Citation Nr: 0525874 Decision Date: 09/21/05 Archive Date: 09/29/05 DOCKET NO. 02-04 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a low back disability, to included secondary service connection as a result of the veteran's service-connected right knee disability. 2. Entitlement to an effective date prior to April 22, 2004 for a 20 percent evaluation of right knee traumatic degenerative joint disease associated with status post lateral/medial meniscus tear. 3. Entitlement to an effective date prior to April 22, 2004 for a 20 percent evaluation of left knee traumatic degenerative joint disease associated with status post lateral/medial meniscus tear. 4. Entitlement to an effective date prior to April 22, 2004 for a total disability evaluation due to individual unemployability resulting from the veteran's service- connected disabilities. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and Dr. C.N.B. ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from February 1979 to March 1982. This matter comes before the Board of Veterans' Appeals (Board) from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri. In this decision, the RO denied entitlement to service connection for a low back disability, to include secondary service connection resulting from the veteran's right knee disability. The Board initially denied this claim in a rating decision issued in November 2002. However, the U. S. Court of Appeals for Veterans Claims (Court) subsequently vacated that decision and remanded the case to the Board. In May 2004, the Board remanded this claim to the RO for development of the evidence. It has now returned for appellate consideration. During the pendency of this appeal, the RO issued a rating decision in September 2004 that granted increased evaluations for the veteran's left and right knee traumatic degenerative joint disease associated with status post lateral/medial meniscus tear. Both disabilities were awarded 20 percent evaluations effective from April 22, 2004. The veteran was also granted a total disability evaluation based on individual unemployability (TDIU) arising from his service- connected disorders. This was granted an effective dated from April 22, 2004. The veteran appealed the effective date of these awards. The issues of entitlement to an effective date prior to April 22, 2004 for the evaluations of the bilateral knee disability and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT The evidence establishes that there is a causal/etiological relationship between the veteran's in-service low back injury (to include his service-connected right knee disability), and his current degenerative disc disease of the lumbar spine. CONCLUSION OF LAW Degenerative disc disease of the lumbar spine was incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 1991 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA All relevant facts regarding the issue of service connection for a low back disability have been properly developed and no further assistance to the appellant is required in order to comply with the duty to notify and assist. A thorough review of the claims file reveals that the development conducted by VA in this case fully meets the requirements of 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In any event, based on the completely favorable decision discussed below, the Board finds that any failure in VA's duty to notify and assist the appellant regarding his claim is harmless. See Bernard v. Brown, 4 Vet. App. 384 (1993). New and Material Evidence A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New and material evidence is evidence not previously submitted to VA decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (Effective prior to August 29, 2001); see 66 Fed. Reg. 45620 (2001) (A new regulatory definition of new and material evidence became effective on August 29, 2001). For the limited purpose of determining whether to reopen a claim, the credibility of the evidence is to be presumed; however, this presumption no longer applies in the adjudication that follows reopening. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The veteran filed his current claim for entitlement to service connection for a low back disability in February 2001. A review of the claims file reveals that the issue of service connection for a low back disability (to include secondary service connection) was previously denied by a decision of the RO issued in January 1998. The evidence reviewed at that time included the veteran's service and VA medical records. Since this decision, VA has obtained multiple medical opinions discussing the nature and etiology of the veteran's low back disability. The evidence received since January 1998 is new and material, as it was not before the VA adjudicator at that time and it includes medical evidence addressing the nature and etiology of the low back disability. This evidence is neither cumulative nor redundant of any evidence obtained prior to January 1998. Finally, this evidence is so significant that it must be considered in order to fairly decide the merits of the claim. The Board finds that this issue must be reopened and adjudicated on its merits; therefore, the Board will now turn to the merits of the case. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303 are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Finally, a disability that is proximately due to, or the result of, a service connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). The veteran essentially contends that his degenerative disc disease of the lumbar spine was caused by an in-service injury or, in the alternative, was caused or aggravated beyond its natural progression by his service-connected knee disabilities. See Allen v. Brown, 7 Vet. App. 439, 448-49 (1995). The evidence for consideration includes the veteran's service medical records. His military entrance examination in January 1979 indicated that the veteran had denied any prior medical history of recurrent back pain. On examination, his spine and musculoskeletal system were found normal. In April 1980, the veteran complained of upper back pain. A military outpatient record dated in August 1981 noted a "Chief Complaint" of stomach pain. The veteran reported that he had reached down to pick up something and then fell backwards landing on his back. He also reported a separate fall three days before against a railing. He complained of stomach and "deep bone" pain. He also complained of chills, nausea, and that food made him sick. Examination of the back revealed costovertebral angle tenderness. The assessments were probable urinary tract infection and viral infection. Outpatient record in early November 1981 noted that on examination the veteran had pain in the midsection ("thoracic area") of his back. The veteran could not bend over 20 degrees or put his hand over his head. There was some edema in the "area of pain." The assessment was a pulled muscle. The next day he continued to complain of back pain in the thoracic area. On examination, he still had limitation of motion, but there was no edema present. The assessment of a pulled muscle was again given. In mid- November 1981, the veteran complained of back pain that had existed for the past month and a half. He claimed that this pain radiated down into his leg and made him "cramp up." On examination, he had pain in the lumbar area of the back and could not flex over 30 degrees. There was also edema present in the back. The assessment was back pain. In late November 1981, the veteran reportedly complained of off and on low back pain for the past ten days. However, he acknowledged that he had recently passed a military physical training test. On examination, the veteran's back was tender to even light touch. There was no muscle spasm, straight leg raises were negative, and deep tendon reflexes were present. He walked without a limp. The assessment was a history of low back pain "(Doubt)." The veteran was given a military separation examination in September 1981. On examination, his spine and musculoskeletal system were reported to be normal. VA medical records dated following separation from service do not document or record any complaints of low back pain until the mid-1990s. An outpatient treatment record dated in September 1994 shows the veteran was seen for complaints of severe low back pain. At that time the veteran reported that he worked in a labor job moving 90-pound bags, approximately 500 bags per day, and that he did okay until approximately two weeks prior when he awoke with severe low back pain. The assessment was a probable herniated disc. VA hospital records pertaining to an admission in May 1995 show the veteran underwent a right S1 hemilaminectomy and diskectomy. A record dated in April 1997 shows the veteran reported that in the past several months his back had become as symptomatic as it had ever been, and that the pain was as severe as it was prior to his back surgery in May 1995. A report of an magnetic resonance image (MRI) of the lumbar spine concluded with an impression of degenerative disc disease at L5 - S1 and postoperative changes at that level as well. No herniated disc or spinal stenosis was seen. A report of a VA examination performed in March 2001 shows the veteran reported that his last job as a dock foreman ended in 1994 because he was unable to lift secondary to pain in his back and his knees. The veteran indicated that his back became a problem particularly in 1994. Following the examination the pertinent diagnosis was arthritis of the lumbosacral spine, more likely than not related to the derangement of the right knee. In June 2001 the RO requested an additional medical opinion concerning the etiology of the veteran's back disability by a board of certified orthopedists. The memorandum indicated that the examiner who performed the March 2001 examination did not provide any reasoning or rationale for the conclusion that the veteran's lumbar spine arthritis was related to the service-connected right knee disorder. A report of a VA file review performed in August 2001 by an orthopedist reflects that the veteran's claims file identified a long-standing problem with the right knee. The examiner summarized treatment and procedures pertaining to the right knee. It was also noted that the history available from the claims file indicated a herniated disc from a job- related injury in 1994 and subsequent surgery. The pertinent diagnosis following the file review was lumbar laminectomy at L5-S1 with MRI evidence of degenerative disc disease. The examiner commented that the disc surgery with degenerative disc disease could produce back pain with no relationship at all necessary with the knee. The examiner found nothing in the medical record to suggest a relationship between the veteran's service-connected right knee with the low back. He indicated that the back was secondary to a job-related injury that led to the lumbar laminectomy and could be productive of post-laminectomy syndrome and pain. He concluded that it was not likely that the veteran's right knee disorder was in any way related to the complaints regarding the back. The orthopedist concluded that the examiner who performed the March 2001 examination provided no explanation or rationale to explain a relationship between the right knee and back. The veteran was afforded a VA general medical examination in September 2004. He reported injuring his low back when he fell in 1981. He acknowledged that at that time X-ray of the lumbar spine was found to be normal. However, he claimed that since this injury his low back had been chronically painful. The diagnoses included degenerative disc disease of the lumbosacral spine. The VA orthopedist that prepared the August 2001 report again examined the veteran in November 2004. The examiner noted a similar history and review of the treatment records. The veteran attributed his back pain and injury to his inability to bend his knees in order to facilitate lifting, due to his service-connected right knee disability. The diagnoses included degenerative disc disease of the lumbar spine at the L5-S1 level, with prior lumbar laminectomy for a herniated disc. The examiner commented that the veteran had received two post-service work related injuries to his back, which eventually resulted in surgery. He also noted that radiologic studies of the lumbosacral spine did not reveal any evidence of degenerative disc disease until his laminectomy surgery in the mid-1990s. The examiner commented: The veteran's current back symptomatology is due to the degenerative disk disease, which has developed as a result of the veteran's back surgery brought on by at least one or possibly two work-related injuries which are noted in the history...The veteran's...back injuries, which were noted in the service medical records, did not require any medical attention until the work-related injuries and we have only the veteran's subjective history to indicate that he was having back pain, although this back pain was non-disabling and did not prevent him from work until his work-related injuries. The veteran's service connected right knee disorder did not cause his need for back surgery and did not cause the degenerative disk disease, as we now see. Based on these reasons, the VA orthopedist opined that it was not likely that the veteran's degenerative disc disease of the lumbar spine was related to his right knee disorder, nor to the 1981 in-service back injury. In April 2004, a private neuroradiologist (Dr. C.N.B.) prepared a medical opinion. He noted that this opinion was based on a review of the veteran's medical records, to include his service medical records. In his report, the physician specifically highlighted service treatment records dated from August to November 1981 that documented treatment of back complaints. Dr. C.N.B. felt that the August 1981 back injury caused the veteran to present several times with recurrent symptoms. He felt that the military examiner's comment in late November 1981 about a doubtful assessment for low back pain was not well founded based on the veteran's four prior visits for back pain. He theorized that the military examiner of late November 1981 must not have reviewed the prior outpatient records. In addition, its was noted that the military examiner, even though he indicated a doubtful assessment, still recommended treatment appropriate for back pain and spasm. Dr. C.N.B. commented: This [veteran] clearly had a fall onto his spine in-service in 1981 and it is well known that patient's with injuries to their spine often damage their spine ligaments and once these ligaments are damaged the patient will experience advanced degenerative arthritis...It is my opinion that this patient likely damaged his spinal ligaments during his service time and that these damaged ligaments made him susceptible to future injuries to his spine due to the fact that the spine and ligament complexes were in a weakened state. The [veteran] had a work related injury to his spine in 1994 which he likely would not have had if he did not have his pre-existing service acquired spine and knee injury. His service connected knee injury caused him to lift objects improperly, as noted by [the VA examiner in March 2001] and it is my opinion the [veteran's] improper lifting technique due to his service acquired knee problem combined with his already weakened spine (susceptible) resulted in his ruptured disc. Dr. C.N.B. cited certain medical literature in support of his opinion. He also noted his disagreement with the VA orthopedist opinion of August 2001 on the grounds that it was incomplete, did not contain all of the veteran's pertinent medical history, did not contain the appropriate rational, and was not supported by references to the medical literature. The VA orthopedist responded in January 2005 to Dr. C.N.B.'s opinion. He noted that Dr. C.N.B. was a radiologist and implied that this specialty made him unqualified to render opinions on orthopedic disabilities. He also noted that Dr. C.N.B. had not actually examined the veteran. The VA orthopedist questioned the credentials of the curriculum vitae (CV) by referring to the fact that Dr. C.N.B. was not the "primary author" of many of the publications he cited. The VA orthopedist felt that Dr. C.N.B.'s opinion that the veteran damaged the ligaments of his back during military service was conjecture and his theory was not supported by the medical literature. He also noted that the medical literature cited by the private physician to support this opinion was outdated and cited out of context, as the literature was referring to an injury more severe (subluxation) then that noted in the veteran's service records. The orthopedist also questioned Dr. C.N.B.'s opinion that the right knee contributed to the veteran's back injury. He noted that the private physician had not been aware of the veteran's post-service work injury in 1986. Also, the orthopedist reported that current research identified a "proper lifting technique to protect the spine requires increased abdominal compression by proper breathing and proper muscle contracture in the abdomen. This protects the back and the knees do not." The orthopedist also noted that the VA opinion of March 2001 was prepared by a nurse practitioner and not an orthopedist. The orthopedist commented: Rather as the Kirkaldy-Willis [research article] demonstrates that micro injuries to the disc itself usually set in process progressive changes in the intervertebral disc. [In the veteran's case] This would have started in 1986 and then with subsequent injury in 1995 led to the herniated disc. While there is an association between injuries of the spine and later arthritis, [Dr. C.N.B.] reference is outdated and not authoritative and does not take into account the fact that the service-related 1981 injuries were not severe ligament tears and subluxation. ...in addition Kirkaldy-Willis' article there are references [by other researchers], which discuss the fact that imaging studies even in the young show evidence of age-related change even without injury and without symptoms. The veteran did have a knee injury. It is the veteran's own statement that abnormal lifting technique led to his spine injury. I disagree with that. The veteran's statement is self-serving and subjective. The veteran had a work- related injury in 1986 from which he never recovered... The VA orthopedist concluded that the post-service back surgery at the L5-S1 led to the degenerative changes of the veteran's spine. At the Board hearing and in a written opinion of June 2005, Dr. C.N.B. provided a rebuttal to the VA orthopedist's comments. He noted that since his report of April 2004 he had the opportunity to review the records of the veteran's work-related injuries and conduct an actual examination of the veteran. He also reported that he was able to review more extensive medical documentation of the veteran's post- service back injury in the mid-1990s than was available to the VA orthopedist. At the Board hearing, the representative noted that the orthopedist was paid by VA and, theoretically, was also biased. Dr. C.N.B. also defended his credentials and expertise to address the disability in the current case by noting that while certified as a radiologist, he specialized in neurological disorders (such as spinal injuries) and interpretation of radiological findings regarding such disorders. He also questioned the orthopedist's conclusions on the basis that the orthopedist's medical reports did not contain full examination findings such as sensation or reflexes, and did not provide objective data to support his findings or conclusions. He also noted that the orthopedist did not address that the veteran was seen for back complaints on six different occasions from August to November 1981, instead reporting this in-service treatment as a single episode. Dr. C.N.B. found that the in- service symptoms of radiating leg pain, cramping, and walking with a limp were indicative of radiculopathy associated with a low back injury, which he argued the VA orthopedist has misinterpreted or ignored. He indicated that the VA orthopedist did not provide any rational to refute that the veteran had a weakened back from his military injury that made him more susceptible to post-service injuries. Finally, he argued that the medical literature he cited in his prior report reflects the current medical knowledge, as this literature dealt with the issue of pathophysiology a subject that has changed little over the years. He also questioned the literature cited by the orthopedist on the grounds that this research dealt with treating back pain in general and did not specifically address the causes of degenerative disc disease. After a review of the conflicting medical opinions and the contemporaneous medical evidence, the Board finds that inconsistencies exist with both sides. The VA orthopedist did little to address the fact that the veteran reported back problems over a four-month period and not just as a single incident in November 1981. He also did not discuss whether the reported in-service symptoms of radiating pain and cramping were related to a low back disability such as radiculopathy. He does make much of the veteran's 1986 on- the-job injury, but this is all based on the veteran's reported history, as there are no records from this injury in the claims file. However, the orthopedist, as indicated in his report of January 2005, appears to have completely dismissed the veteran's lay evidence of chronic symptomatology since active service. See Espiritu, supra. This on its face appears to be highly inconsistent and subjective. Based on the findings in the service medical records, the Board does not feel such a complete disregard of the lay evidence of chronic symptoms is warranted. However, Dr. C.N.B.'s comments are also problematic. He specifically cites to the military outpatient record of late November 1981 that he claimed indicated that the veteran walked with a limp, and that this was evidence of radiculopathy. However, the outpatient record actually notes the opposite finding with a notation that the veterans walked without ("s") a limp, which appears to imply that the veteran's reported claims of symptomatology where not supported by observation. He also does not address the fact that the veteran's separation examination found the veteran's spine and musculoskeletal system were normal upon leaving active service. This objective evidence would tend to refute the veteran's lay evidence of chronic symptomatology since the injury in the fall of 1981. In the end, the Board concludes that both the VA orthopedist and Dr. C.N.B. are competent healthcare professionals who can provide probative evidence on the issue of diagnosis and etiology regarding the veteran's low back disability. The Board also finds the veteran's lay evidence, to include reported histories, to be creditable. Of significance, the Board notes that the veteran has consistently acknowledged that radiological studies prior to the mid-1990s had not shown evidence of arthritis or degenerative changes in the spine. Since the treatment records, especially those for the 1986 injury, are not of record, it would have been easy for him, and in his best interest, to have claimed that X-rays had shown degenerative changes prior to the mid-1990s. As the examining physicians have come to contradictory opinions and argued themselves into a stalemate, the Board finds that the probative medical evidence on the etiology of the veteran's current low back disability is in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In addition, while the nurse practitioner's opinion of is flawed, as discussed above, so are the other opinions of record. Based on these reasons and bases, the Board finds that service connection is warranted for degenerative disc disease of the lumbar spine. ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine is granted. REMAND The veteran's attorney has argued that the veteran's claim for TDIU is inextricably intertwined with his claim for service connection for his low back disability. The Board concurs, as the evaluation and effective date assigned by the AOJ could have a meaningful impact on the correct effective date for the award of TDIU. See Babchak v. Principi, 3 Vet. App. 466 (1992). Therefore, this issue must be remanded for AOJ reconsideration. In addition, the veteran has presented a copy of a Social Security Administration (SSA) decision issued in July 1995 that awarded him disability benefits. This decision indicated that medical evidence regarding the veteran's right knee was considered. VA has not obtained the medical evidence reviewed by the SSA. The RO indicated in a letter to the veteran issued in August 2004 that these records had been requested, however, a review of the claims file shows that they have yet to be received by VA. The Court has ruled on the importance of VA obtaining relevant medical evidence in the possession of the SSA when making determinations on the award of VA compensation. See Murincsak v. Derwinski, 2 Vet. App. 363, 371-2 (1992). On remand, the AOJ must ensure that the relevant SSA records are obtained and associated with the claims file, or make the appropriate determination that they no longer exist (as affirmed by the custodian of the records) and further development would be futile. See 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). Therefore, in order to ensure that the record is fully developed, this case is REMANDED to the AMC for the following: 1. Contact the appropriate SSA office and request legible copies of all evidence reviewed by SSA in its July 1995 award of disability benefits to the veteran. All responses and/or evidence received should be associated with the claims file. 2. Readjudicate the veteran's claims on appeal with application of all appropriate laws and regulations and consideration of any additional information obtained. If any decision with respect to these claims remains adverse to the veteran, he and his representative should be furnished a SSOC and afforded a reasonable period of time within which to respond thereto. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until VA notifies him. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs