Citation Nr: 1314923	
Decision Date: 05/06/13    Archive Date: 05/15/13

DOCKET NO.  10-40 598	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to service connection for a low back disorder, including degenerative disc disease (DDD) of the lumbar spine either as directly incurred in service or as secondary to a service-connected right knee disability.

2.  Entitlement to service connection for a left knee disorder, including arthritis with varus deformity, also as secondary to the service-connected right knee disability.

3.  Entitlement to service connection for a left hip disorder, including arthritis as additionally secondary to the service-connected right knee disability. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty (AD) from July 1954 to July 1958 and on active duty for training (ACDUTRA) in the National Guard from July 7-21, 1962.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a September 2009 rating decision of a Special Processing Unit ("Tiger Team") at the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  Whereas the RO in Detroit, Michigan, certified the appeal to the Board.

In March 2011 correspondence from the Veteran's representative, it was clarified that the Veteran is claiming entitlement to both direct and secondary service connection for his low back disorder, but only secondary service connection for his left knee and left hip disorders. 

In September 2012, the Board remanded the claims for specified evidentiary development, primarily to obtain VA medical nexus opinions concerning the etiologies of the claimed conditions, especially in regards to the theory of secondary service connection (i.e., as secondary to the service-connected right knee disability).  The requested development was completed in October 2012.

The Veteran also provided additional pertinent evidence to the RO (via the Appeals Management Center (AMC)) consisting of a private orthopedist's statement, private chiropractor's statement, and medical journal articles.  This new evidence was specifically designated for consideration by the Board in the first instance, so the Veteran in effect waived his right to instead have the RO/AMC initially consider this additional evidence.  38 C.F.R. § 20.1304.  In any event, the Board is completely granting the benefits sought in this appeal, also obviating need for the RO/AMC to initially consider this additional evidence.


Moreover, although in those filings the Veteran also requested a videoconference hearing before a Veterans Law Judge (VLJ) of the Board concerning his claims, given the entirely favorable disposition of this appeal as concerning each claim there likewise is no need to schedule this requested hearing.

Please also 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 & Supp. 2012).


FINDING OF FACT

There is competent and credible medical and other evidence for and against these claims that, at the very least, is equally probative of them, so it is just as likely as not the Veteran's low back, left knee, and left hip disorders are all attributable to his service-connected right knee disability.


CONCLUSION OF LAW

Resolving all reasonable doubt in his favor, his low back, left knee, and left hip disorders are secondarily related to his military service since proximately due to, the result of, or aggravated by his service-connected right knee disability.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2012), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2012).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so called "fourth" requirement that VA also specifically request that he provide any evidence in his personal possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

The Board is granting the complete benefits sought on appeal of entitlement to service connection for low back, left knee, and left hip disorders.  Hence, even assuming, without deciding, that any error was committed in notifying and assisting the Veteran with these claims, it is ultimately harmless, so non prejudicial.  38 C.F.R. § 20.1102.  This is because the claims are being granted, regardless.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (indicating VCAA notice and assistance errors are not presumptively prejudicial, even when shown to have occurred, rather, must be judged on an individual case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran bears this burden of proof of not only establishing error, but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim).  There simply is no such possibility in this instance.


Governing Statutes, Regulations, Precedent Cases, Background and Analysis

Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Active military service includes any period of active duty (AD) or active duty for training (ACDUTRA) during which the Veteran was disabled from disease or injury and any period of inactive duty training (INACDUTRA) during which the Veteran was disabled from injury - though not disease - or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training.  38 U.S.C.A. §§ 101(21), (22), (23), (24), 106, 1110, 38 C.F.R. §§ 3.6(a), (d), 3.303(a).  See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).

Whereas the Veteran had a two-week period of ACDUTRA in July 1962, he is not contending that any currently claimed disorder had its onset therein, or as a consequence of that relatively brief period of service.  Therefore, the Board will not reference any further the principles governing recovery where a claimed condition is averred to have had an association with a period of reserve duty service.

Certain diseases are considered chronic, per se, including arthritis, and therefore will be presumed to have been incurred in service if manifested to a compensable degree of at least 10-percent disabling within one year after service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a).  

Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required establish chronicity of disease or injury in service and in turn link current disability to service.  38 C.F.R. § 3.303(b).  However, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

In addition to the aforementioned theory of direct service connection, service connection also may be granted on a secondary basis for disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a).  In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability.  38 C.F.R. § 3.310(b).  See also Allen v. Brown, 7 Vet. App. 439 (1995).  Under the current version of § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. 

In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by the service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury.  These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder.  See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b).

Ultimately, though, the determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).  But establishing the required linkage between current disability and service alternatively by way of this continuity of symptomatology proof exception, is not available to conditions that are not specifically identified as "chronic" under 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

In its review and analysis of the record, the Board concludes that there is sufficient competent evidence upon which to substantiate grants of service connection for all three of the orthopedic disorders claimed by the Veteran, those of disorders of the lower back, left knee and left hip.  In so finding, the Board has not overlooked the consistent application of VA's benefit-of-the-doubt doctrine, wherein any reasonable doubt that arises on a material issue is to be resolved in the claimant's favor.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Applying the aforesaid doctrine, there is a compelling basis upon which to find, in all likelihood, that the current low back, left knee and left hip disorders each have an identifiable causal relationship to his existing service-connected right knee disability.  Hence, a grant of service connection is warranted for these disorders under a theory of secondary service connection. 

As to what the pertinent evidence comprises which substantiates this award of benefits, the Board observes, at the outset, that initial attempts to accurately assess the etiology of the claimed low back, left knee and left hip disorders through evaluation by a VA Compensation and Pension examination process did not yield dispositive results.  


Following a February 2009 VA examination of the spine, the examiner opined that the back and left knee disorders were not as likely as not due to the effects of short leg strain from right knee replacement.  A July 2010 addendum opinion further found that a low back disorder was not at least as likely as not related to military service (notwithstanding some instances of treatment for back pain in service).  However, no opinion was proffered as to whether the left hip condition was secondarily related to service-connected right knee problems; as well, no opinion was given specifically with regard to whether the service-connected right knee disability, even if not causing, nonetheless was aggravating the low back, left knee and left hip disorders.  See again, 38 C.F.R. § 3.303(b).  Thus, the Board's September 2012 remand directed that another addendum medical opinion be obtained on the dispositive issue of whether the Veteran's claimed low back, left knee and left hip disorders were secondarily related to his service-connected right knee disability, on the basis of causation, or chronic aggravation.  

Thereafter, an October 2012 supplemental opinion was obtained in which the VA examiner checked the appropriate designation (on the medical opinion database form) for stating that "[the] claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its nature progression by an in-service injury, event, or illness."  The stated rationale was as follows:

The etiology of claimed low back, left knee and left hip [disorders] is degenerative arthritis consistent with this Veteran's age at the time of this examination.  The Veteran did not have any symptomatic problem with the right knee while in service.  There is no record of left knee or left hip problems.  Left knee, low back and left hip conditions are independent.  Moreover, left knee had development deformity which also contributed to degenerative changes.  There is no aggravation of the conditions.


However, the Board has no basis from the opinion given to determine that the VA examiner made a definitive assessment on the subject of secondary service connection.  The essential opinion reached is couched in entirely different terms than secondary service connection -- that of whether a disorder pre-existing military service entrance underwent aggravation therein, and not the type of 
post-service aggravation that is contemplated under 38 C.F.R. § 3.310(b) where involving a claim for secondary service connection.  (Nor for that matter is there any implication from the record anywhere that the claimed disorders actually pre-existed the Veteran's military service.)  There also is no support from the opinion rationale upon which to find that the examiner properly addressed the issue of secondary service connection, including under theories of both initial causation and chronic aggravation.  

Apart from the inconclusive medical opinion evidence thus far, the Veteran also had submitted a private medical report dated from April 2009 in which the treating physician had indicated that the current "findings of advanced arthritis could possibly be due to chronic overload and overuse in compensation."  Nonetheless, such equivocal language in and of itself generally would not provide a sufficient basis upon which to premise an award of service connection.  See Morris v. West, 13 Vet. App. 94, 97 (1999) (diagnosis that appellant was "possibly" suffering from schizophrenia deemed speculative); Bloom v. West, 12 Vet. App. 185, 186-87 (1999); Obert v. Brown, 5 Vet. App. 30 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992); Winsett v. West, 11 Vet. App. 420 (1998).  

Since then, however, the Veteran has provided medical evidence from private treatment providers which substantially inures to the benefit of his claims.  The September 2010 correspondence from Dr. J.H.D., orthopedic and professor of medicine, states as follows:

[The Veteran] has been under my care for both knees.  His left knee has been getting worse over time with more severe and disabling pain.          He has weakness as well as instability.  His ability to walk is limited, and he has difficulties with stair climbing.  He states that his right knee became injured at Camp Grayling National Guard in July 1962.  This ultimately required right total knee replacement due to post-traumatic degeneration.  He has had problems with his low back as well as his left hip, secondary to this injury.  He currently is a candidate for left total knee replacement.  His left knee has been getting worse over time due to the overload that has been applied to the left knee because of his right knee condition.  Changes today show severe degeneration with associated varus malalignment. 
		
Moreover, September 2012 correspondence from Dr. J.W., chiropractor, indicates:
	
[The Veteran] has been patient of mine since September 2009.  Over the course of the three years that I have treated [him], I have found numerous instances where his left knee has been a problem that has either had a direct or indirect cause to some of his hip and low back problems.  ...[Following in-service injury to the right knee] subsequently [the Veteran] walked with a limp over the course of many years and osteoarthritis developed in the right knee, which he eventually had to have totally replaced in April 2007.  While this replacement was successful and results were favorable, the left knee would have had to take on extra burden for the 45 years leading up to 2007. 

Currently, [the Veteran] has a functional muscle imbalance of the left hamstring as it tests weak from a kinesiological evaluation.  This, in turn, has led to hip and knee instability with concomitant sciatic flare-ups.         I have treated [his] low back and hips on a semi-frequent basis.  However, the functional weakness of the hamstring persists.  I feel that this is a result of his altered gait pattern that was in place for many years, as a result of his right knee limp and then subsequently accelerated the osteoarthritis and pain in the left knee.  

It is abundantly clear from both private medical providers' correspondence that the claimed left knee disorder is considered to have originated secondarily to service-connected right knee disability, as a consequence of overuse injury designed to compensate for underlying right knee pathology over a time period of several decades post-service.  

The opinions then diverge somewhat on what caused the remaining low back and left hip conditions -- the orthopedist considers them secondary to service-connected right knee disability, whereas the chiropractor finds the left knee pathology (itself now deemed secondarily incurred) as the more likely causative agent.  Regardless, both opinions provide an avenue for secondary service connection for claimed low back and left hip disorders.  

These opinions together substantiate service connection for the claimed low back, left knee and left hip conditions. The Board notes application of VA's benefit-of-the-doubt doctrine here, inasmuch as there limited rationale provided for some of the conclusions reached therein, and perhaps further clinical inquiry with attendant physical examination could be completed.  As indicated, moreover, a VA examiner previously ruled out the requisite secondary medical relationship on the grounds of causation (if not also according to aggravation of nonservice-connected disability by a service-connected disability).  Regardless, there is now a definitive basis upon which to predicate service connection in the statements proffered, and attributing full credibility, weight and probative value towards the more recently provided medical opinion evidence.  At the very least, the evidence is in a state of relative equipoise, with that preponderating for the claim evenly balanced with that against the claim on the determinative subject of causation, under which circumstances the claimant must prevail.  See 38 U.S.C.A. § 5107(b).  See also, Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).    

Thus, by competent medical opinion evidence, the criteria for service connection for low back, left knee and left hip disorders are effectively met.  



ORDER

Service connection for a low back disorder, secondary to the service-connected right knee disability, is granted.

Service connection for a left knee disorder, including arthritis with varus deformity, also as secondary to the service-connected right knee disability, is granted.

Service connection for a left hip disorder, including arthritis as additionally secondary to the service-connected right knee disability, is granted. 




____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs