Citation Nr: 0814225 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 06-13 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for degenerative joint disease and degenerative disc disease of the lumbosacral spine, as secondary to bilateral knee disabilities. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Rebecca Feinberg, Associate Counsel INTRODUCTION The veteran served on active duty from December 1950 to June 1954 and from April 1958 to April 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDING OF FACT Degenerative joint disease and degenerative disc disease of the lumbosacral spine is unrelated to a service connected disease or injury. CONCLUSION OF LAW Degenerative joint disease and degenerative disc disease of the lumbosacral spine is not proximately due to or the result of a service connected disease or injury. 38 C.F.R. § 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) 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 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a substantially complete application for benefits, VA must notify the claimant and his representative of any information, or medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); 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; and (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his possession that pertains to the claims, in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In the present case, the veteran's claim was received after the enactment of the VCAA. A letter dated in May 2005 told the veteran that VA would make reasonable efforts to obtain evidence necessary to support his claim. He was informed that he was required to provide sufficient information to allow VA to obtain records. He was asked to identify any VA or private medical treatment. The various types of evidence that might support his claim were listed. The letter outlined VA's responsibilities with respect to obtaining evidence on the veteran's behalf. The veteran was asked to submit any evidence in his possession that pertained to his claim. He was given notice as to what the evidence needed to show to substantiate his claim for secondary service connection. The Board also notes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. The veteran was provided with such notice in March 2006. While complete VCAA notice in this case was not provided prior to the initial adjudication, and that error is presumed prejudicial, the record reflects that he was provided with a meaningful opportunity such that the preadjudicatory notice error did not affect the essential fairness of the adjudication now on appeal. The record shows that the veteran submitted a notice of disagreement and substantive appeal, which advanced his contentions regarding this claim. The Board is unaware of any outstanding evidence or information that has not already been requested. Therefore, the Board is satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. Neither the veteran nor his representative has contended that any evidence relative to the issue decided herein is absent from the record. The veteran has been afforded an examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). For the foregoing reasons, it is not prejudicial to the veteran for the Board to decide this appeal. Analysis Here, the veteran seeks service connection for degenerative joint disease and degenerative disc disease of the lumbosacral spine as secondary to the service-connected bilateral knee disabilities. He alleges that his spine disorder was caused by his knee disabilities. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). This includes any increase in disability (aggravation) that is proximately due to or the result of a service connected disease or injury. 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 caused or aggravated by a service- connected disease or injury. Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Effective October 10, 2006, the section heading of 38 C.F.R. § 3.310 was retitled and paragraph (b) of 38 C.F.R. § 3.310 was redesignated as paragraph (c), and a new paragraph (b) was added. However, since the veteran raised this claim prior to October 2006, the Board will consider the version of 38 C.F.R. § 3.310 in effect before the change, which version favors the claimant. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran is claiming service connection for degenerative joint disease and degenerative disc disease of the lumbosacral spine. He alleges that this disorder is due to his bilateral knee disabilities. The Board notes that, while the veteran as a lay person is competent to provide evidence regarding injury and symptomatology, he is not competent to provide evidence regarding diagnosis or etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Such an opinion requires diagnostic skills and must be made by trained medical personnel in order to carry probative weight. May 2002 VA outpatient records show the veteran's x-rays revealed diffuse degenerative changes with facet joint hypertrophy and sclerosis in the lumbosacral spine. He complained of acute or subacute lower back pain. He underwent physical therapy. Private treatment records dated in July 2002 show the veteran was involved in a motor vehicle accident and complained of back pain. A March 2005 VA outpatient record shows the veteran was ambulatory without assistive devices. He had a somewhat stiff posture and complained of chronic low back pain. In an April 2005 written statement, a VA physician indicated that in his opinion, the veteran's lower back problem was at least as likely as not related to his favoring one knee over the other, over the years, and throwing his back out of gait. In June 2005, the veteran underwent VA examination. He indicated his back pain began in 2002 with no specific injury. On examination, the veteran had an antalgic gait due to his left knee pain. Previous x-ray reports showed diffuse degenerative changes with facet joint hypertrophy and sclerosis in the lumbosacral spine. The diagnosis was degenerative joint disease with degenerative disc disease of the lumbosacral spine with residuals. In a July 2005 addendum, the VA examiner indicated that it was less likely than not that the veteran's back pain was related to his service-connected knee condition. It was more likely than not that the back pain was related to his motor vehicle accident. In his January 2006 notice of disagreement, the veteran contended that the July 2005 opinion was wrong because he had a diagnosis of degenerative changes of his spine prior to the July 2002 motor vehicle accident. In March 2006, the veteran's claims file was provided to a VA physician for review. That physician discussed the veteran's claim at length with an orthopedic consultant, who reviewed x-rays and prior examination reports. Service medical records documented bilateral knee disorders. He had resultant degenerative joint disease of both knees, but this was mild and did not produce marked or significant abnormalities such as ankylosis, leg length discrepancy, or significant gait disturbance or asymmetry. The degenerative joint disease changes noted in the lumbosacral spine were diffuse and became recognized in 2002, when the veteran was 71 years old. The changes are most consistent with that associated with aging. Therefore, the VA physician concluded that it was less likely than not that the degenerative joint disease changes of the lumbosacral spine were significantly related to the old knee injuries and the mild degenerative joint disease present in the knees. The station orthopedist was in concurrence with this opinion. There are three opinions of record concerning whether the veteran's spine disorder is secondary to his bilateral knee disabilities. In reviewing each opinion, the Board finds that the opinion of the VA examiner in March 2006 is most probative. It is clear from the statement that the veteran's claims file was reviewed. In addition, that examiner provided a rationale for the opinion and indicated he consulted with an orthopedist in reaching that conclusion. In contrast, the July 2005 VA examiner's opinion related the veteran's spine disability to a July 2002 motor vehicle accident and failed to acknowledge that x-rays had shown degenerative changes of the veteran's spine prior to that accident. In addition, the April 2005 opinion provided by the veteran's treating physician did provide the rationale that the veteran's back disorder was due to the antalgic gait produced by his knee disabilities. However, that physician did not address the veteran's age its impact on his spine. Nor did he indicate how he came to the conclusion that the veteran's knee disabilities caused his spine disorder, to include a discussion of the severity of the knee disability in causing the spine disorder. In contrast, the March 2006 opinion addressed several potential causes of the veteran's spine disability and provided a conclusion that it was due to aging by opining that, while the veteran had bilateral knee disabilities, they were mild and would not have been severe enough to cause degenerative joint disease and degenerative disc disease of his lumbosacral spine. Given that this opinion contains the more extensive rationale and opinion, the Board finds that it is most probative. Therefore, the Board finds that the evidence preponderates against the claim of entitlement to service connection for degenerative joint disease and degenerative disc disease of the lumbosacral spine, and the claim must be denied. ORDER Service connection for degenerative joint disease and degenerative disc disease of the lumbosacral spine, as secondary to bilateral knee disabilities, is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs