Citation Nr: 18154151
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 12-01 633
DATE:	November 29, 2018
ORDER
Service connection for a low back disability is denied.
FINDINGS OF FACT
1.	The Veteran’s diagnosis of congenital spinal stenosis is a congenital defect and no superimposed lumbar spine disability related to service is demonstrated.
2.	The preponderance of the evidence indicates that other low back disability did not have its onset in active service, was not diagnosed within one year of discharge, was not proximately caused or aggravated by her service-connected cervical spine disability, and was not otherwise related to service.
CONCLUSION OF LAW 
The criteria for service connection for a low back disability have not been met.  38 U.S.C. 1110, 1112, 1113, 1116, 1131, 5107 (2012); 38 C.F.R. 3.303, 3.307, 3.309, 3.310 (2017) 

REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the United States Army from October 1979 to October 1984.
In August 2016, the Board issued a decision denying the service connection claim for a low back disability.  The Veteran appealed that decision to the United States Court of Appeals for Veterans’ Claims (Court).  By a May 2017 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board’s August 2016 decision in part and remanded the matter for further action consistent with the JMPR.  The Board subsequently remanded the claim for further evidentiary development in October 2017.
The Veteran has contended that her claimed low back disabilities stem from an in-service airborne training incident which caused an injury to her cervical spine, and for which she is service-connected for intervertebral disc syndrome (IVDS) of the cervical spine with degenerative joint disease (DJD).  She has also suggested that her low back disabilities are the result of multiple jumps from airborne training.  
Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) 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).
Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  
For purposes of establishing service connection, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  See 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304(b).  According to 38 C.F.R. § 3.304(b), the term “noted” denotes only such conditions that are recorded in examination reports.  
Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation concerning service connection.  38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510 (1996).  Nonetheless, the VA’s Office of General Counsel has concluded that service connection for a congenital disability may be awarded if it is shown that it was aggravated through a superimposed injury during active service.  If a superimposed disease or injury does occur, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90 (July 18, 1990) at para. 3.  
Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  
VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
The Veteran’s October 1979 service entrance examination is negative for any low back condition.  Her service treatment records (STRs) document that during an airborne operation in July 1982, the Veteran hit the side of a plane door, which resulted in an injury to her cervical spine.  See July 1982 Consultation Sheet; July 1982 Chronological Record of Medical Care.  She sought medical attention immediately following this incident.  At that time, the treatment providers observed that she had an abrasion on the left side of her neck, which appeared superficial in nature; tenderness over the left lateral aspect of the C2-C3, and attendant decrease in range of motion; and tenderness in her lower left ribs and costovertebral angle on the left.  An x-ray examination revealed no loss of cervical lordosis or fracture, but a possible compression of the C3.  In the end, the treatment provider noted an impression of paravertebral sprain of the cervical spine with significant muscle spasm and prescribed a soft collar.  As a result of this injury, she was given a temporary profile.  No notations regarding the Veteran’s low back were included in the treatment records regarding this incident.  
In May 1983, the Veteran complained of flank and low back pain.  She underwent urinalysis and testing for sexually transmitted disease.  She was diagnosed with a tubular infection.  There are no other complaints, symptoms, treatment, or diagnoses for a low back disability in the STRs.  
Post-service, several VA examinations have been conducted and VA medical opinions have been obtained.  Pertinent to the claim, the Veteran underwent examinations of the thoracolumbar spine in March 2010 and in February 2015, and a June 2013 neck/cervical spine VA examination.  In addition, the February 2015 VA examiner proffered an addendum medical opinion in March 2015 and another clarifying opinion was obtained in August 2018.  Further, there are several x-ray examinations and Magnetic Resonance Imaging (MRI) results of record.
The impression from a December 2005 x-ray was moderate paraspinal stenosis of the central and lateral side, which appeared to be of the congenital variety, and a bulge of the annulus at the L5-S1 level, accompanied by left L5-S1 spinal stenosis.  The Veteran stated to clinicians that she did not have a history of heavy lifting or low back strain but did injure her lower back during an automobile accident.  The Veteran also reported that a March 2006 MRI indicated two lumbar herniated discs, although the results were not provided to clinicians.  A June 2009 MRI indicated a diagnosis of obesity alongside the diagnoses of lumbar DDD, lumbar spondylosis, and lumbar radiculopathy; a 2009 VA plastic surgery treatment note recorded that the Veteran experienced chronic low back pain associated with large pendulous breasts; a July 2009 lumbar spine MRI indicated diffuse mild/moderate degenerative changes, most prominent with degenerative facet joint changes at L5-S1; and a July 2009 lumbar spine x-ray had negative results.
The March 2010 VA examination report provided a diagnosis of thoracolumbar scoliosis.  Additionally, the VA examiner acknowledged the claims file contained a diagnosis of chronic low back pain with degenerative disc disease (DDD) and possible herniated disk at the L5-S1.  In rendering a negative nexus opinion, the VA examiner neglected to address all diagnoses of record.  The VA examiner also failed to determine whether the low back diagnoses were caused by or otherwise related to the same in-service parachuting incident for which she is service-connected for the cervical spine disability.  Rather, the VA examiner only determined it was unrelated to the low back and flank pain documented in service, which was due to a vaginal infection.  She concluded that there was nothing in the evidence of record to suggest the in-service complaint of low back pain was attributable to a musculoskeletal origin. 
A March 2013 MRI demonstrated a stable mild disc bulge at L4-L5, slight interval improvement in mild disc bulge at L5-S1 with moderate central stenosis and moderate right foraminal narrowing.  A 2013 x-ray revealed mild to moderate DDD with associated anterolisthesis at L5-S1, unchanged from prior examination.
At the June 2013 neck/cervical VA examination, the diagnoses included “IVDS with radiculopathy of the left lower extremity C8-T1.”  Although the diagnosis itself indicated involvement of the “left lower extremity,” this diagnosis is noted as a diagnosis pertaining to the cervical spine and “C8-T1” denoted involvement of the lower radicular group of the upper extremity.  Moreover, all pertinent findings during the examination related to the upper extremities.  Nonetheless, the examiner did opine that the “IVDS with radiculopathy of the left lower extremity” was a progression of the prior diagnosis and primarily due to the traumatic repetitive multiple parachute jumps in service.  
Following a February 2015 VA examination, the examiner recorded diagnoses of degenerative arthritis and spinal stenosis with DJD, DDD, bulge at the L4-L5, and anterolisthesis at the L5-S1 of the thoracolumbar spine.  Based on the examination and a review of the claims file, the VA examiner concluded these conditions were less likely than not due to the Veteran’s service, which included approximately 38 parachute jumps.  In support, the VA examiner noted the first diagnosis pertaining to the lumbar spine came in 2005.  According to the Veteran herself, she did not seek treatment for any lumbar spine condition post-separation until she began seeking treatment from the VA.  Further, there was no current medical literature showing that lumbar spinal stenosis with DJD, DDD, bulge, and anterolisthesis was the proximate cause of or source of aggravation of a cervical spine condition.
Instead, the VA examiner stated that the claimed low back disabilities were most likely due to a strong genetic disposition to develop such conditions, natural aging, and escalation of her body mass index (BMI) with macromastia.  In support, the VA examiner pointed to her increased in BMI in 1991, 2008, and at the time of examination; 21, 31, and 36 respectively.  However, the VA examiner did not explain the relationship between the increasing BMI and macromastia and the claimed low back disabilities.  The VA examiner also did not expressly identify what her genetic predispositions were or reference any supporting evidence of record.  See June 2009 VA MRI and plastic surgery treatment note discussed above.
Further, the VA examiner opined that the claimed condition was less likely than not proximately due to the Veteran’s service-connected cervical spine disability because it clearly and unmistakably existed prior to service.  See February 2015 VA Examination Report; March 2015 VA Addendum Medical Opinion.  As another matter, the VA examiner found it was not aggravated beyond its natural progression by her service.  In rendering this opinion, the VA examiner did not clarify which diagnosis existed prior to service, distinguish between whether it was a congenital defect or disease for VA compensation purposes, nor provided supporting rationale for this position.  However, the Board notes that the VA examiner did acknowledge diagnostic tests conducted in 2005, 2011, and 2013, and noted that the 2005 x-ray indicated congenital spinal stenosis.  
Pursuant to a Court of Appeals for Veterans Claims (Court) order granting a Joint Motion for Partial Remand vacating the Board’s August 2016 decision denying service connection for a low back disability, a clarifying opinion was obtained in August 2018, which discussed each diagnosis of record.
The clinician determined that the Veteran’s diagnosis of congenital spinal stenosis was that of a congenital defect that is fixed, and that it clearly and unmistakably pre-existed military service.  Her rationale was that there was no objective evidence to support a disability due to a disease or injury in service, to include the July 1982 neck injury, that was superimposed on the congenital defect.  The objective evidence supported that congenital spinal stenosis remained dormant and asymptomatic until about 2003, 20 years after separation.  She further noted that it was neither caused by nor aggravated beyond natural progression due to service.
The clinician stated that the March 2010 diagnosis of thoracolumbar scoliosis was actually an acute lumbar strain which had resolved and most likely temporarily altered the thoracic-lumbar spine alignment.  Her rationale was that there were numerous subsequent images of the lumbar spine silent as to chronic scoliosis.  Additionally, an MRI conducted prior to the March 2010 examination did not indicate scoliosis. 
The clinician stated that the Veteran’s diagnoses of DDD (anterolisthesis at L5-S1, facet arthropathy, DDD and disc bulge at L5-S1) were acquired conditions which were caused by aging and axial load-bearing.  Her rationale was that these conditions were first diagnosed around 2003, nearly 20 years after separation from service, and that the preponderance of medical evidence and research supported that natural age in this case was the risk factor for developing lumbar spine disease with the highest predictive value.  She found no study to support the July 1982 neck injury as a proximate cause of acquired degenerative lumbar spine disease.  The clinician determined that the Veteran’s DDD diagnoses (anterolisthesis at L5-S1, facet arthropathy, DDD and disc bulge at L5-S1) were less likely as not caused by or otherwise related to her active service, to include generally her airborne training, as well as the July 1982 incident.  
The clinician instead found that the Veteran’s DDD diagnoses were most likely due to genetic disposition, the aging process, escalation of BMI, or macromastia.  She noted that lumbar degenerative disease (also referred to as spondylosis and arthritis) is present in 27-37% of the asymptomatic population, and that in the United States, more than 80% of individuals older than 40 years had lumbar spondylosis, increasing from 3% of individuals aged 20-29 years.  She continued that large studies of osteoarthritis have long recognized the aging process to be the strongest risk factor for bony degeneration, particularly within the spine.  An extensive autopsy study from 1926 reported evidence of spondylitis deformans to increase in a linear fashion from 0% to 72% between the ages of 39 and 70 years.  A subsequent autopsy study similarly noted an increase in disc degeneration from 16% at age 20 to about 98% at age 70 based on macroscopic disc degeneration grades of 600 specimens.  Other studies corroborated this finding.  
The clinician conceded that the associations between age and lumbar degenerative disease are nevertheless imperfect, with several studies indicating variability.  Such studies suggested the influence of other contributing factors, such as the impact of activity, occupation, BMI, daily spine loading, and whole-body vibration, which increased the likelihood and severity of spondylosis.  While these correlations exist, she noted that a study following progressive radiographic changes in lumbar DDD did not find significant associations with the extent of physical activity, noting only age, back pain, and associated hip osteoarthritis to be predictive of DDD and osteophyte changes.  The clinician also stated that genetic factors would likely influence the formation of osteophytes and disc degeneration, pointing to a study which proposed that 50% of the variability found in osteoarthritis could be attributed to heritable factors.
Regarding the June 2013 VA examiner’s conclusion that IVDS with radiculopathy of the left lower extremity was a progression of the prior diagnosis and primarily due to the traumatic repetitive multiple parachute jumps in service, the clinician determined that this was a typographical error, because the June 2013 examiner further described this at C8-T1, which involves only the upper extremity.  She noted that this was clear and unmistakable evidence that the word “upper” was intended.  She further stated that the finding of “no change in diagnosis” in the June 2013 examination report was also in error, as the Veteran was diagnosed with lumbar degenerative spine disease at the time of the examination.  The clinician specified that the Board should not consider that report as evidence that the lumbar spine or lower extremity was being reported as part and parcel or a progression of a service-connected neck condition.  
Regarding the secondary service connection claim, the clinician found that the Veteran’s lumbar spine diagnoses were not caused or aggravated by the service-connected cervical spine disability.  She explained that no structural disease or defect of the cervical spine is clinically expected or known to migrate, spread, or propagate toward the lumbar area – human physiology does not support that pathology.  She noted that it was understandable for lay persons to reason logically that the spine is all connected and pain in the upper spine is connected to pain in the lower spine; however, pathologically this is not the case with respect to stenosis, strain, spasm, degenerative disease, or any other relevant diagnosis in this case.  The clinician also determined that medical literature did not support that congenital, pre-existing spinal stenosis could expect to be aggravated by a July 1982 neck injury when onset of symptoms presented 20 years later.   
The Board notes at the outset that service connection on a presumptive basis is not warranted.  Although arthritis (DJD) is a listed chronic disease under 38 C.F.R. § 3.309, the preponderance of the evidence is against finding that the Veteran had a diagnosis of such in service or that manifested to a degree of 10 percent or more within one year of separation from service.  38 C.F.R. § 3.307(a)(3).  The Veteran did not report complaints or symptoms regarding her low back in service, other than the May 1983 complaint of flank and back pain which was due to a tubular infection, and not to mechanical back pain.  The report regarding the July 1982 airborne training incident detailed complaints regarding the Veteran’s cervical spine with no indication of injury to her lumbar spine.  The first diagnosis of record was approximately 20 years after separation.  Although she has reported pain and symptoms persisting since service, there is no other evidence of manifestations or symptoms associated with the low back in service (with the exception of the unrelated tubular infection).  Accordingly, service connection is not warranted on a presumptive basis.
Turning to direct service connection, the Board finds that the August 2018 VA opinion adequately reconciles the differing diagnoses and opinions of record, and that it is well-reasoned, detailed, consistent with other evidence of record, and included consideration of the Veteran’s pertinent medical history.  Accordingly, the Board attaches significant probative value to the opinion.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  
The August 2018 clinician determined that the Veteran’s diagnosis of congenital spinal stenosis was a congenital defect.  She further found that this defect was not subject to or aggravated by a superimposed disease or injury during service which resulted in additional disability.  She supported this finding by pointing to the medical evidence of record which indicated no injury to the low back in service.  Further, it was noted that the objective evidence supported that congenital spinal stenosis remained dormant and asymptomatic until about 2003, 20 years after separation.  Thus, given no evidence of complaints, symptoms, treatment, or diagnosis in service of a low back condition and the long gap in time to when the condition became symptomatic, the Board finds the clinician’s conclusions to be supported by the evidence of record.  
The clinician’s determination that the March 2010 diagnosis of thoracolumbar scoliosis was actually an acute lumbar strain which had resolved and most likely temporarily altered the thoracic-lumbar spine alignment is supported by the many other images of record which did not indicate scoliosis.  There are no other diagnoses of scoliosis in the claims file.  The Board finds that the divergent conclusion of that examination has been adequately explained and supported by an appropriate rationale.  
The August 2018 clinician’s finding that Veteran’s various DDD diagnoses were most likely due to genetic disposition, the aging process, escalation of BMI, or macromastia, rather than due to her in-service activities, to include airborne training and the July 1982 incident, is supported by the medical evidence of record.  Although some identified risk factors for developing DDD included daily spine loading and whole-body vibration, which could be descriptions of the effects of airborne training, the clinician reviewed the entirety of the Veteran’s medical history and determined that the more likely cause of her DDD diagnoses was the aging process, which she supported with clinical evidence from medical literature.  She also pointed to research which cited BMI and genetic heritage as contributing factors to disc degeneration; the evidence of record indicated the Veteran had an increasing BMI and the February 2015 VA examiner also found that both high BMI and genetic factors were more likely the cause of the Veteran’s low back disability.  Given the totality of the evidence of record, the Board finds highly probative the August 2018 clinician’s determination that the Veteran’s various DDD diagnoses were more likely due to factors such as the aging process, genetic disposition, and escalation of BMI, rather than due to the July 1982 incident, after which no low back symptoms were reported, and rather than due to the airborne training parachute jumps which occurred approximately 20 years prior to the onset of any recorded symptoms.  
As to the clinician’s explanation regarding the June 2013 VA examiner’s notation of IVDS with radiculopathy of the left lower extremity, the Board finds that the unclear meaning of the examiner’s report has been adequately explored.  When asked to identify the nerve roots involved with the Veteran’s cervical spine disability, the examiner clearly marked a box next to “involvement of C8/T1 nerve roots (lower radicular group).”  The examiner did not evaluate the Veteran’s thoracolumbar spine and indicated that there was not a musculoskeletal condition of the thoracolumbar spine.  There was no clinical evaluation whatsoever of the lower extremities.  Each notation regarding “IVDS with radiculopathy of the left lower extremity” was accompanied by the fact that the involved nerve roots were C8-T1, which pertain to the lower radicular group regarding the upper extremities.  See UpToDate, “Clinical features and diagnosis of cervical radiculopathy,” Robinson, Jenice and Kothari, Milind, last updated July 11, 2018.  The August 2018 clinician stated specifically that C8-T1 involves only the upper extremities.  Accordingly, her finding that the notation of “lower” was not meant to pertain to the lower extremities, but instead to the upper extremities, is highly plausible.  The fact that the examiner identified nerve root involvement that only pertains to the upper extremities is strong evidence that “lower left extremity” was indeed a typographical error.  Given the fact that there was no evaluation of the low back or the lower extremities at the time, the Board concludes that the preponderance of the evidence is against a finding that the June 2013 VA examiner intended to convey that lower left extremity radiculopathy resulted from the Veteran’s in-service airborne training.  
Based on the foregoing, the Board concludes that direct service connection is not warranted.  The Veteran has a diagnosis of a congenital defect that was not aggravated by service by a superimposed disease or injury.  The objective medical opinions of record found it more likely than not that the etiology of the Veteran’s DDD diagnoses were unrelated to her service.  The only medical opinion of record which appeared to suggest a connection between lower extremity radiculopathy and the in-service airborne training clearly only evaluated the service-connected cervical spine and radicular involvement of the upper extremities, and is not persuasive as to the low back disability claim.  Accordingly, service connection on a direct basis is not supported.
Regarding the secondary service connection claim, the August 2018 VA clinician found that the Veteran’s lumbar spine diagnoses were not caused or aggravated by the service-connected cervical spine disability, explaining that the understanding of human physiology would not support that a structural disease or defect of the cervical spine would migrate, spread, or propagate toward the lumbar area.  She specifically stated that stenosis, strain, spasm, or degenerative disease in the upper spine would not be pathologically connected to such conditions in the lower spine.  Accordingly, the Board finds that service connection on a secondary basis is not warranted.  


The Board finds that the preponderance of the evidence is against granting service connection.  The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57.  
 
MICHAEL E. KILCOYNE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Rachel E. Jensen, Associate 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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