Citation Nr: 1311012 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 12-33 391 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to service-connected left knee patellofemoral arthritis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD H. Seesel, Counsel INTRODUCTION The Veteran had active service from October 1953 to December 1953. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. After the issuance of the September 2012 SOC, a private physician's statement was submitted in March 2013 accompanied by a waiver of the RO's initial consideration of the evidence. Because the appellant has submitted a written waiver of review of that evidence by the agency of original jurisdiction, referral to the RO of the evidence is not required. 38 C.F.R. § 20.1304(c). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran has been shown to currently have degenerative disc disease of the thoracolumbar spine that is related to his service-connected left knee patellofemoral arthritis. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, degenerative disc disease of the thoracolumbar spine is proximately due to or the result of his service-connected left knee patellafemoral arthritis. 38 U.S.C.A. § 1110(West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In the present case, the RO sent a notification letter to the Veteran dated in July 2009. The record also includes the Veteran's service treatment records, private treatment records, a VA examination report, and lay statements. The Board has considered whether further development and notice under the VCAA or other law should be undertaken. However, given the results grant of the claim in the decision below, further development would not result in a more favorable result for the Veteran or be of assistance to this inquiry. Hence, no further notice or assistance is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd sub nom. Smith v. Principi, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Law and Analysis The Veteran seeks service connection for a back disorder. Specifically, he contends that he developed a low back disorder due to an altered gait from his service-connected left knee patellofemoral arthritis. Having carefully considered the claim in light of the record and the applicable law, the Board concludes that service connection is warranted for a back disorder. Service connection will be granted if it is shown that a Veteran has a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury was incurred in service alone is not enough. Instead, there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Generally, to prove service connection, the record must contain evidence concerning: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and a disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In certain cases, competent lay evidence may demonstrate the presence of any of these elements. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Several alternative paths to service connection exist for certain chronic diseases identified in 38 C.F.R. §3.309(a), such as arthritis. Service connection may be awarded if a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition, unless the condition is clearly attributable to intercurrent causes. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.307, 3.309; see Walker v. Shinseki, ---F.3d ---, No. 2011-7184, 2013 WL 628429, *5-6 (C.A. Fed. Feb. 21, 2013) (finding that "§3.303(b) is constrained by §3.309(a), regardless of the point in time when a Veteran's chronic disease is either shown or noted, in that the regulation is only available to establish service connection for the specific chronic diseases listed n §3.309(a)."). If, however, a chronic disease is noted during service but is either not chronic or the diagnosis could be questioned, then a showing of continuity of related symptomatology after discharge is required in order to grant service connection. 38 C.F.R. §§ 3.303(b); Walker, 2013 WL 628429, at * 4. 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 a service-connected disease or injury. 38 C.F.R. § 3.310(a). 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). 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. Id. Service connection cannot be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 38 C.F.R. § 3.310(b). Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002). In the present case, an August 2010 x-ray confirms the presence of degenerative disc disease of the lumbar and thoracic spine. As such, the Veteran has a current disability. The Veteran is also service-connected for left knee patellofemoral arthritis. Thus, the remaining question is whether there is competent evidence of a nexus between the Veteran's current degenerative disc disease of the thoracolumbar spine and his service-connected left knee patellofemoral arthritis. "Competent medical evidence" means evidence that is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a). "Competent lay evidence" is defined as any evidence not requiring that the proponent have specialized education training or experience but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran submitted a July 2009 statement from P.S.T., D.C. (initials used to protect privacy) in support of his claim. Dr. T. explained that he had treated the Veteran for over 10 years for chronic back pain and opined that it was secondary to the service-connected left knee disorder. In particular, Dr. T. stated that the Veteran's posture and gait had been substantially altered due to the knee condition and indicated those changes had a direct effect on the stability of his back and hips. Dr. T. related that, due to the left knee condition, the Veteran had increased back pain with prolonged standing or walking. The Veteran was afforded a VA examination in August 2010 in connection with his claim. The Veteran related that he first noticed back discomfort 10 to 15 years ago, and the examiner noted that his gait appeared normal on examination. The examiner reported that, when the Veteran stood erect in stocking feet, the pelvis was level and there was no paralumbar muscle spasm. The examiner concluded that the left knee problem was less likely than not the cause of the back disorder and instead indicated that the back was related to time and age. In a December 2012 statement, Dr. T. explained that he had treated the Veteran for over 12 years and had closely monitored the symptom pattern, structural changes, muscle guarding, gait, and general musculoskeletal age-related degeneration. Dr. T. disagreed with the August 2010 VA examiner and reported that the pelvic range of motion, and therefore the gait, changed considerably after a spinal pelvic manipulative treatment. The Veteran had undergone treatment prior to the VA examination, and Dr. T. thought this may have caused the examiner to believe that the Veteran's gait was normal. Moreover, Dr. T. indicated that the Veteran's gait was far worse than what would be considered normal for his age. The Veteran had severely limited sacroiliac and lumbosacral range of motion, which impacted pelvic flexion and hip extension, affected his ability to complete his stride, and required him to rotate the pelvis to compensate for the lack of motion. Dr. T. explained that performing altered motion on a consistent basis torques the lumbar spine causing additional strain to the degenerated joints. Dr. T. reiterated that he believed the lack of normal motion was directly related to the Veteran's gait being changed due to knee pain. It is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence. See Owens v. Brown, 7 Vet. App. 429, 433 (1995)(noting it is the responsibility of the Board to assess the credibility and weight to be given to evidence); Gabrielson v. Brown, 7 Vet. App. 36, 39 (1994). In the evaluation of evidence, VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)(holding that credibility can be impeached generally by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). The Board also has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Here, there is a VA examination report in which the examiner described a normal gait and opined the current back condition was related to age and time. On the other hand, there are two positive opinions from a private chiropractor who indicated that the Veteran had an altered gait from the left knee, which caused his back disorder. The private chiropractor reviewed the VA examination report, examined the Veteran, and supported his opinion with clinical findings Based on the foregoing, it cannot be said that a preponderance of the evidence is against the Veteran's claim. Therefore, the Board finds that the evidence raises at least a reasonable doubt as to whether the Veteran's current back disorder was caused or aggravated by a service-connected disability. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Thus, for the reasons described above, the Board concludes that there is a reasonable doubt as to whether the Veteran's current back disorder was caused or aggravated by his service-connected left knee disability. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board concludes that service connection for degenerative disc disease of the thoracolumbar spine is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for degenerative disc disease of the thoracolumbar spine is granted. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs