Citation Nr: 0811269 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 03-00 331 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disability, claimed as secondary to service connected right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1981 to February 1982, and from August 1987 to August 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. A March 2007 Board decision, in pertinent part, remanded this matter to address due process concerns. In October 2007, the Board referred the issue to the Veterans Health Administration (VHA) for an advisory medical opinion. FINDING OF FACT A chronic back disability was not manifested in service; the veteran's current back disability was first manifested a number of years after his separation from service, and is not shown to be related to injury or disease in service or to his service connected right knee disability. CONCLUSION OF LAW Service connection for a back disability, including as secondary to service connected right knee disorder, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act (VCAA) The VCAA, in part, describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that the notice requirements of the VCAA applied to all 5 elements of a service connection claim (i.e., to include the rating assigned and the effective date of award). A November 2005 letter informed the veteran of the evidence and information necessary to substantiate the claim, the information required of him to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that he should submit if he did not desire VA to obtain such evidence on his behalf. While the notice was not provided prior to the rating on appeal, the veteran subsequently received complying notice, and the issue was then readjudicated. See April 2006 supplemental statement of the case (SSOC). A March 2006 letter provided additional notice, to include regarding disability ratings and effective dates of awards. See Dingess, supra. As this decision does not address any effective date or disability rating matters, the veteran is not prejudiced by any timing defect as to this notice. Regarding VA's duty to assist, the record includes the veteran's service medical records (SMRs), as well as relevant private and VA medical records. VA has obtained all pertinent/identified records that could be obtained, and all evidence constructively of record has been secured. The veteran was afforded a VA examination in December 2003, and in October 2007 the Board sought a VHA specialist's medical advisory opinion. In a January 2008 letter, the appellant was notified of the decision (and was provided a copy). He was given opportunity to respond/supplement the record. No additional evidence or argument was received. VA's duty to assist the veteran is met. II. Factual Background The veteran contends that he has a low back disability that was either incurred in service or was caused by or made worse by his service connected postoperative residuals of right knee injury. The veteran's SMRs show that in June 1988 he was seen with complaints of back muscle spasms. Examination showed limited range of motion but no objective abnormalities; musculoskeletal strain, low back was diagnosed. There were no further low back complaints or findings during the remainder of his active duty. On service separation examination in August 1990 the spine was normal on evaluation. VA examinations in August 1982 and August 1992 did not note any complaints related to the low back. Emergency room records dated in October 1995 note the veteran was seen for complaints including low back pain following an automobile accident. Follow-up treatment records over the next ten months show continuing low back complaints; however, objective testing, including X-rays, MRI, and CT, did not show low back pathology. An August 1996 statement from Carlos Acosta, M.D., notes the veteran had subjective low back complaints, but no objective findings; his diagnosis was chronic pain syndrome. VA examination in March 2001 noted normal gait. An October 2001 statement from J. Scott Ellis, D.O., notes: He is now complaining of some pain in the ankle and heel of the left side as well as the medial aspect of the left knee and the low back. These could be related to his abnormal gait since he did have an injury on the right leg and was putting more weight on the left side of his body. A July 2003 VA outpatient record signed by a physician's assistant, noted that the veteran was being sent for shoe orthotics and "agree with patient that his altered gait can cause lower back pain and undue stress on the left knee." A VA examination report dated in December 2003 notes a diagnosis of lumbosacral strain. The examiner noted that the veteran did not use orthotics. Strain of the lumbosacral spine was noted. The examiner stated "I can find no condition of his back that would be related to his right knee." The Board sought, and in November 2007 received, a VHA medical advisory opinion regarding the etiology of the veteran's back complaints. After reviewing the record, the VHA physician stated that the veteran's current back disability appeared to be part of generalized musculoskeletal aches and pains, possibly a part of myofascial syndrome or depressive disorder. He concluded that the veteran's back disability was not caused by his one-time episode of back strain in 1988; was not caused by his right knee disability; and was "least likely to be aggravated due to his right knee disability." The physician further stated that "given the fact that he has multiple musculoskeletal problems, the presence of a right knee condition while he has a low back condition does compound his overall perception of pain and overall quality of life." In an addendum to his report, the VHA physician clarified his earlier report, stating that the "back condition in this veteran is less likely than not aggravated by his right knee condition." III. Legal Criteria and Analysis Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 U.S.C.A. § 3.303. 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). Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Where a service- connected disability aggravates a nonservice- connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A chronic back disability was not manifested in service. While SMRs show a single treatment for low back muscle strain in 1988, the complaints did not persist. On service separation examination in August 1990, the spine was normal. The first postservice evidence of back complaints followed an intercurrent injury, an automobile accident in October 1995. The Board finds that the normal examination at service separation, coupled with the absence of any contemporary evidence in the record of complaints, treatment, or diagnosis for back complaints until after the auto accident in 1995, outweigh any current assertion that symptoms of back pain were continuous after service. Furthermore, the only medical opinion addressing a nexus between the current back complaints and the inservice findings, the VHA physician's report, concluded that they are unrelated. Accordingly, service connection for any current back disability on a direct basis, i.e., that it was incurred or aggravated in service, is not warranted. The veteran's central contention is that his current back disability resulted from or has been aggravated by his service connected right knee disorder. Three threshold requirements must be met in order to establish secondary service connection. First, there must be competent evidence (a medical diagnosis) of current disability. This requirement is met as lumbosacral strain has been diagnosed. The further two requirements that must be satisfied are: Evidence of a service-connected disability and competent evidence of a nexus between the service- connected disability and the disability for which secondary service connection is claimed. As the veteran has established service-connection for postoperative residuals of right knee injury, what remains to be shown is that back disability for which service connection is claimed was caused or aggravated by his right knee condition. The October 2001 statement from Dr. Ellis that the veteran's low back complaints "could be related" to abnormal gait from right leg injury does not constitute a probative medical opinion. Considered in its full context, including the absence of evidence showing ongoing gait problems, it is an opinion of mere possibility and not probability. See Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (the United States Court of Appeals for Veterans Claims (Court) found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection); Bloom v. West, 12 Vet. App. 185 (1999) (the Court held that a physician's opinion that the veteran's time as a prisoner of war "could have" precipitated the initial development of a lung condition, by itself and unsupported and unexplained, was "purely speculative"); Bostain v. West, 11 Vet. App. 124, 128 (1998) (the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence); et al. The same analysis applies to the July 2003 VA outpatient record signed by a physician's assistant, that noted that the veteran was being sent for shoe orthotics and that the physician's assistant would "agree with patient that his altered gait can cause lower back pain and undue stress on the left knee." The phrase "can cause" places this statement firmly within the realm of mere possibility and not probability, and the fact that no orthotics or altered gait were noted on the December 2003 VA examination undercuts the stated rationale for the opinion. Assuming, arguendo, that the statements of the physician's assistant and Dr. Ellis have probative value, their statements are far outweighed in probative value by the December 2003 VA physician's opinion that found "no condition of his back that would be related to his right knee" as well as that of the VHA orthopedist in November 2007 that the veteran's back condition was not caused by his right knee disability and was "less likely than not" aggravated by the right knee condition. In contrast to the physician's assistant's statement and Dr. Ellis's statement, the December 2003 VA examiner's opinion and the VHA specialist's opinion were based on an explicit medical history, review of the claims file, and in the case of the December 2003 VA examiner's report, current examination. Accordingly, secondary service connection for a back disability likewise is not warranted. The Board has considered the doctrine of affording the veteran the benefit of any existing doubt; however, the preponderance of the evidence is against this claim. Hence, it must be denied. ORDER Service connection for a back disability, including as secondary to service connected right knee disorder, is denied. ____________________________________________ GEORGE R. SENYK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs