Citation Nr: 18132287
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-37 084
DATE:	September 6, 2018
ORDER
Service connection for a low back disability, claimed as secondary to a service connected left ankle disability, is granted.
FINDINGS OF FACT
1.  The Veteran has a diagnosis of low back pain with X-ray evidence of mild degenerative disc changes, and service connection for a left ankle disability has been in effect from May 1995.  
2.  The medical evidence as to whether the Veteran’s low back disability is the result of his service-connected left ankle disability is in relative equipoise. 
CONCLUSION OF LAW
The criteria for entitlement to service connection for a low back disability, claimed as secondary to a service connected left ankle disability, have been met.  38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Entitlement to service connection for a low back disability, claimed as secondary to a service connected left ankle disability.
The Veteran served on active duty in the Navy from June 1974 to June 1978 and from January 1990 to May 1995. This matter comes to the Board on appeal from a January 2012 rating decision.  See 38 C.F.R. § 3.156(b) (stating that new and material evidence received within the appeal period after a decision is considered as having been received in conjunction with the prior claim).
He contends that his low back disability was incurred due to his service connected left ankle disability.  He says that his left ankle disability has caused an altered gait, which adversely affected his back and caused the disability.
Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a).  Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown.  Allen v. Brown, 7 Vet. App. 439, 449 (1995); 38 C.F.R. § 3.310(b).  
In order to establish entitlement to secondary service connection, there must be 
(1) evidence of a current disability; (2) evidence of a service-connected disability; (3) medical evidence establishing a nexus between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
In this case, the medical evidence establishes that the Veteran has a current low back disability.  A January 2012 VA examination entered a diagnosis of low back pain and noted that arthritis had been documented in a magnetic resonance imaging study (MRI), which confirmed mild degenerative disc changes at L4 to L5.  
The record also shows that entitlement to service connection for the residuals of a right ankle fracture was granted in a November 1995 rating decision, effective from May 1995.  The current diagnosis is post-repair, left ankle fracture, with ligament laxity, and is evaluated as 20 percent disabling.  
Therefore, the only remaining question is whether the Veteran’s current back disability was incurred as a result of his service connected left ankle disability.  Opinions that address this question have been received from two medical professionals.  
The first opinion was authored by the VA nurse practitioner who conducted the January 2012 examination of the Veteran’s back.  She opined that the Veteran’s claimed disability was less likely than not proximately due to or the result of his service-connected disability.  Her rationale stated that the Veteran did not have an abnormal gait because he wore a half inch shoe lift.  The Veteran had reported minimal problems with his left ankle since his 2004 fusion.  Given the fact that the ankle injury occurred in 1990 and the back pain did not develop until 2011, it was the examiner’s opinion that the low back pain was less likely to be secondary to the service connected left ankle.  Instead, it was more likely to be secondary to his occupation.  Furthermore, she noted that only mild degenerative arthritis was demonstrated on the MRI, which she felt was due to the Veteran’s normal biology.  
The second opinion was received in a letter from P.E.M.,D.O. in October 2012.  This opinion letter noted that the Veteran has a history of a left ankle fracture.  
He now suffered from a shortened left leg, and his gait was very significantly affected by this as well as by the mechanical changes of his fused/deformed left ankle.  The doctor opined that the gait and shortened leg are significantly affecting the Veteran’s back and causing increased pain.  
After receipt of the October 2012 opinion, an addendum opinion from the January 2012 VA examiner was received in June 2013.  The examiner noted that she had reviewed the October 2012 letter.  She continued to opine that the Veteran’s claimed disability was less likely than not proximately due to or the result of his service connected disability.  As in her original opinion, she noted that when the Veteran had been seen on his most recent VA examination, he reported not having ankle pain since the 2004 fusion surgery.  She said that an abnormal gait had not been detected.  She noted that the Veteran worked as a truck driver, which was a known risk for lower back problems and strain.  Finally, there were no structural problems other than the degenerative changes which were consistent with the biology of aging and the Veteran’s work history.  
The Board finds that the two opinions of record are in relative equipoise.  
The private doctor opined that the Veteran’s low back disability is the result of the altered gait due to his service connected left ankle disability.  The VA examiner disagrees, and in support of her opinion she notes that an abnormal gait was not detected on the most recent VA examination.  However, September 2011 VA treatment records indicate the MRI that demonstrated degenerative changes of the spine was obtained in July 2011.  Private treatment records from October 2011 and November 2011 show that while the Veteran was undergoing treatment for his low back pain, an altered gait was noted on at least three occasions between October 11, 2011 and November 7, 2011.  Furthermore, it appears that it was not until a December 2011 VA podiatry consult before it was recommended that the Veteran wear orthotics due to his shortened left leg.  The VA examiner indicated that it was the Veteran’s use of orthotics that prevented an altered gait.  However, this evidence demonstrates that the Veteran did have an altered gait at the time he initially developed his low back disability.  
 
As the rationale of the VA opinions was based at least in part on the assumption that the Veteran did not have an altered gait, the probative value is lowered.  The result is that the positive and negative opinions equal in evidentiary value.  When this occurs, the benefit of the doubt is given to the Veteran.  The Board concludes that his low back disability was incurred due to his service connected left ankle disability, and entitlement to service connection is established. 
 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. L. Prichard, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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