Citation Nr: 1237703 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 07-19 326 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a lumbar spine (low back) disability claimed as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran served on active duty from May 1973 to November 1974. This matter comes on appeal before the Board of Veterans' Appeals (Board) from March 2005 and June 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Portland, Oregon (RO). In a March 2005 rating decision, the RO continued a 20 percent rating for a post-operative menisectomy of the right knee due to trauma with quadriceps atrophy; proposed to decrease a 30 percent evaluation for degenerative joint disease of the right knee to 10 percent; and denied service connection for a right ankle sprain, a left knee condition, and a low back condition, all claimed as secondary to a service-connected right knee disability. In June 2005, the RO reduced an evaluation for degenerative joint disease of the right knee from 30 percent to 10 percent, effective September 1, 2005; and continued previous denials of service connection for chronic lumbar strain, claimed as a low back condition, and right ankle sprain. The Veteran submitted a timely notice of disagreement to the June 2005 rating decision, appealing the decrease in compensation for his service-connected right knee, and appealing issues of entitlement to service connection for chronic lumbar strain and right ankle sprain. In a subsequent March 2007 rating decision, the RO restored a 30 percent evaluation for degenerative joint disease of the right knee, noting that this was a complete grant of the benefit sought on this appeal. No further disagreement was indicated; therefore, this issue is no longer on appeal. In an October 2009 rating decision, the RO granted service connection for a right ankle sprain and assigned a 10 percent evaluation effective June 29, 2009. The Veteran filed a timely notice of disagreement to the assigned effective date, noting that his original claim was filed in July 2004. In a May 2010 rating decision, the RO granted entitlement to an earlier effective date for service connection for chronic right ankle sprain effective July 13, 2004, the date of the Veteran's claim. The RO noted that this was a full grant of the benefits sought by the Veteran in his notice of disagreement. No further disagreement has been indicated; therefore, this issue is also no longer on appeal. The only issue remaining on appeal is entitlement to service connection for a low back disability claimed as secondary to a service-connected right knee disability. The Board remanded the claim in December 2011 for further development. Development has been completed and the case is once again before the Board for review. FINDING OF FACT The Veteran's lumbar spine disability is not etiologically related to active service and is not shown by competent medical evidence to be etiologically related to or aggravated by a service-connected disability. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated by active service; is not proximately due to, the result of, or aggravated by a service-connected disease or injury; and may not be presumed to have been incurred or aggravated in service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). VA has met its duty to notify and assist the Veteran in this case. In an October 2004 letter, VA informed the Veteran of the evidence necessary to substantiate his claim based on both direct and secondary service connection, evidence VA would reasonably seek to obtain, and information and evidence for which the Veteran was responsible. VA did not provide the Veteran with VCAA notice of the type of specific evidence necessary to establish a disability rating or effective date prior to the initial rating decision. The RO provided the Veteran with corrective notice with regard to establishing a disability rating and effective date in a March 2007 statement to the case (SOC) and cured any notice timing deficiency when it readjudicated the case in October 2007, October 2009, February 2011, and September 2012 supplemental statements of the case (SSOC). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that SOC or SSOC can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. Id. Additionally, as the Board concludes below that the preponderance of the evidence is against the Veteran's claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). There is no indication that any notice deficiency reasonably affects the outcome of this case. Thus, the Board finds that any failure is harmless error. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran's service treatment records, VA and private treatment records, Social Security Administration (SSA) medical records, VA examinations, and lay statements have been associated with the claims file. The Board notes specifically that the Veteran was afforded VA examinations in November 2004, June 2009, and December 2011. 38 C.F.R. § 3.159(c)(4) (2011). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As set forth in greater detail below, the Board finds that, cumulatively, the November 2004 and December 2011 VA examinations and opinions, obtained in this case are adequate as they were predicated on a review of the claims folder and medical records contained therein; contain a description of the history of the disability at issue; document and consider the Veteran's complaints and symptoms; and include opinions, supported by a rationale for the opinions rendered. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). VA has provided the Veteran with every opportunity to submit evidence and arguments in support of his claim, and to respond to VA notices. In a February 2012 statement, the Veteran asserts that the December 2011 VA examination and opinion are inadequate. The Board finds, upon review of the December 2011 VA examination report, that it provides competent, credible, and probative evidence in this case, that the opinion rendered is responsive to questions asked on remand, and that the opinion rendered is based on the correct facts as shown by the record. The Board finds that the Veteran's mere disagreement with the results of an examination are not grounds for reexamination. The Board finds, therefore, that the RO/AMC has fully complied with the directives of a December 2011 Board remand and additional examination is not warranted. See Stegall v. West, 11 Vet. App. 268, 270 (1998). The Veteran and his representative have not otherwise made the Board aware of any outstanding evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2011). VA has afforded the Veteran ample opportunity to submit arguments and evidence in support of his claim. The Board finds that the evidence of record is sufficient to resolve this appeal, and VA has no further duty to provide an examination or opinion. After a careful review of the file, the Board finds that VA has met its duty to notify and assist the Veteran. All necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). B. Law and Analysis In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2011). Service connection may 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) (2011). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). In order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). 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 (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 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, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made. Thus, in order to establish service connection for a claimed secondary disorder, there must be medical evidence of a current disability; evidence of a service-connected disability; and medical evidence of a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-7 (1995). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). At the outset, it is noted that the Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate. The Veteran contends that he has a low back disability that is secondary to his service-connected right knee. VA examinations and VA and private treatment records show that the Veteran is currently diagnosed with lumbar spine degenerative disc disease. However, the Board finds that the preponderance of the evidence weighs against the Veteran's claim for service connection for a lumbar spine disability claimed as secondary to a service-connected disability. Service treatment records, to include a March 1973 enlistment examination and October 1974 separation examination, contain no complaints, diagnoses, or treatment for a low back disorder or injury to the lumbar spine. Arthritis of the lumbar spine did not manifest within a year following the Veteran's separation from service. The Veteran's current lumbar spine disability is not shown to be related to service, nor does the Veteran contend that his back disability is related to service. Instead, he contends that his low back disability is aggravated by gait imbalances caused by his service-connected right knee. The record shows that the Veteran had two post-service injuries to the back, one work-related injury in January 1988 and one incurred during an assault in December 2002. The earliest indication of a post-service back disability was in May 1989. A May 1989 MRI reflects a diagnosis of degenerative changes of the L4-5 disc with no evidence of disc herniation. A September 2006 independent medical evaluation, completed in conjunction with a prior lawsuit initiated by the Veteran, shows the Veteran was evaluated for back pain in 1988 and 1989 after a January 1988 injury, and states that there was a March 1988 Workers' Compensation claim associated with this incident. The Veteran reported in conjunction with his treatment in multiple VA treatment reports, in a September 2006 independent medical evaluation, and in a November 2004 VA examination that his current back pain began in December 2002 after being assaulted by a police officer. Specifically, the Veteran described an incident which occurred in December 2002 where he was pulled over by the police for driving while intoxicated after losing control of his vehicle and hitting a small tree. He reported that when he exited his vehicle, he was kicked or hit in the back by police officers. The Veteran reported during the course of VA treatment and in a September 2006 independent medical evaluation that he had the onset of severe back pain after the December 2002 incident which persisted since that time. The Veteran did note in July 2004 and October 2004 VA treatment reports and during the November 2004 VA examination that he was treated for a bulging disc in 1989, but he reported that after a year-and-a-half, he had full resolution of pain symptoms in the back, and reported that he had no more back problems until the assault that occurred in December 2002. While the Veteran claims that his current back disability is secondary to a service-connected right knee disability, VA and private treatment reports show that the onset of Veteran's low back symptoms and the initiation of his treatment for a lumbar spine disability occurred immediately following post-service injuries to the back which occurred in 1988 and 2002. The Veteran has been service-connected for a right knee disability since his separation from service in November 1974; however, the medical evidence of record shows that he did not have any complaints or treatment related to the back until his 1988 injury, and by the Veteran's own admission, his back symptomatology had resolved and did not recur until a subsequent December 2002 injury to the low back. The Board finds statements provided in medical records contemporaneous to the Veteran's post-service back injuries are probative as these statements were rendered for treatment purposes. While the Veteran contends that his current back disability is either caused by or aggravated by his service-connected right knee, stating that problems with his gait and a leg length discrepancy cause him to limp and throws his back out of alignment, the Board finds that the Veteran does not possess the medical training and expertise necessary to render a medical opinion concluding that this is the most likely etiology for his claimed lumbar spine disability, and medical evidence is required in this regard. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1991) (holding that a lay witness can provide an "eye-witness" account of visible symptoms, but cannot offer evidence that requires medical knowledge, such as causation or etiology of a disease or injury). See also 38 C.F.R. § 3.159(a)(2). Additionally, the Board finds that the Veteran's current contentions as to the cause of his low back disability are not credible, given his history of injury in 1988 and 2002 and his back complaints shown by medical evidence of record to be specifically referable to those injuries. In contrast, the Board finds that VA medical opinions of record provided competent, credible, and probative evidence showing that the Veteran's currently diagnosed lumbar spine disability is not proximately due to, the result of, or aggravated by a service-connected disease or injury. According to the United States Court of Appeals for Veterans Claims (CAVC), "the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches." Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The credibility and weight to be attached to these opinions is within the province of the Board. Id. The Board finds that opinions provided during November 2004 and December 2011 VA examinations are probative and show that the Veteran's low back disability was neither caused by, nor aggravated by a service-connected right knee disability, and findings from a July 2004 VA rheumatology consultation and a June 2009 VA examination provide further evidence which tend to support of the November 2004 and December 2011 VA examiners' conclusions. VA examinations of record included a review of the claims file, discussed pertinent findings from the Veteran's medical history, and included a comprehensive physical examination of the Veteran, to include evaluations of both the lumbar spine and the right knee. November 2004, July 2009, and December 2011 VA examinations correctly noted that the Veteran had a history of post-service back injuries. A December 2011 VA examination specifically discussed and considered the Veteran's own assertions with regard to having low back pain due to gait disturbance. The record also includes a July 2004 VA rheumatology consultation, which included a review of the Veteran's medical history as it pertained to his various orthopedic disabilities, to include his back and right knee disability, and a physical examination was completed in conjunction with this evaluation. The VA treating physician stated in the July 2004 report, based on the Veteran's history and presentation during examination based on the Veteran's history and presentation during examination, that the Veteran had post-traumatic knee osteoarthritis, but this was not a cause of his back pain or his diffuse pain syndrome. Based on the Veteran's history, symptoms, and presentation, the November 2004 VA examiner stated that he did not see any evidence that the Veteran's diagnosed lumbar spine disability was service-connected to the right knee. He reasoned that the lumbar spine disability was instead connected to the beatings that he took from police officers in December 2002. A June 2009 VA examiner opined that she was not able to state that the Veteran's low back pain was secondary to his service-connected right knee problems without resorting to mere speculation, reasoning that the Veteran had prior injuries to the back in the mid 1980s and in 2002 which were not service-connected. The December 2011 VA examiner opined that it was less likely than not that any back symptoms were caused or aggravated by the Veteran's service-connected right knee condition or surgery. The VA examiner reasoned that the Veteran's myriad of subjective complaints for the back could not be substantiated on physical examination, and that the minimal arthritic changes shown on x-ray were expected for the Veteran's age. He reasoned that on physical examination, the Veteran's ambulation was not impaired at all. The Veteran did not have to constantly bend over to use a walker or to ambulate. He stated in support of his conclusion that there were no known situations where essentially normal knees and ankles, even with past minor surgeries, could produce a lower back condition or aggravation of a pre-existing injury. The November 2004 and December 2011 VA examiners determined that there was no relationship between the Veteran's service-connected right knee and his claimed low back disability and provided a complete rational for the opinions rendered based on objective findings from the record, and the December 2011 VA opinion sufficiently addressed the issue of aggravation. An opinion provided by during a July 2004 VA rheumatology consultation provides additional evidence which tends to support the findings reached by November 2004 and December 2011 VA examiner. For these reasons, the Board finds that service connection for a lumbar spine disability, claimed as secondary to a service-connected right knee disability is not warranted. Service treatment records do not reflect a lumbar spine injury in-service. The Veteran's current lumbar spine disability was diagnosed many years after service, and there is no chronicity or continuity of symptomatology shown by competent and credible evidence of record. November 2004 and December 2011 VA opinions provide competent, credible, and probative evidence showing that the Veteran's current lumbar spine disability is not secondary to a service-connected disability. Therefore, the Board finds that service connection for a lumbar spine disability is not warranted on either a direct or secondary basis. C. Conclusion Although the Veteran has currently a diagnosed lumbar spine disability, the competent, credible, and probative evidence of record does not show that a lumbar spine disability was incurred or aggravated in service, arthritis of the lumbar spine did not manifest within a year following the Veteran's separation from service, and no nexus has been established between the Veteran's current disability and his military service. Additionally, the Veteran's lumbar spine disability is not shown to be proximately due to, the result of, or aggravated by a service-connected thoracic spine disability. Therefore, the Board concludes the preponderance of the evidence is against finding that the Veteran's lumbar spine disability is etiologically related to active service or to a service-connected disability. The appeal is accordingly denied. In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim. ORDER Service connection for a lumbar spine disability is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs