at the time of the Veteran's separation from the military. In addition, the examiner noted that there are other factors, to include the Veteran's documented obesity and his post-service motor vehicle accident, that are known risk factors for DDD.

The Veteran underwent another VA examination in August 2019, in which the examiner provided a negative nexus opinion. During the August 2019 VA examination, the examiner noted that the Veteran reported being hit by a jet exhaust that knocked him across the flight deck around 1981 and was evaluated by a corpsman who stitched his arm laceration. The Veteran also reported separate incidents in 1982 in which he fell on three decks of steel stairs and was required to lift heavy objects, including 300-pound fuel tanks with the assistance of two others, as part of his military duties. In providing a negative nexus opinion, the examiner noted that while the Veteran had a documented injury to his back in 1982, he recovered without sequelae and on his February 1986 separation examination he was negative for recurrent back pain and examination of his spine was normal. Furthermore, the examiner noted that the Veteran was involved in a motor vehicle accident in 1987 where he reported loss of consciousness and back pain, as well as was evaluated with complaints of back pain in 1999 when he was referred to a chiropractor. The examiner concluded that the Veteran’s current back disability is less likely than not incurred in or caused by the incidents in his military service as his back strain had resolved prior to discharge and his current disability is most likely attributable to his history of obesity, motor vehicle accident, and normal aging.

In an April 2020 addendum opinion, another VA examiner reviewed the Veteran’s claims file and reiterated that his back disability is associated with the normal aging process in the 34 years since separation from the military, to include degenerative changes described on x-ray as disc space narrowing and facet hypertrophy.

Reading the April 2015, August 2016, and August 2019 medical reports with the April 2020 addendum as a whole and in context of the evidence of record, pursuant to Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012), the Board finds the medical opinions highly probative in adjudicating the Veteran’s claim for direct service connection as the examiners considered the evidence of record, as well as the Veteran’s lay statements, when reaching their conclusions and provided
back disability is associated with the normal aging process in the 34 years since separation from the military, to include degenerative changes described on x-ray as disc space narrowing and facet hypertrophy.

Reading the April 2015, August 2016, and August 2019 medical reports with the April 2020 addendum as a whole and in context of the evidence of record, pursuant to Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012), the Board finds the medical opinions highly probative in adjudicating the Veteran’s claim for direct service connection as the examiners considered the evidence of record, as well as the Veteran’s lay statements, when reaching their conclusions and provided adequate rationale to allow the Board to make a fully informed decision. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

Additionally, there is also no probative opinion to the contrary. To the extent that the Veteran asserts his low back condition incurred in active duty, the Board finds that he is competent to report experiencing back pain, but not competent to determine the etiology of such a disability, as it is a complex medical question beyond the ability of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Accordingly, the Board finds that the evidence of record does not support the award of service connection on a direct basis.

Nevertheless, the Veteran also contends that he is entitled to service connection for his back disability on a secondary basis. However, for the reasons that follow, the Board finds this contention is also not supported by the evidence of record.

As noted above, the Board finds that the Veteran has a current diagnosis of a back disability. Additionally, the Veteran is service-connected, in relevant part, for generalized joint pain diagnosed as arthralgia calcaneal Achilles and plantar enthesopathy of the right ankle (right ankle disability).

While the August 2016 VA examiner provided a secondary service connection nexus opinion, as the medical opinion is inadequate due to not being fully articulated or well supported pursuant to Stefl, as found in the February JMR, such opinion is provided no probative weight. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (requiring a medical opinion to support its conclusion “with an analysis that the Board can consider and weigh against contrary opinions.”).

However, the Veteran underwent another VA examination in August 2019, in which the examiner provided a negative nexus opinion. In support of her opinion, the examiner noted that an antalgic gait is associated with an adjustment in normal walking to avoid pain on the side affected and that impact to the spinal column is rare, but when it does occur, there is a substantial antalgic gait and would impact the ipsilateral joint. To the contrary, the examiner explained that the Veteran’s pattern of disability is bilateral, consistent with the development of osteoarthritis related to overuse and/or normal wear and tear, and radiographic findings report no misalignment. The examiner also found that the Veteran’s right ankle disability is not severe enough to cause gait disturbance that would lead to back disarrangement. Instead, the examiner attributed the Veteran’s back disability to obesity, advancing age, and normal wear and tear.

Additionally, the AOJ obtained an addendum opinion in July 2020, in which the VA examiner reached the same conclusion as the August 2019 VA examiner and provided additional rationale in support. The examiner noted the Veteran’s report of an antalgic gait due to his right ankle disability, as well as the February 2009 VA examiners report of an antalgic gait, but found these records in conflict with the remaining medical records which do not support the presence of a perceptible antalgic gait. The examiner referenced the April 2015 VA examination, in which the Veteran reported a gait disturbance, but noted that no record of an observed antalgic gait was made, as well as numerous instances of normal examinations with primary care providers, physical therapy visits, and personal evaluations. The examiner noted that review of medical literature indicates that a gait disturbance would need to be significant, such a disarticulation at the knee or hip or amputation with prosthesis to cause disarrangement to the lumbar region. To the contrary, the examiner found that the Veteran’s right ankle disability is not severe enough to cause gait disturbance or severe enough to cause or aggravate his back disability. Accordingly, the examiner found that the Veteran’s back disability is less likely than not caused or aggravated beyond its natural progression
Veteran reported a gait disturbance, but noted that no record of an observed antalgic gait was made, as well as numerous instances of normal examinations with primary care providers, physical therapy visits, and personal evaluations. The examiner noted that review of medical literature indicates that a gait disturbance would need to be significant, such a disarticulation at the knee or hip or amputation with prosthesis to cause disarrangement to the lumbar region. To the contrary, the examiner found that the Veteran’s right ankle disability is not severe enough to cause gait disturbance or severe enough to cause or aggravate his back disability. Accordingly, the examiner found that the Veteran’s back disability is less likely than not caused or aggravated beyond its natural progression by his service-connected right ankle disability, to include a contended antalgic gait disturbance, and is most closely attributable to obesity, advancing age, and normal wear and tear.

Reading the August 2019 and July 2020 medical reports as a whole and in context of the evidence of record, pursuant to Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012), the Board finds the medical opinions highly probative in adjudicating the Veteran’s claim for secondary service connection as the examiners considered the evidence of record, especially as it relates to the Veteran’s back and right ankle disabilities, as well as the Veteran’s lay statements, when reaching their conclusions and provided adequate rationale to allow the Board to make a fully informed decision. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).

Additionally, there is also no probative opinion to the contrary. To the extent that the Veteran asserts his back disability is proximately due to or aggravated by his service-connected right ankle disability, to include due to the effects of an antalgic gait, the Board finds that he is competent to report experiencing pain and walking with a gait disturbance, but not competent to determine the etiology of such a disability, as it is a complex medical question beyond the ability of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board has also reviewed and considered the Veteran’s VA and private treatment records. While the Veteran’s treatment records document complaints and treatment for back pain, back disabilities, a right ankle condition, and an occasional gait disturbance, they do not contain an etiological opinion and thus, are inadequate to support granting service connection.

The Board also acknowledges the internet articles referenced by the Veteran’s representative. However, the Board finds that those articles and internet references are too general to establish service connection for the Veteran’s claim. Rather, the medical opinions are of more probative value as the opinions were based upon review of the evidence specific to this Veteran’s claim.

Furthermore, there is no objective evidence that the Veteran’s back disability manifested to a compensable degree within a year of service to allow for presumptive service connection for a chronic disease. As noted above, the Veteran’s February 1986 release from active duty examination report noted a normal evaluation of the spine and the Veteran denied having, or ever having had, recurrent back pain. The next record of complaints associated with the back are from September 1987, over a year after the Veteran separated from military service in March 1986, when he was in a motor vehicle accident. It was further noted at the time of the motor vehicle accident that the Veteran did not suffer from any other disabling conditions not due to the accident.

Nor is there any competent evidence of an in-service manifestation of a back disability to allow for service connection based on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As noted above, the Veteran’s STRs document a fall resulting in a lower back contusion and back pain in October 1982. However, his STRs contain no further evidence of injury to the back or complaints of symptomatology associated with the back, and according to the Veteran’s February 1986 release from active duty examination report, an evaluation of the spine was deemed to be normal. Furthermore, on the accompanying Report of Medical History, the Veteran denied having, or ever having had, recurrent back pain. As such, the evidence of record fails to demonstrate that the Veteran suffered from a chronic disability of the back at the time of his separation from active duty to allow for service connection based on continuity of symptomatology.

For the foregoing reasons, the preponderance of the evidence is against the claim. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran's
STRs contain no further evidence of injury to the back or complaints of symptomatology associated with the back, and according to the Veteran’s February 1986 release from active duty examination report, an evaluation of the spine was deemed to be normal. Furthermore, on the accompanying Report of Medical History, the Veteran denied having, or ever having had, recurrent back pain. As such, the evidence of record fails to demonstrate that the Veteran suffered from a chronic disability of the back at the time of his separation from active duty to allow for service connection based on continuity of symptomatology.

For the foregoing reasons, the preponderance of the evidence is against the claim. Accordingly, the benefit of the doubt doctrine is not for application, and the Veteran's claim of entitlement to service connection for back disability must be denied, both on a direct and secondary basis. See 38. U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

C. CRAWFORD

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board N. B. 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.

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