Citation Nr: 1304096 Decision Date: 02/05/13 Archive Date: 02/08/13 DOCKET NO. 04-38 834 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a low back disability. 1. Entitlement to service connection for a right knee disability, to include on a secondary basis. 3. Entitlement to service connection for a left knee disability, to include on a secondary basis. REPRESENTATION Appellant represented by: Jaya Shurtliff, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty from November 1979 to March 1980. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that concluded new and material evidence had not been received to reopen a claim for service connection for a low back disability. This rating decision also denied service connection for disabilities of each knee. A July 2006 decision of the Board found that there was new and material evidence, and reopened the claim for service connection for a low back disability. The matter was remanded for additional development of the record. This case was again before the Board in July 2007, January 2008, August 2011 and in January 2012, and was remanded on each occasion for additional development of the record and/or to ensure due process. The issues of service connection for a right knee disability and a left knee disability, both to include on a secondary basis, are addressed in the REMAND portion of the decision below and are REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT Affording the Veteran the benefit of the doubt, degenerative changes of the thoracolumbar spine had their onset in service. CONCLUSION OF LAW Degenerative changes of the thoracolumbar spine were incurred in active service. 38 U.S.C.A. § 1131, 5107 (West 2002); 38 C.F.R. § 3.303(b) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In light of the fully favorable finding with regard to the claim for service connection for a low back disability, no further discussion of compliance is warranted at this time. Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service connection may be granted to a Veteran for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for a 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). In order to prevail on the issue of service connection on a direct-incurrence basis there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). On a report of medical history in November 1979, the Veteran denied recurrent back pain. A clinical evaluation of the spine was normal on the entrance examination in November 1979. The report of medical history in February 1980, in conjunction with the separation examination, shows the Veteran reported she had recurrent back pain. It was noted in the physician's summary that after she entered service, she developed pains in the right side of her abdomen and back. The spine was normal on the separation examination. The Veteran was seen two days later and reported radiating pain from her right side to the lower portion of the back. Still later in February 1980, the Veteran complained of pain in her back from her sides to the spine and then down. It was indicated she had been sick with low back pain and abdominal pain since November. There was no history of trauma. An examination demonstrated inconsistent tenderness over the thoracic paravertebral muscle. The impression was the physical examination was essentially within normal limits. A possible muscle spasm was noted. An X-ray of the lumbosacral spine was interpreted as negative by the radiologist. The examiner indicated it showed spondylolisthesis and spina bifida. In a statement dated September 2002, the Veteran related she slipped and fell into a foxhole during basic training. She stated she was treated for a back injury in service and upon separation, at a VA medical center. She maintains she has had continual problems with her back following her discharge from service. The Veteran underwent a laminectomy and discectomy at a private facility in January 2004. The diagnosis was herniated disc, L4-5 on the right, and L5-S1 on the left. As noted in the January 2012 remand, the VA examinations conducted up to that point were not adequate to address the claim for service connection for a low back disability. Either the examiner failed to provide an opinion, or the proferred opinion was not accompanied by a rationale. The Veteran was again examined by the VA in February 2012. The Veteran again described her in-service injury, noting she was on crutches for two weeks and then a cane for another two weeks. The diagnosis was chronic back pain. In light of her credible assertions, the examiner was to assume the Veteran fell into a foxhole in service, and that she was treated for back complaints within one year of her separation from service. The examiner commented that after a careful review of the records, interview and examination of the Veteran, as well as a search of literature, it was his opinion the Veteran did not have spondylolisthesis of the thoracolumbar spine. He also stated the Veteran did not have spina bifida of the thoracolumbar spine, but if it did exist, it pre-dated service. In each case, the examiner noted that recent studies did not show these conditions. The examiner further concluded the Veteran had thoracolumbar disc disease. He opined that the Veteran's thoracolumbar degenerative changes were at least as likely as not related to service. He added it was also at least as likely as not that the thoracolumbar degenerative changes pre-dated service and are related to a 1976 motor vehicle accident. With respect to disc extrusions, the examiner asserted it was less likely as not that they were caused by or a result of service, and is more likely a gradual, age-related condition. He observed that he could not resolve the question as to whether the discectomy of the lumbar spine was as least as likely as not related to service without resorting to mere speculation. Finally, the physician commented that the Veteran's reflex sympathetic dystrophy and fibromyalgia are not related to service. He observed that reflex sympathetic dystrophy was shown after a job-related injury years after service, and that fibromyalgia was diagnosed after service and, therefore, is not related to service. In May 2012, the examiner who conducted the February 2012 VA examination opined that the Veteran's discectomy was less likely as not caused by or a result of service, to include falling into a foxhole in service. He commented the back condition and discectomy were related to an injury in 1985. The Veteran has consistently maintained she slipped and fell into a foxhole during basic training and sustained an injury to her low back. As noted above, while there is no documentation of such an injury in the service treatment records, the record does show she reported back pain. Following the comprehensive VA examination in February 2012, the examiner concluded that thoracolumbar degenerative changes are related to service. The Board acknowledges he added that it was also at least as likely as not that such changes were related to a motor vehicle accident in 1976, prior to service. The Board points out, however, that while an automobile accident in 1976 was reported at the time of the entrance examination in November 1979, it was indicated the Veteran fractured ribs in this accident. There was no reference to an injury to the low back. Resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for degenerative changes of the thoracolumbar spine is warranted. The Board notes that this does not include spondylolisthesis, spina bifida or residuals of a discectomy, as these were specifically excluded by the VA examiner in 2012. ORDER Service connection for degenerative changes of the thoracolumbar spine is granted. REMAND The Veteran also asserts service connection is warranted for each knee. She argues that she injured her knees in the same incident in which she injured her low back. In the alternative, she claims a bilateral knee disability is secondary to her service-connected low back disability. The February 2012 VA examination concluded a left knee disability was not related to service. However, there is no indication the examiner considered whether it was secondary to the Veteran's low back disorder, and it does not appear any opinion was rendered regarding her right knee. In Allen v. Brown, 7 Vet. App. 439 (1995), the United States Court of Appeals for Veterans Claims held that "disability" as set forth in 38 U.S.C.A. § 1110 (West 2002) "refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, shall be compensated." Thus, when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See also 38 C.F.R. § 3.310(b). The August 2012 supplemental statement of the case refers to VA outpatient treatment records from the Upstate New York Healthcare System from September 20, 2002 through August 28, 2012; however, those records are not in the claims folder nor do they appear in the Veteran's Virtual VA folder. The last medical records on Virtual VA are records from the Upstate New York Healthcare System, but those records were noted to have been scanned into the record in March 2012. On remand, any outstanding VA treatment records must be associated with the record. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA records pertaining to the Veteran, especially records from the Upstate New York Healthcare System dated after March 1, 2012. 2. After completion of the foregoing, send the claims folder, including any recently received VA treatment records, to the examiner who conducted the February 2012 VA examination. The examiner should be requested to furnish the following opinions: (a) Is it at least as likely as not (50 percent probability or higher) that the Veteran's right knee disability was incurred in or aggravated by service? (b) Is it at least as likely as not (50 percent probability or higher) that the service-connected low back disability caused or aggravated (permanently worsened the underlying disorder beyond its normal course) the diagnosed bilateral knee disability. If aggravation occurred, the examiner should quantify, if possible, the extent to which the disability was aggravated. The examiner is informed that aggravation is defined for legal purposes as a chronic worsening of the underlying condition versus a temporary flare-up of symptoms, beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of knee disability present (i.e., a baseline) before the onset of the aggravation. The rationale for any opinion should be set forth. If the examiner who conducted the February 2012 VA examination is not available, schedule a VA orthopedic examination and request the examiner respond to the question set forth above. 3. Following completion of the above, the RO should review the evidence and determine whether the Veteran's claim may be granted. If not, she and her representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs