Citation Nr: 1305374 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 98-07 188A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left total knee replacement. 2. Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to April 1972. He had service in the Republic of Vietnam. This case was before the Board of Veterans' Appeals (Board) in October 2006, December 2009, and June 2011. Each time, it was remanded for further development. In September 2012, following the requested development, the VA Appeals Management Center (AMC) in Washington, D.C. considered the Veteran's claim of entitlement to service connection for a psychiatric disorder, claimed as PTSD. The AMC found that the Veteran did not meet the full criteria for a diagnosis of PTSD. However, the AMC did find that the evidence supported a grant of entitlement to service connection for depressive disorder, not otherwise specified. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (Although a claimant may identify a particular mental condition on the claims form accompanying his application for VA benefits, the scope of the claim cannot be limited only to the condition stated, "but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim."). Effective December 19, 1996, the AMC assigned a 50 percent rating for depressive disorder, not otherwise specified. The AMC raised that rating to 70 percent, effective December 12, 2002. As to the grant of service connection for a psychiatric disorder, that action was considered a full grant of benefits sought. Accordingly, the Board has no further jurisdiction over that issue, and it will not be considered below. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101 (2012). In November 2012, following the requested development, the AMC confirmed and continued it denials of entitlement to service connection for a left total knee replacement and for a lumbar spine disorder. Thereafter, those issues were returned to the Board for further appellate action. Unfortunately, after reviewing the record, the Board finds that additional development of the record is warranted with respect to the issue of entitlement to service connection for a left total knee replacement. That issue is addressed in the REMAND section at the end of this decision. FINDING OF FACT The Veteran's low back disorder, primarily diagnosed as lumbar strain and degenerative disc disease, is proximately due to or aggravated by his service-connected right total knee replacement. CONCLUSION OF LAW The criteria for secondary service connection for a low back disorder have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b) (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues of entitlement to service connection for a low back disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In December 1996, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment and personnel records, records reflecting multiple VA examinations performed from April 1973 through November 2012, records reflecting his treatment after service by VA and non-VA providers, and the transcript of a December 1998 hearing held at the RO before a VA hearing officer. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support his claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Indeed, in January 2013, he reported that he had no further evidence to submit. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran argues that he has a low back disorder primarily the result of his service-connected right total knee replacement. After reviewing the record, the Board agrees. Therefore, service connection is warranted, and, to that extent, the appeal will be granted. The Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110. Generally, to be entitled to service connection, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during active service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). Service connection may also be granted when the evidence shows that a particular disability is proximately due to or the result of a disability for which service connection has already been established. 38 C.F.R. § 3.310(a). Any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). In this regard, the Board notes that in May 1973, the VARO in Jackson, Mississippi granted the Veteran's claim of entitlement to service connection for internal derangement of the right knee. The RO assigned a 10 percent rating, effective April 17, 1972. The Board acknowledges that the Veteran is competent to relate give testimony about what he experienced in and after service. For example, he is competent to report when his low back pain started and whether or not it has been chronic. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, as a lay person, he is, generally, not qualified to render opinions which require medical expertise, such as the diagnosis of those symptoms or the cause of a particular disability. 38 C.F.R. § 3.159(a); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Nevertheless, in certain instances, lay evidence may be competent and sufficient to establish a diagnosis of a condition. Indeed, competent lay evidence may be used to establish a medical condition, including causation. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b), 38 C.F.R. § 3.307(b), and its prior holdings in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay observation. 38 C.F.R. § 3.159(a). A review of the evidence discloses that the Veteran's service treatment records, as well as the reports of his September 1970 service entrance examination and the report of his April 1972 service separation examination, are negative for any complaints or clinical findings of a low back disorder of any kind. Although the Veteran complained of occasional back pain during an April 1973 VA examination, chronic, identifiable low back pathology was not reported until July 1985, when a VA examination revealed the presence of lumbosacral strain. The examiner stated that the Veteran's lumbosacral strain was due to his knee problem. During the July 1985 examination, X-rays revealed a very minimal degree of double curved scoliosis. During VA examinations in October 1982, March 1983, January 1984, and July 1985, it was noted that the Veteran walked with a right sided limp. In October 1987, VA treated the Veteran for low back strain. The Veteran thought that his low back disorder was probably due to his right knee disorder, and the VA health care provider thought that the Veteran was probably right. That month, a VA health care provider also reported that the Veteran had degenerative joint disease in his lumbar spine. During a May 1988 VA examination, a CT scan confirmed the presence of a herniated nucleus pulposus at L5-S1. In June 1993, after he fell at a construction site, the Veteran sustained a left tibial plateau fracture. The Veteran was admitted to Grady Memorial Hospital, where an MRI revealed ligamentous injuries of the left knee. Thereafter, the Veteran underwent reduction and fixation of the left tibia. During VA physical therapy in April 1994, it was noted that the Veteran's left lower extremity was shorter than his right. In February 1996, a bone scan of the Veteran's left knee was negative for infection. It did show increased bone activity in the medial left tibial plateau suggestive of a fracture. The relative coolness in that area showed that the Veteran had undergone avascular necrosis. There was severe degenerative arthritis in both knees. Records from the Georgia Baptist Hospital show that in April 1996, due to the severity of the arthritis in his left knee, the Veteran underwent total left knee replacement. In February 1997, A. B. L., M.D., reported that an unspecified chronic knee problem had aggravated the Veteran's back condition, including degenerative disc disease. In November 1997, following a VA examination, the examiner found no shortening of the Veteran's lower extremities, when measured from the mid-line of the public symphysis to the lower border of the medial malleolus. The difference when measured from the superior border of the patella to the medial malleolus due to prior knee surgery and a total knee replacement. The examiner concluded that since the leg lengths were equal, it was unlikely that the Veteran's back disorder had been aggravated by his knee condition. The examiner sated that even if the Veteran were to prefer one knee over the other, he had reportedly had multiple injuries to the low back over the last 25 years. Not only that, but the examiner noted that the Veteran had a history of a left total knee replacement and limping, causing some strain on the lower back. Overall, the VA examiner concluded that the Veteran's low back was objectively and functionally normal. In January 1999, the Veteran was admitted to Emory University Hospital for right knee pain due to degenerative joint disease. He underwent a total right knee replacement. In June 1999, reports from the Emory Spine Center and Emory clinic show that the Veteran's back and leg pain were due to lumbar stenosis and degenerative disc disease. In May and June 2001, during treatment at Emory Healthcare, the Veteran's left lower extremity was found to be 1 to 1 1/2 inches shorter than his right, status post bilateral total knee replacements. The Veteran reported low back pain which was felt to be due to mechanical factors secondary to the leg length discrepancy associated with the Veteran's bilateral total knee replacements. In April 2003, the Veteran was reexamined by VA. He walked in such a manner as to reduce the weight on both knees. Following the examination, the examiner felt that it was as likely as not that the Veteran's back disorder was due to his service-connected right knee condition, as a result of uneven weight distribution throughout the years. VA outpatient treatment records, dated in November 2004 and December 2005 show that the Veteran's total knee replacements could be contributing to his backache. In December 2012, VA examined the Veteran to determine the etiology of any back disorder found to be present. X-rays confirmed the presence of degenerative disc disease from L2 through L5. The examiner opined that it was not likely due to the Veteran's service-connected right knee disorder. In so opining, the examiner stated that the Veteran's primary low back disorders were scoliosis and spinal stenosis. The examiner noted that scoliosis was developmental and unrelated to trauma and that generalized stenosis was degenerative in nature and not related to knee conditions. The evidence such as the reports of the July 1985 and April 2003 VA examinations and a VA treatment record from October 1987 and private treatment records from May 2001 show that it is at least as likely as not that the Veteran's low back disorder, including lumbar strain and degenerative disc disease, is related to the right sided limp which was present since approximately 1982. Evidence to the contrary such as the reports of VA examinations in May 1988, November 1997, and December 2012 suggest that the Veteran's low back disorder is due to stenosis or scoliosis rather than strain or to the limping associated with the Veteran's left total knee arthroplasty in 1996. As noted above, however, the Veteran's limp and leg length discrepancy have been present for many years and predated the Veteran's left leg fracture in 1993 and the total knee arthroplasties in 1996 and 1999. The earlier examiners and health care providers generally attributed the Veteran's low back disorder to his service-connected right knee disorder. On balance, such evidence tends to favor the Veteran's claim of entitlement to service connection for a low back disorder secondary to his service-connected right knee disorder. At the very least, there is an approximate balance of evidence both for and against the claim that his low back disorder is proximately due to his service-connected right knee disorder. Under such circumstances, all reasonable doubt is resolved in favor of the veteran. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102. Accordingly, service connection for a low back disorder is warranted; and, to that extent, the appeal is allowed. ORDER Entitlement to service connection for a low back disorder, diagnosed as lumbar strain, degenerative joint disease, and degenerative disc disease at L5-S1, is granted. REMAND The Veteran also seeks entitlement to service connection for a left total knee replacement. The primary thrust of his contentions is that it is proximately due to or has been aggravated by his service-connected right knee disorder. 38 C.F.R. § 3.310. In its June 2011 remand, the Board directed the AMC to schedule the Veteran for an examination, in part, to determine whether the Veteran currently has any left knee disorder etiologically related to his service-connected right knee disorder. It was requested that the examiner state whether the Veteran's service-connected right knee disorder CAUSED OR AGGRAVATED (permanently worsened) any current left knee disorder. Unfortunately, the examiner did not respond to the inquiry as to whether the Veteran's service-connected right knee disorder had AGGRAVATED any left knee disorder found to be present. Such a deficiency suggests less-than-full compliance with instructions in the Board's remand and is potentially prejudicial to the Veteran's appeal. As such, it must be remedied. Stegall v. West , 11 Vet. App. 268 (1998). Accordingly, the issue of entitlement to service connection for a left knee disorder is REMANDED for the following actions: 1. Return the case to the VA examiner who examined the Veteran's knees in December 2012. Request that he review the record and provide an opinion must render an opinion as to whether it is at least as likely as not that the Veteran's left total knee has been AGGRAVATED by his service-connected total right knee replacement. A non-service-connected disease or injury will be considered to have been aggravated by a service-connected disorder when any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. Please note, temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). With respect to any opinion, the examiner must state how and why he reached the opinion he did. 2. If the VA examiner who examined the Veteran's knees in December 2012 is unavailable, schedule the Veteran for an orthopedic examination to determine the nature and etiology of his left total knee replacement. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. Following the examination, the examiner must render an opinion as to whether it is at least as likely as not that the Veteran's left total knee replacement is PROXIMATELY DUE TO OR HAS BEEN AGGRAVATED by his service-connected total right knee replacement. The principles related to aggravation are noted in Section 1. It must be emphasized, however, that with respect to any opinion, the examiner must state how and why he or she reached the opinion they did. If an additional examination is scheduled, the Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, the notice informing him of the date, time, and location of the examination must be associated with the claims folder. If the notice is returned by the Post Office as undeliverable, that fact must be noted in writing and also associated with the claims folder. 3. When the actions requested have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to service connection for a total left knee replacement. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs