DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

Summary

The Veteran, a Veteran who served from March 1974 to December 1994, appeals the denial of service connection for a lumbar spine disability. The Veteran contends the condition is either directly related to service or secondary to his already service-connected bilateral hip, right knee, and right ankle disabilities. The Board found the first element of service connection met, acknowledging the Veteran's current lumbar spine diagnosis of degenerative disc disease with chronic pain. Service treatment records indicated complaints of lower back pain in 1986 and 1988, and participation in a "healthy back school" in 1993. The Board found the May 2021 VA examination report to be flawed, as it provided a negative opinion on secondary service connection without adequately distinguishing between cause and aggravation, and failed to address how the service-connected hip, knee, and ankle conditions might have aggravated the lumbar spine condition. The Board found the March 2009 opinion from the Veteran's treating physician to be probative, as it was based on years of treatment, reviewed the Veteran's medical history, and attributed the progression of the lumbar spine condition to the service-connected hip, knee, and ankle disabilities. Given the equipoise between the VA opinion and the treating physician's opinion, the Board resolved reasonable doubt in the Veteran's favor. Service connection for the lumbar spine disability is granted.

Rationale

First element of service connection met; Service treatment records show complaints of lower back pain; Secondary service connection considered due to service-connected hip, knee, and ankle disabilities; VA opinion found less likely than not related to service-connected disabilities; Treating physician opinion found service-connected disabilities to be contributing factors; Evidence found to be in equipoise; Reasonable doubt resolved in Veteran's favor

Full Decision Text

Citation Nr: 21060745
Decision Date: 09/28/21	Archive Date: 09/28/21

DOCKET NO. 11-03 647
DATE:  September 28, 2021

ORDER

Entitlement to service connection for a lumbar spine disability is granted.

FINDING OF FACT

The evidence is at least in relative equipoise as to whether the Veteran's lumbar spine disability is proximately due to or aggravated by his service-connected bilateral hip, right knee, and right ankle disabilities; or was related to an in-service injury. 

CONCLUSION OF LAW

The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active air service from March 1974 to December 1994. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 

The present issue has previously been before the Board. In a March 2019 decision, the Board denied the Veteran's claim of entitlement to service connection for a lumbar spine disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a in June 2020 Memorandum Decision, the Court vacated the Board's decision and remanded the case to the Board for action consistent with the Memorandum Decision. The case was remanded by the Board in May 2021 for additional development. The case has now been returned to the Board for further appellate action. 

Service Connection  Back Disability

The Veteran contends that his current lumbar spine disability is either directly related to his active duty service or secondary to his service-connected bilateral hip, right knee, and right ankle disabilities. 

It is recognized that the Veteran has a current disability of the lumbar spine diagnosed as degenerative disc disease with chronic pain. As such, the Board finds that the first element of service connection, on either a direct or secondary basis, has been met. 38 U.S.C. §§ 1131, 5107(b); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303(a).

The Veteran's service treatment records (STRs) reveal complaints of lower back pain in March 1986 and back ache in February 1988. Treatment records from May 1993 and June 1993 also demonstrate that the Veteran attended and completed a "healthy back school" related to his ten year history of intermittent back pain. 

As to secondary service-connection, an October 1995 rating decision granted service connection for bilateral hip, right knee, and right ankle disabilities, effective as of January 1, 1995. The Veteran asserts that the combined effects of these disabilities have aggravated his lumbar spine condition beyond its natural progression. 

A May 2021 VA examination report provides a negative opinion as to the Veteran's contention of a relation between his present back condition and his service-connected disabilities. The examiner provided the rationale that the present back disability is age-related and reflects normal aging given the Veteran's age and prior occupation as a postal carrier. In finding that it is less likely than not that the Veteran's service-connected disabilities caused or aggravated the back condition beyond its natural progression, the examiner further concluded that because the service-connected disabilities do not present with any physical deformity, ankylosis of the major joints, neurologic impairment, or severe gait dysfunction, that they would not have a causative factor in the Veteran's degenerative disc disease. 

The Board finds that this opinion lacks probative value as the rationale provided is flawed. The opinion fails to address, once again, the difference between cause and aggravation; the recognition that just because a medical disability has not caused another to occur, it does not then follow that it simply has no effect on it. Aggravation of a disability is the recognition that those disabilities were not necessarily the but-for cause of the incurrence of injury or complained-of condition but have created additional severity of the condition beyond what would have been experienced in absence of those disabilities. 

The Veteran's medical history and treatment records provide supporting evidence to his claim. As noted by the May 2021 VA examiner, earlier VA treatment notes from 2006 included X-ray imaging studies which showed fairly unremarkable results aside from minimal spurring in the lumbar vertebrae. Treatment records from October 2006 show notable degenerative changes
 the recognition that just because a medical disability has not caused another to occur, it does not then follow that it simply has no effect on it. Aggravation of a disability is the recognition that those disabilities were not necessarily the but-for cause of the incurrence of injury or complained-of condition but have created additional severity of the condition beyond what would have been experienced in absence of those disabilities. 

The Veteran's medical history and treatment records provide supporting evidence to his claim. As noted by the May 2021 VA examiner, earlier VA treatment notes from 2006 included X-ray imaging studies which showed fairly unremarkable results aside from minimal spurring in the lumbar vertebrae. Treatment records from October 2006 show notable degenerative changes of the lumbar spine diagnosed as mild facet atrophy. Within only three years of that examination, the Veteran was diagnosed with spondylosis of the lumbar spine. While the Board cannot proffer its own medical opinion, it can acknowledge that the Veteran's lumbar spine disability progressed in severity within those few years. 

Finally, a medical opinion from March 2009 is of record from the Veteran's long-standing treating physician. The opinion is premised not only upon the direct treatment of the Veteran's condition, but also based upon the Veteran's reporting of his symptoms experienced over the period of years prior to treatment and explanation of his service-related injuries which led to his service-connected disabilities of the hips, right knee, and right ankle. The rationale provided therein suggests that the long-term effects of the injuries in service which resulted in the service-connected disabilities were contributing factors to the Veteran's ongoing back pain, experienced since service, and later diagnosed as degenerative disc disease. Although the opinion does not provide the ultimate conclusion in the specific terms of "more likely than not," the physician unequivocally attributes the Veteran's present back disability and its progression from a pain-experienced condition to a full diagnosis of degenerative disc disease, to the service-connected disabilities of the hips, knee, and ankle. The Board finds this opinion is probative, as it is provided by the Veteran's treating physician, addresses an accurate factual history, and is based upon a review of the Veteran's medical history and treatment. 

In considering the cumulative effect of the foregoing evidence, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107(b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

Kristin Haddock

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	E. Sutherell, 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.