INTERVERTEBRAL DISC SYNDROME

Summary

The veteran, who served in the U.S. Army from May 1980 to June 1983, appeals the denial of service connection for a low back disability. The veteran claims the current low back condition is related to service, including in-service treatment for back spasms, and is secondary to his service-connected flat feet, bilateral knees, or bilateral ankles. The Board acknowledged the veteran's current low back disability diagnosis. However, the Board found the evidence weighed against service connection. Multiple VA medical opinions were reviewed, with the May and November 2024 opinions being deemed competent and credible by the Board. These recent opinions concluded that the veteran's low back disability was less likely than not related to service, not proximately due to or the result of service-connected conditions, and not aggravated beyond its natural progression by those conditions. The Board noted that medical literature does not support a causal link between ankle or flatfoot conditions and lumbar degenerative disc disease. The veteran's lay testimony regarding gait changes was attributed by a VA examiner to a 2015 stroke, not service. The Board found the veteran's statements probative for symptoms but not for service connection, as they lacked the necessary medical expertise. The Board concluded that the evidence persuasively weighed against service connection, rendering the benefit of the doubt doctrine inapplicable. Service connection for the low back disability was denied.

Rationale

Evidence weighs against service connection; VA medical opinions found no nexus to service or aggravation; Veteran's lay testimony attributed gait changes to post-service stroke

Full Decision Text

Citation Nr: 25002589
Decision Date: 02/24/25	Archive Date: 02/24/25

DOCKET NO. 11-03 227
DATE: February 24, 2025

ORDER

Service connection for the Veteran's low back disability is denied.

FINDING OF FACT

The evidence is against a finding that the Veteran's low back disability is etiologically related to service or is caused or aggravated by a service-connected disability.                                                                                                                                                  

CONCLUSION OF LAW

The criteria for entitlement to service connection for low back disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served in the United States Army from May 1980 to June 1983. The Board is grateful to the Veteran for his service.

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

The Veteran testified before the undersigned at a hearing held in May 2016; a transcript of that hearing is of record.

The Veteran's appeal was previously remanded in August 2016, December 2020, June 2022, and most recently remanded by the Board in March 2024 for further development, including providing the Veteran with a VA examination and VA addendum medical opinions. As set forth more fully below, substantial compliance with the Board's March 2024 Remand directives has been found. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Service connection for the Veteran's low back disability.

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an 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, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis.

Service connection may also be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disability which is aggravated by a service-connected disability. In order to prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11Vet. App. 509 (1998).

The Veteran contends that his current low back disability is causally related to his military service, to include his in-service treatment for back spasms in the lumbar spine region, and as secondary to his service-connected bilateral flat feet, bilateral knee, or bilateral ankle disabilities.

As an initial matter, the Veteran has a current diagnosis of a low back disability. See December 2016 VA examination. Thus, the question for the Board is whether the Veteran's current low back disability is related to service and/or any of the claimed service-connected disabilities.

Post-service medical records indicate a July 2009 private medical record from the Veteran's private surgeon. The July 2009 report indicates that the Veteran's private surgeon stated that the Veteran has had painful collapsing flat feet all of his adult life. He noted that in 2001 the Veteran underwent a triple arthrodesis of the left foot to control the pain and collapsing nature of his left foot. The private surgeon stated that the Veteran still has occasional pain in this left foot, as well as the ankle of this extremity. It was noted that the Veteran's right foot continues to be extremely painful and the Veteran is limited on how much he can walk
 current low back disability is related to service and/or any of the claimed service-connected disabilities.

Post-service medical records indicate a July 2009 private medical record from the Veteran's private surgeon. The July 2009 report indicates that the Veteran's private surgeon stated that the Veteran has had painful collapsing flat feet all of his adult life. He noted that in 2001 the Veteran underwent a triple arthrodesis of the left foot to control the pain and collapsing nature of his left foot. The private surgeon stated that the Veteran still has occasional pain in this left foot, as well as the ankle of this extremity. It was noted that the Veteran's right foot continues to be extremely painful and the Veteran is limited on how much he can walk and what pace he can walk. Notably, the private surgeon stated that the Veteran is having secondary back pain from his collapsing flatfoot deformity.

A June 2011 VA medical opinion noted the Veteran's complaint of back pain during service in January 1981 but stated that lumbar spine spasms during service are not related to his current degenerative disc disease.

In September 2015, private medical records from a neurosurgery consultation noted the Veteran stating the following in regard to his medical history: "the Veteran presents with a long-standing history of back pain dating back to his military career. [The Veteran] sustained a serious fall during one of his training exercises in 1980 and since that point he has had struggles with regards to chronic axial low back pain."

Additionally, the Board notes the Veteran's lay statement regarding his altered gait during the May 2016 Board hearing. The Veteran testified that his gait has changed tremendously. He stated that he has very bad foot and ankle pain as well as excruciating back pain on a daily basis. The Veteran also testified that in regard to his altered gait, he relies on his right side more than his left, as he had a stroke in 2015 which affected his left side.

The Veteran was provided with a VA medical opinion in December 2016. The VA examiner opined that the Veteran's current lumbar spine condition is less likely than not related to his service-connected foot or ankle disorders. The rationale, in part, stated that "there is no pathologic or pathophysiologic relationship between the degenerative changes of his lumbar spine and his foot and ankle issues."

An addendum VA medical opinion was provided in October 2019, to address inadequacies found with the December 2016 VA medical opinion. The August 2019 VA examiner found that Veteran has a diagnosis of lumbar degenerative disc disease with lumbar spinal stenosis and lumbar radiculopathy, that required surgical intervention for this condition with lumbar decompression and fusion in October 2010. The VA examiner opined that Veteran's lumbar disabilities are less likely as not caused by the service-connected bilateral flat feet and/or service-connected degenerative joint disease of the right and left ankles. Also, the VA examiner noted that the Veteran's lumbar disabilities are less likely as not aggravated beyond its natural progression by the service-connected bilateral flat feet and/or service-connected DJD of the right and left ankles. The rationale indicated the following: "the commonly accepted medical literature, degenerative joint disease in a distally located weight bearing joint such as the ankles will not provide an etiology for the development of axial lumbar degenerative disc disease. Also, in the commonly accepted medical literature there is no causality for bilateral flat feet providing an etiology for the development of lumbar degenerative disc disease."

A subsequent VA medical opinion was provided in September 2021. The VA examiner provided negative medical opinions but no rationale other than the following: "the Veteran was unable to stand out of his wheelchair even with 2 person assist. He states he lives at an assisted living facility and requires 2 males to help him get up. Unable to perform any testing due to this. He may be able to perform testing if he were examined at his home with the assistance of those who normally assist him and have the proper equipment to prevent falls." As such, a March 2022 addendum report was provided indicating that the September 2021 VA examiner failed to comply with the December 2020 Board Remand instructions. Hence, in March 2022 a VA addendum medical opinion was provided for the Veteran's low back disability. The VA examiner opined that the Veteran's low back disability is not proximately due to or the result of the Veteran's service connected conditions and was not aggravated beyond its natural progression by the service connected conditions. 

Lastly, the Veteran was provided VA medical opinions in May 2024. The VA examiner opined that the Veteran's low back disability was not proximately due to his service-connected disabilities and did not increase in severity beyond is natural progression. The VA examiner stated the following: "There is no clear
 provided indicating that the September 2021 VA examiner failed to comply with the December 2020 Board Remand instructions. Hence, in March 2022 a VA addendum medical opinion was provided for the Veteran's low back disability. The VA examiner opined that the Veteran's low back disability is not proximately due to or the result of the Veteran's service connected conditions and was not aggravated beyond its natural progression by the service connected conditions. 

Lastly, the Veteran was provided VA medical opinions in May 2024. The VA examiner opined that the Veteran's low back disability was not proximately due to his service-connected disabilities and did not increase in severity beyond is natural progression. The VA examiner stated the following: "There is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individual's gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait." Additionally, the VA examiner indicated that "this level of severity is not supported based on record review, history or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not 'spread' to another or cause damage to it." The VA examiner also provided a direct service connection opinion, noting that the Veteran's claimed low back disability is less likely than not related to service. The VA examiner indicated that there was no evidence of chronicity during service or after service and stated that a post-service injury is considered to be a more likely etiology. The VA examiner provided medical literature to support their conclusions. 

The Agency of Original Jurisdiction (AOJ) found that since the May 2024 medical opinions did not discuss or comment on the July 2009 Report and May 2016 hearing testimony, as required by the March 2024 Board Remand, the AOJ requested an addendum medical opinion. In November 2024, an addendum medical opinion was provided to consider the July 2009 Report and May 2016 hearing testimony. The VA examiner addressed the July 2009 Report and the May 2016 hearing testimony in the addendum medical opinion, noting that his gait change is most likely due to stroke of 2015. The VA examiner stated the following: "current back pain is consistent with age, obesity and post military activities. 7/2009 MO was not supported with substantiated medical literature. Regarding the Veterans May 2016 hearing testimony where he testified his gait has changed tremendously: this is not supported in objective exams." The VA examiner provided medical literature to support their opinion. 

Here, after review of all of the evidence, lay and medical, the Board finds that the evidence is against the claim of service connection for the Veteran's low back disability. 

The Board acknowledges that the December 2020 Board decision found the December 2016 and October 2019 VA medical opinions inadequate, and the June 2022 Board decision found the October 2021 and March 2022 VA medical opinions inadequate. Additionally, the Board finds the July 2009 private medical opinion inadequate for not providing a rationale for its conclusion that the Veteran is having secondary back pain from his collapsing flatfoot deformity. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("Without a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing.").

Significantly, the Board finds the most recent May and November 2024 VA medical opinions to be competent and credible, and as such, are entitled to significant probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). The opinions were rendered after reviewing the Veteran's VA medical records, medical literature, and the March 2024 Board Remand directives. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The May and November 2024 VA medical opinions specifically considered the March 2024 Board Remand directives which instructed the examiner to consider the July 2009 Report and the May 2016 Board hearing testimony. The Board finds the VA examiner's responses to the Board Remand directives sufficient. As such, the Board affords the
 were rendered after reviewing the Veteran's VA medical records, medical literature, and the March 2024 Board Remand directives. See Prejean v. West, 13 Vet. App. 444 (2000) (factors for assessing the probative value of a medical opinion include the examiner's access to the claims folder and the Veteran's history, and the thoroughness and detail of the opinion). The May and November 2024 VA medical opinions specifically considered the March 2024 Board Remand directives which instructed the examiner to consider the July 2009 Report and the May 2016 Board hearing testimony. The Board finds the VA examiner's responses to the Board Remand directives sufficient. As such, the Board affords the May and November 2024 VA medical opinions great probative value. Moreover, the evidence of record is devoid of any competent or credible medical evidence to counter the findings from the May and November 2024 VA medical opinions. As such, the evidence is not in approximate balance. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Veteran has stated that his low back disability was caused and aggravated by his service-connected disabilities and that his low back disability is related to service. The Board, however, cannot rely on the Veteran's general assertions as to a medical nexus to service because he is not shown to possess the type of medical expertise that would be necessary to opine regarding the etiology of his disability. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). There is no evidence that the Veteran has the medical education and training required to make competent clinical diagnoses. The Veteran's statements are outweighed by the probative VA addendum medical opinions. See King v. Shinseki, 700 F. 3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). As such, the Board finds the Veteran's statements probative with regard to establishing his current symptoms, but finds little probative value with regard to establishing service connection. 

There can be no doubt that the Veteran rendered honorable and faithful service for which the Board is grateful, and that he is sincere that service connection is warranted for his low back disability. However, the Board has carefully reviewed the record in depth and has been unable to identify a basis upon which service connection may be granted. 

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For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether entitlement to service connection for low back disability, is warranted. Rather, the evidence persuasively weighs against service connection. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), is therefore not for application. Lynch, 21 F.4th 776. Accordingly, the Veteran's claim is denied

 

 

H. SEESEL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Dourmashkin

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.