Citation Nr: 1007351 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 06-17 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a back disorder, including due to residuals of a total knee replacement (left knee disability). 2. Entitlement to service connection for type II diabetes mellitus, including as due to a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active duty from September 1968 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In May 2009, the Board remanded the claims for additional evidentiary development. The case has been returned to the Board for further appellate review. FINDINGS OF FACT 1. A back disorder was not demonstrated in-service, spinal arthritis was not compensably disabling within one year of the Veteran's discharge from active duty, and a current back disorder is not etiologically related to service or to a service-connected disability. 2. Diabetes mellitus was not demonstrated in-service, diabetes mellitus was not compensably disabling within one year of the Veteran's discharge from active duty, and diabetes mellitus is not etiologically related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. A back disorder was not incurred or aggravated during active service, spinal arthritis may not be presumed to have been so incurred, and a back disorder is not proximately due to or the result of a service-connected disorder. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2009). 2. Diabetes mellitus was not incurred or aggravated during active service, diabetes mellitus may not be presumed to have been so incurred, and diabetes mellitus is not proximately due to or the result of a service-connected disorder. 38 U.S.C.A. §§ 1110, 5103, 5103A; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in August 2004 correspondence of the information and evidence needed to substantiate and complete the claims for service connection for a back disorder and for diabetes mellitus. The RO provided notice of how disability ratings and effective dates are determined in March 2006. The claims were readjudicated in a November 2009 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. VA has substantially complied with the notice and assistance requirements; and the appellant is not prejudiced by a decision on the claims at this time. Criteria Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Arthritis and diabetes mellitus may be presumed to have been incurred in service, if the evidence shows that such disease became manifest to a degree of 10 percent or more within one year from separation from active service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a), 3.309(a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same. In so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board is mindful that it cannot make independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Veteran seeks entitlement to service connection for a back disorder and diabetes mellitus, including as secondary to a left knee disability. In a January 2000 rating decision service connection was granted for degenerative arthritis of the left ankle. In February 2001, service connection was granted for degenerative arthritis of the medial compartment of the left knee. In June 2003, service connection was granted for left knee instability. In a December 2003 rating decision, the Veteran's left knee disabilities were rated as residuals of a total left knee replacement. Back Disorder The Veteran's service treatment records are negative for any complaints of or treatment of a low back disorder. Post-service VA medical treatment reports show that in 2003, the Veteran was diagnosed as having bilateral L5 pars defect with grade I L5-S1 spndylolisthesis. Private medical treatment reports show that in November 2006, the Veteran underwent an anterior lumbar and body fusion at L5- S1, for Grade 1 L5-S1 isthmic spondylolisthesis. There is also evidence of mild degenerative changes of the lumbosacral spine on a MRI conducted in January 2004, and on VA orthopedic examination conducted in September 2009. The record contains conflicting medical evidence concerning the relationship between the Veteran's back disorder and his service-connected left knee disability. In a December 2003 VA outpatient record, a physician's assistant stated that she believed the Veteran's back pain was caused by his compensating for the left knee. In a January 2004 VA outpatient record, the Veteran's treating primary care physician said that the Veteran's back pain was "directly related to his left knee status post total knee replacement and it has been an issue since his total knee replacement." Following a May 2004 VA spine examination conducted by a physician the examiner opined that the Veteran would not be a candidate for any surgical intervention. The VA examiner concluded that the Veteran had pars defect that would not have been caused by his knee pathology. The examiner said that the Veteran's pars defect resulted in his current back disorder and spondylolisthesis. In the VA examiner's opinion, it was not at all likely that the Veteran's back disorder was associated with, caused by, or aggravated by his knee disorder, and it was unrelated to military service. In an October 2005 VA outpatient record, the Veteran's treating physician again stated that she believed that the Veteran has "chronic low back pain related to his compensation on his left knee." This VA physician noted the Veteran's service-connected left knee disability and ankle problem and said "I do believe that his back pain is definitely related to that as well". In light of the differing medical opinions of record, the Board remanded the claim in May 2009 for further VA examination. The Veteran underwent a VA spine examination by an orthopedist in September 2009. The examiner noted that the Veteran's claims file and service medical records as well as radiographs were reviewed in their entirety prior to the examination. The Veteran also underwent a complete physical examination. The examiner found that a February 2004 MRI showed a bilateral L5 pars defect, and he opined that this defect was the direct cause of the L5-S1 spndylolisthesis, and the need for a spinal fusion. The orthopedist opined that the cause of the Veteran's low back pain, to include the radiating pain from his hip to above his knees, was due to his bilateral pars defect, grade I L5-S1 listhesis, and subsequent operation. The examiner found that the Veterans' back disorder was not connected to the knee problem and that there is no medical connection. Indeed, the examiner opined that even if the Veteran had normal knees, his back problem would be the same because the entities were not medically connected. Thus, the examiner concluded that the Veteran's back disorder was not aggravated by his knee problems. The examiner also found that the Veteran's back disorder did not begin in service but was rather due to his preexisting L5 bilateral pars defect. The examiner reported reviewing the other medical opinions of record which related the back pain to the left knee disability; however, the examiner emphasized that those opinions were not supported by any rationale explaining why the knee condition had caused the back pain. The examining orthopedist noted that traditionally hip pain is much more strongly connected to back pain than is knee pain, and the treating physician did not give a rationale explaining why the Veteran's case would be an exception. The examiner noted that his opinion was substantiated by the May 2004 VA examiner's opinion. In this case, there is no credible and competent evidence of any chronic back disability in-service, or of spinal arthritis within one year of the Veteran's release from active duty. The first documentation of a back disorder in the record is in 2003, which is more than 30 years after discharge from service. This length of time is evidence against the claim. See Maxson v. West, 12 Vet. App. 453 (1999) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Furthermore, the competent medical opinions from the May 2004 and September 2009 VA examiners establish that the Veteran's back disorder is not related to service. Accordingly, service connection for back disorder is not warranted on a direct or presumptive basis. With respect to issue of entitlement to secondary service connection for a back disorder the record contains conflicting medical evidence concerning the relationship between the Veteran's back disorder and his service-connected left knee disability. A VA physician's assistant and a treating VA physician have opined that the Veteran's back disorder is related to his left knee disability. Conversely, a September 2009 VA orthopedist reviewed the claims folders and examined the Veteran before opining that the Veteran's back disorder was not caused or aggravated by his left knee disorder. The examiner emphasized that the Veteran's back disorder was due to his preexisting L5 bilateral pars defect and was unrelated in any way to his left knee disability. This opinion is substantiated by the May 2004 VA examiner's opinion. After careful consideration, the Board concludes that the opinions of the VA examiners are more probative than the opinions of the VA physician's assistant and the Veteran's treating VA physician who do not provide any rationale for their conclusions. The VA examiners performed thorough examinations and in particular, the September 2009 VA examiner provided a detailed rationale explaining why he felt that the Veteran's back disorder is not caused or aggravated by his left knee disability. Given the thorough nature of the September 2009 VA opinion the Board relies upon that VA examiner's clarification and evaluation of this claim. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board must rely on an informed medical opinion in order to adjudicate a claim); Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (recognizing that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion.) Therefore, for the reasons stated, the Board finds that entitlement to service connection for a back disorder on a secondary basis is also not warranted. Diabetes Mellitus The Veteran contends that because of his service-connected left knee disability, he is not able to exercise and that has contributed to the development of his diabetes The Veteran's service treatment records are negative for any treatment of diabetes mellitus. The Veteran did not demonstrate compensably disabling diabetes until 2003 when he was diagnosed with diabetes mellitus, type II. In a January 2004 VA outpatient record, a VA physician noted that in the past, the Veteran has had an elevated hemoglobin A1C and was able to lose weight and bring his diabetic state into line by only nutritional intervention and exercise. The examiner opined that unfortunately, at that time, due to left knee surgery residuals and back pain, the appellant could not exercise and he needed metformin to treat his diabetes. On VA examination in May 2004, the examiner concurred with the January 2004 VA physician's correlation between the progression of the Veteran's glucose intolerant state to his development of diabetes. The VA examiner concluded that the progression from glucose intolerance to diabetes mellitus was at least as likely as not the result of the Veteran's inability to exercise secondary to his service-connected left knee disability. Further VA examination was conducted in July 2004. The examiner noted that the Veteran had a very strong family history of diabetes on both sides and that he was overweight. The Veteran reported that he was able to swim for half a mile five days per week which the examiner noted could have a beneficial response on the blood sugars. It was recommended that the Veteran swim more for a longer period of time and that he do some upper body exercises as well. The examiner concluded that the Veteran's diabetes was not caused by or a result of the knee injury. The examiner stated that the Veteran was able to participate in non-weight bearing exercise and that aquatic therapy was an excellent program for control of diabetes. The Board remanded the case in May 2009 to obtain verification of the July 2004 VA examiner's medical specialty which the RO reported was an endocrinologist. The examiner's curriculum vitae was obtained and it verified that she is an endocrinologist. Initially, the Board finds that there is no competent or credible evidence of in-service diabetes mellitus or of a nexus between the post service diagnosis of diabetes mellitus and service, to include manifestations to a compensable degree within one year following discharge from service. The first documentation of diabetes mellitus in the record is in 2003, which is more than 30 years after discharge from service. Maxson, 230 F.3d at 1333. Here, at the earliest, several decades elapsed between the Veteran's discharge from active service and the first pertinent medical diagnosis. Hence, service connection for diabetes mellitus is not warranted on a direct or presumptive basis. With respect to question of entitlement to service connection for diabetes mellitus on a secondary basis, a VA physician suggested a correlation between the progression of the Veteran's glucose intolerant state to his development of diabetes. Furthermore, a May 2004 VA examiner concluded that the Veteran's diabetes mellitus is as least as likely as not the result of his inability to exercise secondary to his service-connected left knee disability. On the other hand, a July 2004 VA endocrinologist noted the Veteran's strong family history of diabetes mellitus, as well as the fact that he was overweight. The examiner emphasized that despite his left knee disability, the Veteran was able to swim several days a week which was an excellent program for diabetic control. The examiner concluded that the Veteran's diabetes was not caused by or a result of the knee injury. This opinion directly contradicts the earlier opinions which are predicated on the fact that the Veteran was not able to exercise as a result of his left knee disability and was unable to control his diabetes. In evaluating the merit of this claim, the Board ascribes the greatest probative value to the medical opinion provided by the July 2004 VA examiner who provided a thorough rationale for her opinion. The Board finds that, given the VA examiner's professional expertise as an endocrinologist, her opinion carries more weight than the other medical opinions of record. Accordingly, service connection for diabetes mellitus on a secondary basis is not warranted. Conclusion The Veteran, without medical training, does not meet the burden of presenting competent evidence as to medical cause and effect, or a diagnosis, merely by presenting his own statements. While the Veteran can attest to factual matters of which he had first-hand knowledge, e.g., experiencing pain, he is not competent to offer a medical conclusion. Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). There is no evidence showing, and the Veteran does not assert, that he has medical training to provide competent medical evidence as to the etiology of the claimed back disorder and diabetes mellitus. The evidence establishes the Veteran's back disorder and diabetes mellitus are not related to service or any service- connected disability. The preponderance of the evidence is against the Veteran's claims. The claims are denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for a back disorder is denied. Entitlement to service connection for type II diabetes mellitus is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs