Citation Nr: 1312433 Decision Date: 04/15/13 Archive Date: 05/02/13 DOCKET NO. 03-35 395 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for the claimed low back disorder, to include as secondary to service-connected instability of the right knee. REPRESENTATION Appellant represented by: Louis D. Turco, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. E. Wilkerson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to September 1988. This matter initially arose before the Board of Veterans' Appeals (Board) on appeal of a December 2002 rating decision by the RO. In May 2006, the Board denied the Veteran's claim for service connection for low back disorder. The Veteran appealed the May 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In November 2007, the Court issued a Memorandum Decision setting aside the Board's decision denying the claim of service connection, and remanding the matter to the Board for further proceedings consistent with the Memorandum Decision. The Board remanded the case to the RO for additional development, via the Appeals Management Center, in May 2008 and February 2011. In March 2012, the Board again remanded the case for the purpose scheduling the Veteran for hearing. In February 2013, the Veteran presented testimony before the undersigned Veterans Law Judge at a hearing at the RO. A transcript of the hearing is of record. A review of the Veteran's Virtual VA electronic claims file reveals a copy of the Veteran's Board hearing testimony, but no other additional records. FINDING OF FACT The currently demonstrated degenerative disc disease L5-S1 and L4-5 with herniated disc at L4-5 is shown as likely as not to have been aggravated by the service-connected right knee disability. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his disability manifested by degenerative disc disease L5-S1 and L4-5 with herniated disc at L4-5 is proximately due to or the result of the service-connected instability of the right knee. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act (VCAA) The 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 & Supp. 2012)) 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) (2012). To the extent that the action taken hereinbelow is fully favorable to the Veteran, the Board finds that further discussion of VCAA is not required at this time. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see Allen v. Brown, 7 Vet. App. 439, 448 (1995). The provisions of 38 C.F.R. § 3.310 were amended effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744 -47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen, the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). In terms of competency, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flatfoot). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran asserts that his low back condition was either caused or aggravated by his service-connected right knee disability. He reports having right knee disability that led to an altered gait and weight bearing, placing additional stress on his low back. The service treatment records include a Mach 1987 notation reflecting that the Veteran reported that he fell on his back while playing Frisbee. He complained of having a sore back and associating this complaint with breathing and noting that he thought he broke his ribs. An assessment of bruised muscle was indicated. There are no other records of treatment for back pain, although the Veteran did report occasional low back pain on March 1988 report of medical history. There were no abnormalities with respect to the spine found on March 1988 discharge examination. Following the Veteran's discharge from service, a July 2002 VA outpatient treatment report noted that the Veteran complained of pain in the low back when sitting for a long time or when he got up in the morning. A history of arthritis of the right knee with questionable secondary involvement of the left knee and the lumbosacral spine was noted. At a VA examination in December 2002, the Veteran reported having back pain for the previous 4 to 5 years. He had more discomfort due to the fact that he stood all day at his place of work. After an examination and a review of the claims file, the examiner noted that he found it difficult to associate the service-connected right knee as being the cause of the Veteran's back complaints. He noted that the Veteran worked for the post office, which encompassed lifting activities. A September 2003 MRI of the lumbar spine revealed mild loss of intervertebral disc height and mild facet arthropathy at L1-2 and L2-3. Disc desiccation and loss of intervertebral disc height with mild facet arthropathy were observed at L3-4 and L4-5. Degenerative changes were seen at L3-4 and L5-S1. A March 2004 report from the Florida Orthopedic Specialists reflects the Veteran's history relating his back pain to his right knee problems and altered gait. The treatment provider noted that it was true that his right knee problem could have exacerbated his back problems. There was noted to be no specific definitive connection, although it was reasonable to assume that it did exacerbate his back problems. In a June 2004 statement, Dr. S. of the Florida Orthopedic Specialists noted that, upon review of records and examination of the Veteran, he determined that it was at least as likely as not that the Veteran's knee condition and degenerative spine conditions began while he was in service. The RO requested that Dr. S. clarify this opinion and specify what records and examination he was referring to in the June 2004 opinion. In response, Dr. S. indicated that he reviewed the MRI report and previous radiographic reports in formulating his opinion. In a June 2008 statement, the Veteran's wife indicated that he had experienced problems with his back and knee since she had known him and that the problems seemed to be worsening. On VA examination in August 2008, the Veteran reported experiencing the gradual onset of low back symptoms beginning in 1996. The examiner diagnosed lumbar spondylosis. After the examination and a review of the claims file, the examiner determined that the Veteran's right knee disability did not cause or aggravate his low back disability. The VA examiner noted that he based his opinion on the Veteran's history, examination results, and on his own clinical expertise and experience as an orthopedic surgeon. A December 2008 MRI report reflects an impression of disc protrusions at L4-5 and L5-S1 with mild nerve root impingement. There was mild central canal stenosis at both levels. There was moderate foraminal stenosis at L5-S1. A slight rotary leftward curvature of the lumbar spine was also noted. A December 2008 report from Treasure Coast Orthopedics reflects the Veteran's complaints of knee and lumbar spine pain. Diagnosis of disc protrusions at the L4-5 and L5-S1 levels were indicated. The Veteran expressed that he wanted to document that he was having problems with the other knee and his back due to his right knee. A January 2009 chiropractic report reflects that the Veteran had asked whether or not the injury received to his knee could have aggravated his pain throughout the low back area. The chiropractor indicated that any changes in gait pattern would affect the condition in the low back area, possibly leading to advanced degenerative disc changes. A January 2009 report from private physician Dr. M. reflects that he told the Veteran that he would be glad to say that this knee problem certainly could aggravate his back and opposite knee. On a May 2009 VA examination and July 2010 addendum examination, the Veteran reported the onset of back pain sometime in 1999 or 2000. He described the low back pain as radiating into the left lower extremity. A wide-based gait and guarding of knee movement, bilaterally, were indicated. After an examination and x-ray study, a diagnosis of disc space narrowing at L4-L5 and L5-S1 levels, mild loss of intervertebral disc height on L1, L2 and L3, and partial disc desiccation and loss of intervertebral disc height with slight bulging of the intervertebral disc at L3-4 and L4-5 was noted. The examiner determined that it was less likely that the lumbar spine disability was secondary to the right knee disability. He based his opinion upon review of the test results, history, physical examination and clinical common sense. He noted that the MRI findings suggested significant wear and tear of the lumbar spine itself, predisposed and facilitated by his occupational activities. He found it not possible to state if the service-related incident in 1987 was initiating factor of his back condition because if he complained of recurrent back pain in 1988, the VA outpatient treatment notes dated his symptoms as starting in 1997. An October 2010 treatment report from Dr. P. reflects the Veteran's complaints of low back pain. The Veteran stated that he felt that his limping due to his knee problems caused his increased back pain. On examination, Dr. P. observed a mild antalgic gait on the left side. The X-ray studies of the lumbar spine revealed significant degenerative changes at L4-5 and milder changes at L5-S1 with no significant spondylosis. An MRI revealed findings of severe degenerative disc disease at L5-S1 and a significant disc herniation at L4-5, both centrally and laterally. Dr. P. noted that the Veteran's asked if his back problem could be related to his knee problem and that he responded that it was certainly possible that his walking in an altered status caused him to have an unbalanced gait aggravating his back, but it was hard to say that this was the exact complete cause. He found it more likely to be an aggravating factor. In May 2011, the Veteran's claims file was reviewed by a medical specialist for the purpose of providing an opinion as to the etiology of the claimed low back disorder. After review, he opined that the service-connected right knee condition less likely as not caused the increased severity of any identified condition of the lumbar spine. In so finding, the reviewer noted that the finding were the result of degenerative changes involving the lumbar spine itself and not likely due to a knee condition that treatment and examination reports showed to have been normal on x-ray study and showing no instability on examination. The additional treatment records from Dr. P. dated through October 2011 reflected treatment of a bilateral knee condition and low back disability. An October 2011 MRI of the right knee revealed mild type 2 degenerative intermeniscal signal of the posterior horn of the medial meniscus and mild suprapatellar joint effusion with mild distal patellar tendinopathy. A November 2011 medical questionnaire from Dr. P. reflects that he diagnosed the Veteran with severe degenerative disc disease L5-S1 and L4-5 with large herniated disc L4-5. With respect to the Veteran's knees, he noted diagnosis of bilateral osteoarthritis with bilateral medial meniscus tears. Dr. P. opined that it was at least as likely as not that the Veteran's lumbar spine condition was the result of his knee condition. In so findings, he noted that, because the Veteran could not walk easily or normally, this aggravated his back condition. During the February 2013 hearing, the Veteran reported having problems with his right knee that led to an altered gait and additional wear and tear on his back. He added that he experienced pain and stiffness in his back and functional problems including difficulty bending, kneeling, and stooping. He noted that he had not suffered from any injury or accident to the back. The Veteran also noted that a number of treating physicians had related his lumbar spine problems to his right knee problems. In sum, the record reflected a clear post-service diagnosis of low back disorder, currently diagnosed as degenerative disc disease L5-S1 and L4-5 with herniated disc at L4-5. As to the question of whether the Veteran's current degenerative disc disease L5-S1 and L4-5 with herniated disc at L4-5 was aggravated beyond its natural progression by his service-connected instability of the right knee, the record includes conflicting opinions. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). 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. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). However, the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). On review of the entire record, the Board finds the evidence to be in relative equipoise in showing that the current low back disorder as likely as not was aggravated by the service-connected right knee disability. The Board notes that most of the Veteran's private treating physicians have indicated that his right knee disorder would have aggravated his low back disorder. In particular, private physician Dr. P. found such a relationship more likely than not, and provided medical rationale for his opinion. While Dr. P. did not appear to have access to the Veteran's entire claims file, he has provided treatment for the Veteran and his opinion is supported by other treatment providers who have indicated that the Veteran's right knee disorder aggravates and exacerbates his low back disability. While the Veteran was afforded a number of VA examination, the only VA examiner to specifically address the question of secondary service connection on an aggravation basis based his opinion largely on the fact that recent examinations and treatment reports had revealed normal x-ray and instability right knee findings. However, the examiner did not have access to most recent MRI reports reflecting mild type 2 degenerative intermeniscal signal of the posterior horn of the medial meniscus and mild suprapatellar joint effusion with mild distal patellar tendinopathy, or Dr. P.'s statement that the Veteran had bilateral osteoarthritis with medial meniscus tears. Moreover, the examiner did not discuss how the Veteran's altered gait, as noted in treatment records and on examination, might have impacted on his low back. As such, this opinion is of limited probative value. In resolving all reasonable doubt in the Veteran's favor, service connection for the low back disability manifested by degenerative disc disease L5-S1 and L4-5 with herniated disc at L4-5, as secondary to the service-connected instability of the right knee, is warranted. ORDER Service connection for degenerative disc disease L5-S1 and L4-5 with herniated disc at L4-5 on a secondary basis is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge Board of Veterans' Appeals Department of Veterans Affairs