Citation Nr: 1302579 Decision Date: 01/23/13 Archive Date: 01/31/13 DOCKET NO. 05-25 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for lumbar spine arthritis and osteopenia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Counsel INTRODUCTION The Veteran served on active duty from January 1974 to April 1976. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Huntington, West Virginia, Department of Veterans Affairs (VA) Regional Office (RO). In July 2009, the Veteran testified at a personal hearing before the undersigned in Washington, D.C. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in September 2009 at which time the claims of entitlement to service connection for right knee disability, bilateral hip disability, and low back disability were remanded for further development. Entitlement to service connection for a right knee disability and right hip disability was granted by the RO in a May 2010 rating decision. Thereafter, the case was returned to the Board in September 2011 at which time the remaining claims of entitlement to service connection for left hip disability and low back disability were remanded for further development. Entitlement to service connection for a left hip disability was granted by the RO in a March 2012 rating decision. As the benefits sought regarding the right knee, right hip, and left hip have been granted, these claims are no longer before the Board. Seri v. Nicholson, 21 Vet. App. 441, 447 (2007). FINDING OF FACT Probative lay and medical evidence indicates that it is at least as likely as not that the Veteran's currently diagnosed arthritis and osteopenia of the lumbar spine are causally related to his service-connected knee and hip disabilities. CONCLUSION OF LAW Arthritis and osteopenia of the lumbar spine are proximately due to the Veteran's service-connected knee and hip disabilities. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's 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)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Given the favorable disposition of the claim for service connection for a low back disability, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. Analysis The Veteran contends that he is entitled to service-connected compensation benefits for a low back disability. Specifically, he asserts that such disability arose as a result of his service-connected left knee disability (previously rated as degenerative arthritis, now rated as status post total knee replacement). The Board notes that service connection is also in effect for a right knee disability (previously rated as degenerative arthritis, now rated as status post total knee replacement) and bilateral hip disabilities (degenerative joint disease) as secondary to left knee disability. Thus, the Board has also considered whether any currently low back disability may be related to these service-connected disabilities. Pertinent VA law and regulations provide that 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. 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 Allen v. Brown, 7 Vet. App. 439, 448 (1995). Evidence of record reflects that the Veteran first sought compensation benefits for a low back disability in April 1991 when he filed a claim for a "low back condition" secondary to his left knee disability. Despite the Veteran's own lay assertions of a disability, medical evidence dated during this period fails to reveal any diagnosed condition. Rather, the first medical evidence of low back problems is a March 1993 VA neurology note which reflects complaints of pain in the right hip and low back (as well as the left knee). No diagnosis is provided, however, and subsequent records fail to show any lumbar pathology other than left lumbar radiculopathy in November 1996 and February 2003. Treatment records from the Veteran's private neurosurgeon, Dr. Dey, reflect a new complaint of right lumbar paraspinal pain in December 2007. Subsequent records show a diagnosis of lumbar spondylosis (or arthritis). VA treatment records, including an August 2008 orthopedic note, also indicate a diagnosis of moderate degenerative joint disease of the lumbar spine. X-ray evidence dated July 2011 indicates diffuse osteopenia of the lumbar spine; this finding is confirmed by an August 2011 DEXA scan. As noted, the relevant inquiry in this case is whether any of the Veteran's currently diagnosed lumbar spine disabilities - i.e., arthritis and/or osteopenia - are caused or aggravated by any of his service-connected disabilities. See 38 C.F.R. § 3.310. Here, to aid in its determination, the VA obtained medical opinions regarding these questions. The first examination report, dated in February 2010, reflects that the Veteran has an extensive history of bilateral knee disability which eventually led to total knee replacements in 2003 and 2004. These surgeries did not have good results and the Veteran continued to have instability of the knees requiring ambulation with long leg braces and a walker. In fact, treatment records show that the Veteran has experienced severe difficulty walking for many decades and that a motorized scooter was ordered for him in July 2008. Following an examination and interview of the Veteran, as well as a review of the claims file, the February 2010 VA examiner opined that the arthritis of the lumbar spine is "less likely as not a result of a service connected condition" because radiographic evidence demonstrated "usual wear and tear arthritis . . . without axial loading stressors (i.e. postural instability of the spine)." It was also noted that there was evidence of other factors, including weight gain, construction work, and post-service injuries, which might contribute to arthritis. Given that the February 2010 examiner did not address the issue of aggravation, the Board returned this appeal to the RO in September 2011 for further opinion. The November 2011 VA examination report reflects that the Veteran was again examined and diagnosed with lumbar degenerative disc disease with arthritis as well as osteopenia of the lumbar spine. Regarding the Veteran's degenerative disc disease and arthritis, the examiner agreed with the conclusion and rationale of the February 2010 examiner that lumbar spine arthritis is "less likely as not related to any service connected orthopedic condition." Once again, no opinion regarding aggravation was provided. See El-Amin v. Shinseki, __ Vet. App. __, No. 10-3031 (U.S. Vet. App. Jan. 15, 2013), slip. op. at 5 (holding that an examiner's opinion that the claimed disability was "related to" factors other than a veteran's service-connected disability did not clearly encompass a discussion of aggravation when the remaining opinion focused solely on direct causation). Following the Board's remand in September 2011, additional evidence - namely, private treatment records from Dr. Dey - was added to the claims file which was received at the RO in October 2010, but not forwarded to the Board for its review. As discussed previously, such records reflect a new complaint of right lumbar paraspinal pain in December 2007, diagnosed as lumbar spondylosis (or arthritis). Pertinent to this determination, these records also contain Dr. Dey's professional assessment as to the etiology of the Veteran's complaints and disease. Specifically, Dr. Dey indicates that the Veteran's new back pain is "likely secondary to lumbar facet osteoarthritis secondary to antalgic gait and use of cane." Stated another way, the Veteran's "back pain [is] secondary to lumbar spondylosis due to his abnormal gait mechanisms . . . as a result of the [bilateral] knee replacement." The Board observes that it must consider and weigh each of the aforementioned etiological opinions in determining whether the evidence demonstrates the Veteran's currently diagnosed arthritis of the lumbar spine is medically related to his service-connected disabilities. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (stating that 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). Here, both the February 2010 and November 2011 VA opinions are based upon full consideration of the Veteran's documented medical history and lay assertions and are supported by a clearly stated rationale. The opinion of Dr. Dey, however, also appears to be based upon the same medical history and lay assertions as there is evidence that Dr. Dey has been the Veteran's treating neurosurgeon for quite some time. Furthermore, Dr. Dey's opinion is also supported by a clearly stated rationale. The above evidence reflects that the probative weight of the conflicting medical opinions on the question whether the Veteran's lumbar spine arthritis is proximately due to his service-connected knee disabilities is in relative equipoise. The Board is required to resolve the reasonable doubt created by this approximately evenly balanced evidence in favor of the Veteran. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Entitlement to service connection for arthritis, secondary to service connected knee disabilities, is therefore warranted. Regarding the Veteran's osteopenia, the only opinion of record regarding the etiology of this disability is the November 2011 VA examination report. Such report indicates that it was the examiner's opinion that osteopenia is "at least as likely as not proximately due to or the result of the Veteran's service-connected condition." Specifically, the examiner explained that the Veteran has been living a highly immobile lifestyle over the last two to three years and that this immobility is directly due to the limitations imposed by his service-connected orthopedic disabilities. As a sedentary lifestyle is a known risk factor for osteopenia, and there is no evidence of such disability until recently, it is at least as likely as not due to the Veteran's service-connected disabilities. Moreover, even if not proximately due to these disabilities, the November 2011 VA examiner opined that osteopenia is, at a minimum, worsened by residual immobility. The VA examiner's opinion was reiterated in an April 2012 VA addendum report. As the November 2011 VA examiner explained the reasons for his conclusions, his opinion is entitled to at least some probative weight even though it is not a model of clarity. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Cf. Hogan v. Peake, 544 F.3d 1295, 1297-98 (Fed. Cir. 2008) (even if flawed because stated uncertainly, an opinion from a licensed counselor regarding the etiology of a claimant's psychological disorder must be considered as "evidence" of whether the disorder was incurred in service). As this is the only medical opinion that addresses whether the Veteran's osteopenia is proximately due to his service connected knee and hip disabilities, and it supports such a relationship, the weight of the evidence warrants entitlement to service connection for osteopenia of the lumbar spine as secondary to service-connected knee and hip disabilities. ORDER Service connection is granted for lumbar spine arthritis and osteopenia. ____________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs