Citation Nr: 1736577	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  08-38 908	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for a low back disability secondary to service-connected pes planus.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Saindon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from December 1953 to December 1956.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.  

The Veteran testified before the undersigned Veterans Law Judge at a video conference Board hearing in August 2009.  The transcript is of record.  

The Board previously denied the claim in March 2014.  The United States Court of Appeals for Veterans Claims (Court) vacated that decision in October 2014, but ruled that the direct and presumptive service connection aspects of the claim had been waived.  The Board then remanded the claim in December 2014.  After being returned, the Board again denied the claim in June 2016.  In January 2017 the Court granted a joint motion for remand (JMR) vacating the decision and remanding for further development.  The Board remanded the claim in March 2017.  The claim has now returned for adjudication

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The Veteran's service-connected pes planus did not cause or aggravate his low back disability.


CONCLUSION OF LAW

The criteria for entitlement to service connection for a low back disability secondary to service-connected pes planus have not been met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  Although the Board has an obligation to provide the reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the Veteran or on his behalf.  Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.
 
The Board must consider the competency, credibility, and weight of all evidence, including the medical evidence, to determine its probative value.  The Board must then account for evidence that it finds persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the claimant.  Timberlake v. Gober, 14 Vet. App. 122, 129 (2000).  Equal weight is not accorded to each piece of evidence contained in the record and every item of evidence does not have the same probative value.  If the evidence weighs in favor of the Veteran or is in relative equipoise, the Veteran will prevail.  On the other hand, if the preponderance of the evidence is against the Veteran, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran's representative has raised the issue of whether the supplemental VA opinion was adequate.  This issue will be discussed below.  Neither the Veteran nor his representative raised any other issues with the duty to notify or duty to assist most recently with the Court or on remand with the Board.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service Connection

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131.  Generally, the evidence must show: (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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  Furthermore, service connection may be established on a secondary basis for a disability which is aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

The Veteran's service treatment records (STRs) indicated that the Veteran was diagnosed with pes planus in February 1956 and that he was provided orthopedic inserts in August 1956.  The STRs also indicated that he underwent a closed reduction for a right third metatarsal fracture.

A VA examination in May 1986 noted that the Veteran's carriage, gait, and posture were normal.  His pes planus was found to be mild to minimal.

VA treatment records from 1999 noted that the Veteran complained of lower back pain.  A March 2000 report noted that X-ray studies revealed mild curvature of the spine and degenerative changes.  The Veteran was diagnosed with degenerative disc disease in April 2004.  

Treatment records from May 2005 noted complaints of back pain, but that there was no evidence of a gait abnormality.  A June 2005 report noted that the Veteran was using a lift for the left heel without trouble and that his back pain continued at a baseline.

VA examination in August 2006 found that the Veteran walked with a normal gait with shoes and inserts and that without inserts he had a mildly antalgic gait.  There was no evidence of abnormal weight bearing.  X-ray studies revealed that the arches were mildly flattened and further revealed post-surgical changes from bunion surgery that was unrelated to pes planus.  The examiner diagnosed mild pes planus that was managed well with inserts.

A September 2007 private opinion from the Veteran's chiropractor, Dr. D.L.C., stated that he had been seeing the Veteran for more than seven years.  He noted that he could not confirm a diagnosis of pes planus as he wasn't a podiatrist or orthopedic specialist, but that the Veteran had worn arch supports off and on for the entire period.  Based on the arch supports, the chiropractor concluded that "I believe that this is one of the underlying reasons for the problems in [the Veteran's] back."  The chiropractor also noted that the spinal arthritis was long standing and progressive, which he viewed as consistent with it being related to the arches.  In conclusion the chiropractor wrote that "I feel that this has contributed greatly to [the Veteran's] back condition."  



In September 2007 the Veteran's pastor wrote that the Veteran had demonstrated back and leg pain since 1964.  In October 2007 another pastor wrote that he had known the Veteran since 1964 and that the Veteran had complained over the years about his back and leg pain.  

The Veteran was afforded another VA examination in March 2008.  The examiner diagnosed severe lumbar spondylosis with degenerative disk disease and scoliosis and planovalgus flat feet post bilateral bunion surgery.  The examiner noted that the Veteran's history, examination and X-rays demonstrated that he had a severe progressive degenerative spondylotic condition involving the lower lumbar area of the back.  The examiner opined that there was no medical justification or reason that could be provided which would tie the Veteran's lumbar disability to his feet.  The low back disorder was found to be a progressive degenerative condition related to normal aging and not to trauma or foot disorder.

The Veteran testified in August 2009 that an internet article supported the nexus opinion of the Veteran's chiropractor.  

The Veteran was afforded another VA examination in July 2010.  The Veteran reported that he had worked at a fish farm and for twenty years as a rice dryer.  He did not use any braces or supports and had no external support for walking.  MRI imaging from 2006 revealed advanced multilevel lumbar degenerative disc disease and facet disease.  The examiner opined that the Veteran's pes planus had not aggravated his back and that his feet had not caused permanent worsening of the underlying condition as contrasted to temporary or intermittent flare-ups that would return to baseline level.  The examiner noted that he disagreed with the opinion of the Veteran's chiropractor.

A May 2015 VA medical opinion concluded that the Veteran's lower back disability was less likely proximately due to or aggravated by his service-connected bilateral pes planus disability.  The examiner reasoned that the Veteran's back disability was manifested by pain that was much too diffuse to be secondary to flat feet and that the Veteran's flat feet were not of a degree that would transmit or cause degenerative disc disease and scoliosis.

A May 2017 supplemental opinion opined that the Veteran's back disability could not be said to have been caused by his pes planus to a 50 percent confidence level.  The examiner explained that the Veteran's pes planus had not caused sufficient alteration in gait, abnormal body mechanics, or excess stress to have caused the condition.  Likewise the examiner opined that it could not be said that the Veteran's back condition worsened beyond its normal progression because of the pes planus.  The examiner reasoned that there was insufficient clinical evidence to make this connection.  In particular, the Veteran's gait, body mechanics and stress were not sufficiently altered by the pes planus to have caused the back condition.  

A. Sufficiency of the Examination

The January 2017 JMR stated that the "May 2015 VA examination was inadequate for rating purposes because the examiner provided inadequate rationale for his opinion as to secondary service connection."  Remand was warranted "for a new or clarifying medical opinion with supporting rationale as to whether Appellant's claimed low back disability was either caused or aggravated beyond its natural progression by [Veteran's] service-connected pes planus."

The Veteran's representative wrote in June 2017 to state that the "VA examiner did not adequately explain why the objective evidence of record was not sufficient to establish a link between the Veteran's [pes-planus] and his back condition. . . . The Veteran's [pes-planus] has caused an altered gait. . . . He required arch supports for his foot condition, which further impacted his gait. . . . In light of these symptoms, it is likely that his back condition was affected and aggravated by the symptoms resulting from his [pes-planus]."  The representative further took issue with the examiner's rationale stating that the "opinion [was] wholly unspecific to the Veteran's symptoms and medical records, and does not explain why the evidence of altered gait, abnormal weight bearing, and need for arch supports was not sufficiently objective. . . . [he] did not even discuss the symptoms or evidence relevant to his conclusion."  

Contrary to the assertions made by the Veteran's representative, the 2017 examiner did discuss the Veteran's specific gait, body mechanics (which include weight bearing) and the stresses that his feet put on his back.  The discussion was brief, but the examiner concluded that the level of gait change, mechanical change, and stresses were not sufficiently severe in the Veteran's case to have caused or aggravated the Veteran's back condition beyond its natural progression.  As the examiner considered the biomechanical impact of the Veteran's foot disability had on the Veteran's back and provided a rationale for his findings, the examination is adequate, if also a bit minimalistic.  

B. Merits

The primary evidence in the Veteran's favor is the September 2007 chiropractic opinion letter.  The chiropractor, however, admitted that he could not confirm pes planus, and instead based his opinion on the Veteran's wearing of arch support footwear. The chiropractor based his opinion on the general proposition that pes planus that requires arch support will cause or aggravate a lower back condition.  In other words, the chiropractor lacked the overall medical expertise to render an opinion beyond supposition.  The examiner did not consider the Veteran's specific gait or body mechanics or address the findings that the Veteran's gait had been normal in examinations through at least 2005.  

The main evidence against service connection is the series of VA examinations and opinions that culminated in the 2017 opinion.  The examiner in 2017 implicitly acknowledged that a foot condition could cause or aggravate a back condition, but explained that in the Veteran's specific case, the Veteran's foot disability was not severe enough to cause significant gait or other biomechanical dysfunction.  Thus the examiner concluded that, as the foot disability did not cause significant gait or other biomechanical dysfunction, it could not have caused or worsened the back disability.  

Considering these two opinions, the VA examiner's opinion is weighed more heavily.  The VA examiner considered the Veteran's actual gait and biomechanical function and decided that in the Veteran's case they were insufficiently dysfunctional to cause the low back disability.  The chiropractor, on the other hand, considered the Veteran's use of arch supports and made a general conclusion about people who use arch supports without considering the actual effect of the Veteran's pes planus on his back.  Because the VA examiner more directly applied his medical knowledge to the facts of the Veteran's case, his opinion is entitled to greater weight.  See, Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (adopting as a guiding factor the requirement that "the expert witness has applied the principles and methods reliably to the facts of the case.").  

The evidence further indicated that the Veteran did not have a gait, carriage or posture defect until at least 2005.  Yet the lay statements from the Veteran's pastors indicated that the Veteran had back pain as early as 1964.  This further weighs against service connection as Veteran had back problems at a time when he did not have the gait, carriage or posture defects now alleged to have caused the Veteran's back problems.

In addition, the prior VA examiners have consistently stated that the Veteran's back condition was not caused or aggravated by his pes planus.  Although the rationale given by these examiners was inadequate, the ultimate conclusions still have some limited relevance.  However, the weight of the evidence is the same even if the prior VA examinations are not taken into consideration.  

Consideration has also been given to the Veteran's assertion that his low back disability has been caused or aggravated by his pes planus.  However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the question of whether the Veteran's low back disability was caused or aggravated by his pes planus falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Degenerative disc disease is not the types of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Accordingly, the Veteran's statements do not alter the weight of the evidence.

As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53.  Service connection for a low back disability secondary to service-connected pes planus must therefore be denied.


ORDER

Entitlement to service connection for a low back disability secondary to service-connected pes planus is denied.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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