DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

STEVEN D. REISS · 2023 · Case ID: 23011877

MIXED

Summary

The veteran, who served in the U.S. Army from May 1968 to April 1971, appeals the denial of service connection for hypertension and the remand of claims for right and left lower extremity varicose veins. The Board granted service connection for a back disability, diagnosed as lumbosacral spine degenerative arthritis and lumbar spine disc disease with left lower extremity radiculopathy, finding it secondary to his service-connected left total knee replacement and/or right foot metatarsalgia with pes planus, with obesity as an intermediate step. The Board also granted service connection for erectile dysfunction, finding it secondary to his service-connected disabilities and associated medication use, resolving doubt in the veteran's favor due to a modest association between NSAID use and erectile dysfunction. Service connection for hypertension was denied, as the Board found the evidence, including a September 2022 VA opinion, weighed against a service connection, citing family history and other risk factors as more influential than the single elevated blood pressure reading in service. The claims for varicose veins were remanded due to an inadequate VA addendum opinion that failed to establish a nexus to service-connected conditions or adequately address the role of obesity as an intermediate step.

Rationale

Secondary to service-connected knee and foot conditions; Obesity as intermediate step; Benefit of the doubt applied due to approximate balance of evidence

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

17-54 246

Full Decision Text

Citation Nr: 23011877
Decision Date: 02/27/23 Archive Date: 02/27/23

DOCKET NO. 17-54 246
DATE: February 27, 2023

ORDER

Entitlement to service connection for a back disability, diagnosed as degenerative arthritis of the lumbar spine with lumbar disc disease and left lower extremity radiculopathy, is granted.

Entitlement to service connection for erectile dysfunction is granted.

Entitlement to service connection for hypertension is denied.

REMANDED

Entitlement to service connection for right lower extremity varicose veins is remanded.

Entitlement to service connection for left lower extremity varicose veins is remanded.

FINDINGS OF FACT

1. The Veteran's back disability, diagnosed as lumbosacral spine degenerative arthritis and lumbar spine disc disease with left lower extremity radiculopathy, is proximately due to and caused by his service-connected left total knee replacement and/or secondary to his service-connected right foot metatarsalgia with pes planus.

2. Resolving all doubt in the Veteran's favor, erectile dysfunction is proximately caused by his service-connected disabilities and associated medication.

3. The Veteran's hypertension did not have its onset in service or within one year after separation from service and is not otherwise related to service.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for a back disability, diagnosed as lumbosacral spine degenerative arthritis and lumbar spine disc disease with left lower extremity radiculopathy, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

2. The criteria for entitlement to service connection for erectile dysfunction have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from May 1968 to April 1971.

These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2010 and November 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified before the undersigned Veterans Law Judge in a January 2021 virtual hearing. At the January 2021 hearing, the Veteran and his attorney explicitly indicated that entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was not being raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, such is not characterized as being on appeal and will not be addressed further.

These matters were previously before the Board in November 2021 and July 2022 when they were remanded for additional development.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. A veteran seeking compensation under these provisions must establish three elements: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may be established for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; El-Amin v. Shinseki, 26 Vet. App. 136 (2013); Allen v. Brown, 7 Vet. App. 439 (1995).

1. Entitlement to service connection for a back disability.

The Veteran contends that his back disability is secondary
, 1167 (Fed. Cir. 2004)).

1. Entitlement to service connection for a back disability.

The Veteran contends that his back disability is secondary to his service-connected left total knee replacement and/or secondary to his service-connected right foot metatarsalgia with pes planus. See January 2021 hearing. The Veteran has also reasonably raised the theory of entitlement that his obesity is an intermediate step due to his service-connected disabilities and his back disability. See March 2010 Veteran correspondence.

Although obesity is not a condition for which service connection may be granted, obesity may qualify as an "intermediate step" between a service-connected disability and another current disability. See VAOPGCPREC 1-2017; see also Garner v. Tran, 33 Vet. App. 241 (2021); Walsh v. Wilkie, 32 Vet. App. 300 (2020). In a secondary service connection claim, a theory of obesity as an intermediate step is raised when there is some evidence in the record which draws an association or suggests a relationship between the veteran's obesity, or weight gain resulting in obesity, and a service-connected condition. Garner v. Tran, 33 Vet. App. 241 (2021).

The Veteran has a current diagnosis of lumbosacral spine degenerative arthritis and lumbar spine disc disease. See January 2022 VA back conditions examination; see also August 2010 VA back conditions examination; September 1991 VA lumbosacral spine imaging.

The Board notes that the Veteran has been afforded numerous examinations and opinions to determine the nature and etiology of his back disability. The Board has already found the August 2010 VA examination to be inadequate as it was conclusory in nature and did not adequately address aggravation. See November 2021 Board remand. The Veteran was afforded additional VA examinations in January 2022, with an addendum opinion in March 2022. However, the Board has also found the January 2022 examination and March 2022 addendum opinion to not be in compliance with the prior November 2021 Board remand directives. See July 2022 Board remand.

Most recently, an addendum opinion was secured in September 2022 to determine the onset and etiology of the Veteran's back disability. After a review of the evidence of record, the Board finds that entitlement to service connection for a back disability, diagnosed as lumbosacral spine degenerative arthritis and lumbar spine disc disease, is warranted.

In reaching this finding, the Board notes that the September 2022 examiner provided a negative nexus opinion, opining that the currently available evidence does not support that the Veteran had such a posturing or significant gait abnormality, such as a Trendelenburg gait, that would result in the lumbar degenerative pattern with bulging discs similar to that noted on 1991 MRI. The examiner further stated that the Veteran's obesity is likely a significant factor in his lumbar condition, and medical literature consistently notes an association between obesity and lumbar conditions. However, the examiner indicated that the Veteran's obesity developed due to poor dietary choices. In reviewing the evidence of record, the Board notes that at least as early as May 1995, the Veteran was complaining of favoring his right leg because of his left leg, losing his balance, and objective evidence revealed lateral instability. See May 1995 Hearing Officer hearing testimony; May 1995 VA joints examination report. The evidence thereafter continues to show the Veteran's complaints of his left knee giving out, and objective evidence of laxity and lateral instability, with no finding regarding his gait. See January 1997 VA joints examination. Beginning at least as early as November 2000, the evidence reflects findings of an abnormal gait because of the Veteran's service-connected left knee disability, and by March 2005, that he was walking with a cane. See November 2000 VA feet examination report; see also August 2001 VA feet examination report; October 2002 VA neurology examination report; March 2005 private medical record. Hence, to the extent the September 2022 VA examiner opined
report. The evidence thereafter continues to show the Veteran's complaints of his left knee giving out, and objective evidence of laxity and lateral instability, with no finding regarding his gait. See January 1997 VA joints examination. Beginning at least as early as November 2000, the evidence reflects findings of an abnormal gait because of the Veteran's service-connected left knee disability, and by March 2005, that he was walking with a cane. See November 2000 VA feet examination report; see also August 2001 VA feet examination report; October 2002 VA neurology examination report; March 2005 private medical record. Hence, to the extent the September 2022 VA examiner opined that the evidence did not show a posturing or significant gait abnormality, the Board finds that such finding is inconsistent with the evidence of record as such is supported at least as early as May 1995 based on the Veteran's competent and credible subjective statements, and later supported by objective medical evidence.

Additionally, while the September 2022 VA examiner indicated that the Veteran developed obesity due to his poor dietary choices, the Board finds this rationale is nonresponsive to the Veteran's contentions that due to his service-connected left total knee replacement and/or right foot metatarsalgia with pes planus, he became less active and obese, and developed his back disability. Notably, the September 2022 VA examiner has conceded that the medical literature supports an association between obesity and lumbar conditions. Thus, the critical inquiry in this case is whether there is a relationship between the Veteran's obesity and his back disability.

In support of his claim, the Veteran has submitted a February 2010 lay statement from C.C., identified as a former co-worker of the Veteran, wherein it was stated that due to the Veteran's foot, knee and back problems, the Veteran had to give up activities like bowling, and lead to a lot of weight gain. In addition, VA treatment records reflect the Veteran's complaint of gaining weight due to being inactive, including due to his left knee disability. See September 2003 VA treatment record (reporting a weight of 262 pounds). The evidence of record shows that from June 1976 to May 2017, the Veteran gained 100 pounds. See June 1976 VA examination (noting a weight of 205 pounds); cf. May 2017 VA treatment record (noting a weight of 305 pounds).

Based on the September 2022 VA examiner's finding that medical literature supports an association between obesity and lumbar conditions, post-service treatment records reflecting a significant weight gain since separation from service, lay statements indicating the Veteran's activity level decreased, at least in part, due to his service-connected disabilities, the Board finds that the evidence is in approximate balance, and therefore the benefit-of-the-doubt rule is applicable, and the Veteran's back disability, diagnosed as lumbosacral spine degenerative arthritis and lumbar spine disc disease, is proximately due to his service-connected left total knee replacement and/or secondary to his service-connected right foot metatarsalgia with pes planus with obesity serving as an intermediate step. See Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). Accordingly, service connection for a back disability, diagnosed as lumbosacral spine degenerative arthritis and lumbar spine disc disease, is warranted on a secondary basis. See 38 C.F.R. § 3.310(a).

2. Entitlement to service connection for erectile dysfunction.

The Veteran contends that his erectile dysfunction is secondary to his service-connected disabilities, to specifically include medication to treat his service-connected disabilities.

At the outset, the Board notes that the Veteran was afforded a VA examination in July 2011 to determine the nature and etiology of his erectile dysfunction. In November 2021, the Board found this examination and opinion to be inadequate, and thus the examination and opinion will not be addressed further. See El-Amin, 26 Vet. App. at 140-41.

The Veteran was again afforded a VA examination in January 2022, and an addendum opinion in March 2022. In July 2022, the Board found that the matter had to be remanded again for compliance with the previous remand instructions as the November 2021 remand directives had not been fulfilled. See Stegall v. West, 11 Vet. App. 268 (1998).

The Veteran was afforded another VA examination and opinion in September 2022. After a review of the September 2022 VA examination and opinion, the Board finds the examination to be inadequate. The September 2022 VA examiner opined that while the Veteran has been treated with Diclofenac and other nonsteroidal anti-inflammatory drugs (NSAIDs), there was only a modest association of NSAID use with erectile dysfunction risk. It was further opined that the Veteran has other chronic diagnoses that could be causing a multifactorial issue with erectile dysfunction that are not service connected. Notably, such opinions are speculative in nature (i.e., "could be") and are of limited probative value. See Obert v. Brown, 5 Vet. App. 30, 33 (1993). Nonetheless, while the examiner indicated there was only a modest association of NSAID use and erectile dysfunction, such reasoning supports that there is at least an association between NSAID use and erectile dysfunction. Resolving all reasonable doubt in favor of the Veteran, the Board finds that there is therefore an association between NSAID use and erectile dysfunction. See Lynch, 21 F.4th at 781.

The evidence of record shows that the Veteran has been prescribed and using nonsteroidal anti-inflammatory drugs since at least July 1991 for his service-connected disabilities. See July 1991 VA treatment record (prescribed Motrin for his service-connected left knee disability); see also May 1995 Hearing Officer transcript (testifying he takes ibuprofen, a NSAID, 3 times per day for left leg pain); January 1997 VA joints examination (indicating present treatment for his service-connected left knee disability included ibuprofen twice per day); June 2010 VA treatment record (discharge instructions include taking Diclofenac twice per day as needed for relief from chronic low back pain).

After a review of the evidence of record, the Board finds that the evidence is in approximate balance, and therefore the benefit-of-the-doubt rule is applicable, and the Veteran's erectile dysfunction is secondary to his service-connected disabilities, to specifically include medication to treat his service-connected disabilities. See Lynch, 21 F.4th at 781. The evidence shows that the Veteran has been prescribed NSAIDs for his service-connected disabilities since at least 1991, and the September 2022 VA examiner opined there was an association, albeit modest, between NSAID use and erectile dysfunction. Hence, the Board finds that service connection for erectile dysfunction is warranted.

3. Entitlement to service connection for hypertension.

The Veteran contends that his hypertension is directly related to service, or alternatively, secondary to his service-connected disabilities.

The Veteran's service treatment records include his December 1970 separation report of medical examination reflecting an elevated blood pressure reading of 138/92.

Post-service treatment record records include a June 1991 VA treatment record that found a blood pressure reading of 130/90. On June 1976 VA examination, a blood pressure reading of 130/86 was found. A September 1994 VA treatment record found a blood pressure reading of 146/90. At least as early as July 1997, VA treatment records reflect a diagnosis of hypertension, and it was noted he was placed on Lisinopril with good control of hypertension.

At the outset, the Board notes that the Veteran was afforded a VA examination in July 2011 to determine the nature and etiology of his hypertension. In November 2021, the Board found this examination and opinion to be inadequate, and thus the examination and opinion will not be addressed further. See El-Amin, 26 Vet. App. at 140-41.

On September 2022 VA examination, it was opined that the Veteran's hypertension was less likely than not incurred in or
and opinion to be inadequate, and thus the examination and opinion will not be addressed further. See El-Amin, 26 Vet. App. at 140-41.

On September 2022 VA examination, it was opined that the Veteran's hypertension was less likely than not incurred in or proximately due to his active duty service, or proximately due to or aggravated by a service-connected disability. It was conceded the Veteran had an elevated blood pressure reading on separation. However, the examiner noted that the Veteran did not have numerous blood pressure readings diagnostic of hypertension in service. The examiner further indicated that the Veteran had several risk factors for hypertension, the most significant being family history. It was explained that medical literature notes that family history of hypertension is the most influential and significant risk factor resulting in hypertension. Additionally, the Veteran has a history of smoking, his gender, diabetes mellitus type 2 diagnosis, are all risk factors for hypertension.

While the Veteran believes that his hypertension is related to his active military service, or is secondary to a service-connected disability, he is not competent to provide the medical etiology in this case. The issue is medical complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

To the extent the Veteran had an elevated blood pressure reading on December 1970 separation report of medical examination, such is not adequate for VA purposes to establish a diagnosis of hypertension. See 38 C.F.R. § 4.104.

There is no competent scientific or medical evidence of record to support the Veteran's contention that his hypertension is related to his active military service or is secondary to a service-connected disability. The most probative competent evidence in the record is that reflected in the September 2022 VA examination where it was opined that the Veteran's hypertension was less likely than not incurred in or proximately due to his active duty service, or proximately due to or aggravated by a service-connected disability. The September 2022 VA opinion was provided after a review of the Veteran's claims file, and provided by a professional competent to opine as to the etiology of the Veteran's hypertension. On this basis, the Board finds that the September 2022 VA opinion is the most probative evidence of record and is against the Veteran's claim for service connection for hypertension. Notably, there is no competent medical opinion to the contrary.

Hence, the Board finds that the evidence is against the Veteran's claim and not in approximate balance, the benefit-of-the-doubt rule is not applicable, and therefore service connection hypertension is not warranted. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

REASONS FOR REMAND

4. Entitlement to service connection for right lower extremity varicose veins is remanded.

5. Entitlement to service connection for left lower extremity varicose veins is remanded.

As noted above, the Board remanded these matters in November 2021 and July 2022 for an addendum opinion regarding the onset and etiology of the Veteran's right and left lower extremity varicose veins. The Board sought an opinion whether the Veteran's bilateral lower extremity varicose veins were proximately due to, the result of, caused by, or aggravated by his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus, with consideration of whether obesity was an "intermediate step" between a service-connected musculoskeletal disability(ies) in causing or contributing to any degree to right and left lower extremity varicose veins.

An addendum opinion was provided in September 2022. Unfortunately, while the Board regrets additional delay, the Board finds that the September 2022 VA addendum opinion is inadequate. Specifically, the examiner stated that the Veteran's right foot metatarsalgia and pes planus and lower extremity varicose veins were not medically related. They are separate entities entirely and a nexus has not been established. The opinion is inadequate as the opinion was conclusory in nature, without supporting rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the examiner found that obesity likely did contribute to his varicose veins, along with his decades of hours of standing during his employment at the post office, but found that the Veteran's obesity was due to poor dietary choices. Such is nonresponsive to the Veteran's contentions that his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus caused him to be inactive, resulting in obesity. Accordingly, the Board finds that these matters must be remanded for another addendum opinion regarding the etiology of the Veteran's right and left lower extremity varicose veins.

Outstanding VA treatment records may be pertinent to the claims on appeal, are constructively of record, and must be obtained. See Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020).

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. Obtain an addendum opinion regarding the onset and etiology of the Veteran's right and left lower extremity varicose veins. After a review of the claims file, the examiner should opine as to the likelihood:

(a) The Veteran's diagnosed right and left lower extremity varicose veins are proximately due to, the result of, or caused by his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus.

(b) The Veteran's diagnosed right and left lower extremity varicose veins were aggravated by his service-connected left total knee replacement and/or service-connected right foot metatarsalgia with pes planus.

The examiner must particularly consider whether obesity was an "intermediate step" between a service-connected musculoskeletal disability(ies), in causing or contributing to any degree to right and left lower extremity varicose veins. Reliance in providing a negative opinion based on obesity being due to poor dietary decisions will render any negative opinion to be inadequate.

The examiner must acknowledge and discuss the Veteran's competent statements as to his inability to be active due to his service-connected musculoskeletal disabilities.

The examiner must provide a rationale for all opinions expressed. Failure to provide a rationale, and to address all theories of entitlement above, will result in the opinion being found to be inadequate.

If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that a service-connected disability be diagnosed or even service-connected at the time right and left lower extremity varicose veins were incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate.

STEVEN D. REISS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Marley, 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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