Citation Nr: 1311078 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 09-04 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE 1. Entitlement to service connection for a back disability, to include as secondary to the service-connected left knee disabilities. 2. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected left knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2012, the Board reopened the issue of entitlement to service connection for a back disorder and remanded that issue along with the issue of entitlement to service connection for a right hip disorder for further development. The issue of entitlement to a total disability rating based on individual unemployability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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). FINDINGS OF FACT 1. The evidence is in equipoise as to whether a back disability was caused by the service-connected left knee disabilities. 2. The evidence is in equipoise as to whether a right hip disability was caused by the service-connected left knee disabilities. CONCLUSIONS OF LAW 1. Resolving doubt in the Veteran's favor, a back disability was caused by the service-connected left knee disabilities. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.310 (2012). 2. Resolving doubt in the Veteran's favor, a right hip disability was caused by the service-connected left knee disabilities. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. Given the decision below, a detailed explanation of how VA complied with the Act is unnecessary. Governing law and regulations In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Notwithstanding the above, service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Prior to the Veteran filing his claim in August 2007, 38 C.F.R. § 3.310(b) was amended effective October 10, 2006 to provide the following as to aggravation of nonservice-connected disabilities: Any increase in 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. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b)). Analysis Back disorder VA examination reports and VA treatment records reflect diagnoses of lumbar spine degenerative joint disease, lumbar spine degenerative disc disease with associated spinal stenosis, residuals of lumbar transverse process fractures, bilateral sacroiliitis, and myofascial pain syndrome. As to direct service connection, neither the Veteran nor his representative has asserted that his back disability began in or is otherwise directly related to active service. In fact, they are only claiming that the back disorder is related to an altered gait from the service-connected left knee disabilities. The Board had reviewed the service and VA treatment records and VA examination reports. The service treatment records do not show any complaints of back symptomatology or treatment of a back injury, and a back disorder was not noted in the June 1967 medical board report. There is no evidence of a chronic disease as defined in 38 C.F.R. § 3.309(a) (2012), such as arthritis, within one year of separation from active service. Although the March 2012 VA examiner responded to an inquiry about whether a back disability preexisted service, the examiner's rationale reflects that she was discussing whether the myofascial pain syndrome was aggravated by the service-connected left knee disabilities. Thus, the preponderance of the competent medical evidence shows that the back disability was not incurred in or aggravated by active service. The Veteran's service-connected left knee disabilities are status post meniscectomy limitation of flexion due to traumatic arthritis, status post meniscectomy limitation of extension due to traumatic arthritis, and instability. The Board notes that there is an array of diagnoses as to the back disability (as reported above) and that there are conflicting opinions addressing whether particular diagnoses are related to the left knee disabilities. For example, an August 2008 VA treatment record reflects that a physician assistant opined that it was probable that the Veteran's antalgic gait due to the left knee pain caused the Veteran's sacroiliitis. In addition, in the February 2005 VA examination report, the VA examiner opined that the lumbar spine degenerative disc disease and degenerative joint disease were unlikely secondary to the left knee disabilities. While this examiner provide a basis for her opinion, her use of the term "secondary" did not adequately address whether a back disability was caused or aggravated by the left knee disabilities. In the March 2012 VA examination report, this same VA examiner opined in essence that the lumbar spine degenerative joint disease, lumbar spine degenerative disc disease with associated spinal stenosis, and residuals of lumbar transverse process fractures were not caused or aggravated by the service-connected left knee disabilities. However, the examiner did conclude that the myofascial pain syndrome was aggravated by the left knee disabilities to a degree of 20 percent. In short, one VA examiner concluded that the Veteran did have a disability of the lower spine (sacroiliitis) that was caused by his service-connected left knee disability, while another VA examiner concluded that most of the Veteran's spine disabilities were neither caused or aggravated by the service-connected left knee disability, but that one of the spine disabilities (myofascial pain syndrome) had been permanently aggravated by the knee disability. Given the complexity of his spine disability, and these conflicting opinions of record, the Board has considered whether further development is warranted to resolve this matter. That said, given that multiple opinions have already been sought; the fact that the claim has already been remanded once; and, most importantly, his poor health that led to the advancement of his case on the docket, the Board finds that further development is not necessary and would only needlessly delay adjudication of the claim. As the record now stands, particularly in light of the August 2008 opinion, the Board concludes that the evidence is at least in equipoise as to whether a current back disability was caused by the service-connected left knee disabilities. 38 C.F.R. § 3.102. Therefore, service connection by means of causation is in order. 38 U.S.C.A. §§ 1110, 5107. Right hip disorder VA examination reports and VA treatment records include a diagnosis of right trochanteric bursitis. As to direct service connection, neither the Veteran nor his representative has asserted that his right hip disability began in or is otherwise directly related to active service. In fact, they are only claiming that the right hip disorder is related to an altered gait from the service-connected left knee disabilities. In any event, the Board had reviewed the service and VA treatment records and VA examination reports. The service treatment records do not show any complaints of right hip symptomatology or treatment of a right hip injury, and a right hip disorder was not noted in the June 1967 medical board report. There is no evidence of a chronic disease as defined in 38 C.F.R. § 3.309(a) (2012), such as arthritis, within one year of separation from active service. Although the March 2012 VA examiner responded to an inquiry about whether a right hip disability preexisted service, the examiner's rationale reflects that she was discussing whether a right hip disability was caused or aggravated by the service-connected left knee disabilities. Thus, the preponderance of the competent medical evidence shows that the back disability was not incurred in or aggravated by active service. The March 2012 VA examiner opined that there was no right hip disability caused or aggravated by the service-connected left knee disabilities. The examiner's basis was that the degenerative changes were minimal and that the symptoms described by the Veteran do not suggest that the hip joint is the source of his discomfort. The examiner instead attributed to the discomfort to the myofascial pain syndrome. The examiner, however, indicated that the myofascial pain syndrome was solely due to the lumbar degenerative changes whereas with regard to the etiology of the back disability, she stated that the myofascial pain syndrome was aggravated in part by the left knee disabilities. Significantly, this examiner did not address the etiology of the right trochanteric bursitis while the August 2008 VA treatment record, on the other hand, reflects that a physician assistant opined that it was probable that the antalgic gait due to the left knee pain caused the right trochanteric bursitis. Given that the favorable 2008 opinion, and the fact that the VA examiner did not address the etiology of the right trochanteric bursitis, the Board finds that the evidence is equipoise as to whether a right hip disability was caused by the service-connected left knee disabilities. 38 C.F.R. § 3.102. Therefore, service connection by means of causation is in order. 38 U.S.C.A. §§ 1110, 5107. ORDER Entitlement to service connection for a back disability as secondary to the service-connected left knee disabilities is granted. Entitlement to service connection for a right hip disability as secondary to the service-connected left knee disabilities is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs