Citation Nr: 1113552 Decision Date: 04/06/11 Archive Date: 04/15/11 DOCKET NO. 09-37 977 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana THE ISSUE Entitlement to service connection for lumbar disc disease, claimed as secondary to service-connected right and left hip bursitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. L. Tarr, Law Clerk INTRODUCTION The Veteran served on active duty from October 1996 to November 1997. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision in which the RO denied service connection for lumbar disc disease. In February 2008, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in July 2009, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in September 2009. In March 2010, the Veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the Veteran requested, and the undersigned granted, a 60-day abeyance period within which to submit additional evidence. In March 2010, the Veteran's representative submitted additional evidence, along with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2010). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. While the record includes conflicting findings/opinions as to whether the Veteran's service-connected right and left hip bursitis result in abnormal weightbearing causing lumbar spine disability, competent medical and other evidence tends to support a finding that the Veteran's service-connected right and left hip bursitis has resulted in weight gain which has lead to current lumbar disc disease and associated pain. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar disc disease, secondary to service-connected right and left hip bursitis, are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Given the favorable disposition of the claim on appeal, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 C.F.R. § 3.310(a) (2010), service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). [Parenthetically, the Board notes that, effective October 10, 2006, VA amended 38 C.F.R. § 3.310 with regard to the requirements for establishing secondary service connection on an aggravation basis. See 71 Fed. Reg. 52,744-47 (Sept. 7, 2006). However, given the basis for the allowance, as noted below, any further discussion of the amendment is unnecessary.] In determining whether service connection is warranted for a disability, 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. See generally 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, service connection has been established for right and left hip bursitis and the Veteran has been diagnosed with lumbar disc disease, as evidenced by the VA treatment records. Moreover, the medical evidence of record includes what appears to be conflicting medical opinion and other evidence on the question of whether there exists a medical relationship between the lumbar disc disease for which service connection is sought and the Veteran's service-connected right and left hip bursitis. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other 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. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). A medical opinion may not be discounted solely because the examiner did not review the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2009). The Veteran's VA physician, Dr. Sadda, submitted several statements in which he stated that the Veteran's lumbar disc disease and low back pain result from her right and left hip bursitis. The Veteran was afforded a VA examination in August 2006. On examination, the examiner found no evidence of abnormal weight bearing or other hip symptomatology. By contrast, in a January 2007 VA treatment report, a VA physician noted that the Veteran experiences weakness of her left hip muscles and therefore is unable to bear full weight on her left leg. The physician further noted that the Veteran's left hip bursitis had resulted in an altered posture and a strain on the lumbar spine. Other VA treatment notes report that the Veteran had more pain on her left side and difficulty maintaining balance. In an August 2007 letter, Dr. Sadda opined that the Veteran's back disability was a result of abnormal posture due to her right and left hip bursitis. The Veteran was afforded a VA examination in May 2008 to obtain a medical opinion to address the relationship, if any, between the Veteran's lumbar disc disease and her service-connected right and left hip bursitis. The examiner opined that the Veteran's right and left hip bursitis did not cause her lumbar disc disease, reasoning that, in order for lower extremity problems to affect the back, the disability must cause the Veteran to be bent over or sideways at the back. He concluded that the more likely cause of her back disability was obesity. During the March 2010 Board hearing, the Veteran testified that she gained weight as a result of service-connected right and left hip bursitis, thus, her back disability was secondary to those service-connected conditions. The Veteran reported that her physical activity was severely limited by her right and left hip bursitis and therefore she had gained a significant amount of weight. The Veteran testified that prior to developing right and left hip bursitis, she was very active and exercised frequently. The medical evidence supports the Veteran's assertions regarding her weight gain. In an October 2006 neurosurgery consult note, the physician noted that the Veteran's right and left hip disability began during service and that she experienced pain since that time. The physician also noted that the Veteran's pain severely limited her activities and exercise capability. The Veteran reported difficulty bending and standing any length of time. The physician noted that this caused the Veteran to gain a significant amount of weight. In a December 2006 statement, Dr. Sadda noted that the Veteran's bilateral hip pain severely limited routine activities. Other medical evidence indicates that the Veteran's hip and back pain caused further weight gain. The Board notes that there is conflicting medical evidence as to whether the Veteran's right and left hip bursitis results in abnormal weightbearing, and whether any such weightbearing problems caused the Veteran's lumbar spine disability. The VA treatment records reflect weightbearing problems and a VA physician opined that the Veteran's abnormal posture, a result of her right and left hip bursitis, caused her lumbar spine disability. On the contrary, no abnormal posture was found on VA examinations in August 2006 and May 2008, and the May 2008 VA examiner concluded that the Veteran's obesity, not her right and left hip bursitis, caused her lumbar spine disability. However, notwithstanding the negative findings of the August 2006 and May 2008 VA examinations in regards to weightbearing, there is other medical and opinion evidence of record that tends to support the claim. During the March 2010 Board hearing, the Veteran testified that her right and left hip disabilities severely limited her activities and caused her to gain weight. Moreover, VA and private treatment records reflect that the Veteran's right and left hip bursitis caused pain and inhibited her exercise capability, resulting in weight gain. Consistent with the May 2008 VA examiner's conclusion that the Veteran's lumbar spine disability was caused by her obesity, the evidence reflects that the Veteran's service-connected right and left hip bursitis caused the Veteran to gain weight. This evidence, thus, tends to establish an etiological relationship-albeit, an indirect one-between the Veteran's right and left hip bursitis and current lumbar spine disability, warranting the application of the reasonable doubt doctrine. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 3.102. See also 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53-56. Given the totality of the evidence, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for lumbar disc disease, secondary to right and left hip bursitis, are met. ORDER Service connection for lumbar disc disease, secondary to right and left hip bursitis, is granted. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs