Citation Nr: 1317645 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 07-17 444 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disorder, to include secondary to bilateral knee disorders. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from April 1993 to April 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Upon review of this case, the Board notes that the issues of entitlement to increased ratings for postoperative residuals of a partial tear of the left medial meniscus and right knee anterior cruciate ligament reconstruction have been addressed in prior Board decisions of May 2010 and June 2011. Accordingly, those issues are no longer before the Board. The issue of entitlement to service connection for a chronic low back disorder was previously before the Board in May 2010 and June 2011, on which occasions it was remanded for additional development. The case is now, once more, before the Board for appellate review. FINDING OF FACT A chronic low back disorder, to include arthritis, was neither shown in service, nor for many years thereafter, nor is it the result of any incident or incidents of the Veteran's period of active military service, nor is it in any way causally related to a service-connected disability, including service-connected disabilities of the right and left knees. CONCLUSION OF LAW A chronic low back disorder was not incurred in or aggravated by active military service, it is not proximately due to, the result of, or aggravated by a service-connected disability or disabilities, including right and left knee disorders; and spinal arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2002); 38 C.F.R. §§ 3.103, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) In the case at hand, the requirements of the Veterans Claim Assistance Act of 2000 (VCAA) have been met. There is no issue as to whether the Veteran was provided an appropriate application form, or the completeness of his application. VA notified the Veteran in October 2006 and May 2010 of the information and evidence needed to substantiate and complete his claim, to include notice of what part of that evidence was to be provided by him, and what part VA would attempt to obtain. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate his claim, and as warranted by law, affording VA examinations. Currently, there is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, there is currently no error or issue which precludes the Board from addressing the merits of the Veteran's appeal. Finally, in reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file, to include testimony presented at a hearing before the undersigned Veterans Law Judge in January 2010, as well as service treatment records, and both VA (including Virtual VA) treatment records and examination reports. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to that claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).. Service Connection The Veteran in this case seeks entitlement to service connection for a chronic low back disability. In pertinent part, it is contended that the Veteran's current low back disability is in some way causally related to his service-connected right and left knee disabilities. In that regard, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. Service connection may also be granted for any disease initially diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303. In order to establish service connection for a claimed disability, there must be competent evidence of that disability; medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and competent evidence of a nexus between the claimed inservice disease or injury and the current disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303. Service connection may also be granted for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year following separation from active duty. 38 C.F.R. §§ 3.307 ,3.309(a). Finally, service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. The United States Court of Appeals for Veterans Claims (Court) has held that when aggravation of a Veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected to the extent of the aggravation. See Allen v. Brown, 7 Vet. App. 439, 446 (1995). Disabilities which are proximately due to or the result of a service-connected disease or injury are to be granted service connection. When service connection is thus established for a secondary condition, the secondary condition is to be considered a part of the original condition. See 38 C.F.R. § 3.310. In the present case, service treatment records disclose that in December 1993 the Veteran was seen with a complaint of lower back pain on the right side of two days' duration. When questioned, the Veteran indicated that he had been playing football, and "twisted it." The Veteran denied any history of prior back problems or injury. The pertinent diagnosis noted was right side lower lumbar muscle strain. In January 1994, the Veteran was heard to complain of lower lumbar back pain. The Veteran denied any specific injury, and similarly denied any pinching sensations or problems with bowel movement or urination. When further questioned, the Veteran described his back symptomatology as a "dull, achy pain." He denied any numbness or tingling in his lower extremities. Radiographic studies of the Veteran's low back were described as normal. The clinical assessment was low back pain. Approximately two weeks later, the Veteran was once again seen with a complaint of back pain after "humping" (marching). According to the Veteran, he had picked up his pack by bending over, and not using his legs. The Veteran indicated that the aforementioned incident had occurred approximately one month ago. Physical examination yielded a diagnosis of lower lumbar muscle strain. In February 1994, the Veteran was seen with a complaint of worsening lower back pain of approximately two months' duration. The Veteran stated that he was now also experiencing sharp pains in the lower thoracic area. According to the Veteran, his pain felt as if it were radiating more to the right side. The clinical assessment was lower thoracic muscle strain on the right side. A service clinical record dated in mid-July 1994 reveals that the Veteran was seen at that time for a complaint of low back pain of two days' duration. The clinical assessment was once again lower lumbar muscle strain. In May 1996, the Veteran was seen for a complaint of "back spasm." According to the Veteran, he had been involved in an auto accident while on leave two days earlier. When questioned, the Veteran indicated that he was diagnosed at the time with back spasm. By the Veteran's account, he was able to get out of his car to give the police a report, and he then proceeded to the hospital for evaluation. However, following his return home, his back reportedly "locked up" on him. The clinical assessment was lumbar strain of the paraspinal muscles on the right side. At the time of a service separation examination in March 1997, the Veteran indicated that he was unsure whether he had ever had, or currently had, recurrent back pain. A physical examination of the Veteran's spine and musculoskeletal system conducted at that time was within normal limits, and no pertinent diagnosis was noted. A VA general medical examination conducted in June 1997 did not diagnose a back disorder. In point of fact, the earliest clinical indication of the postservice presence of chronic low back pathology is revealed by a VA spine examination dated in December 2006, almost 10 years following the Veteran's discharge from service, at which time the claims folder was reviewed "in its entirety." At the time of examination, the Veteran complained of low back pain which was "sharp" in nature and worse when walking. According to the examiner, the Veteran was claiming that his low back pain was secondary to his right knee anterior cruciate ligament deficiency. The Veteran denied any numbness or weakness. While he walked with a limp, he did not utilize any assistive device. By the Veteran's own admission, he had experienced no incapacitating episodes in the past 12 months. Following a physical examination the pertinent diagnosis was myofascial lumbar spine. In the opinion of the examiner, the Veteran's lumbar spine problems were not caused by his right knee anterior cruciate ligament deficiency, given that his gait abnormality was not sufficient to cause any type of lower lumbar pain. Moreover, according to the examiner, the Veteran's low back problems were more likely than not due to abnormal lifting, given that he worked as a mechanic at the local army depot. Under the circumstances, it was "more likely" that the Veteran's low back problems were the result of the type of job he held rather than his knee. At an August 2010 VA spine examination it was noted that the Veteran's claims folder was available, and had been reviewed. When questioned, the Veteran indicated that his back pain had been present for 10 years. He further indicated that, in his opinion, his back problems were due to his limping, favoring the right knee, in addition to "some left knee problems." When further questioned, the Veteran indicated that he had been told that this was the result of muscle imbalance, and was "midline without radiculopathy." Following a physical examination the pertinent diagnosis was myofascial lumbar syndrome. In the opinion of the examiner, the Veteran's back disorder was less likely than not caused by or related to his service-connected knee disorders. This was felt to be the case given that a review of orthopedic literature revealed no peer review studies which supported the contention that post-traumatic degenerative changes of a joint could induce degenerative changes in the spine at any level. On subsequent VA spine examination in September 2011, the Veteran complained of pain in his back which had developed approximately four years earlier. According to the Veteran, his low back pain radiated into the right sacroiliac area, occurred a daily basis, and lasted most of the day. Occasionally, the Veteran's low back pain would reportedly extend down to his right foot, with accompanying numbness. The Veteran denied any incapacitating episodes over the course of the past year. Physical examination yielded a clinical impression of chronic lumbosacral strain. In the opinion of the examiner, there was no evidence that the Veteran's service-connected knee conditions caused his lumbar disease. In that regard, radiographic studies of the Veteran's lumbar spine were within normal limits. While the Veteran did have a mild limp, in the opinion of the examiner, this was not significant enough to cause any back trouble. Accordingly, the examiner opined that it was less likely than not that the Veteran's back pain was secondary to his bilateral knee disorders. In October 2012, a VA examiner provided an independent medical opinion regarding the alleged relationship between the Veteran's service-connected knee conditions and his claimed low back pathology. According to the examiner, the opinion was being provided following a review of the Veteran's clinical files, radiographic studies, and medical records. Following that review, it was the opinion of the examiner that it was "less likely than not" that the Veteran's current low back condition was incurred in active military service, or caused by, aggravated by, proximately due to, or the result of the Veteran's service-connected bilateral knee condition. The examiner noted that his opinion was in full agreement with that of prior compensation and pension examiners on two prior occasions. The rationale provided for the independent medical opinion was that, while the Veteran's active duty records documented a need for conservative care of lower back strain early in his career, his presentation appeared to be consistent with overuse, or "sports-related." Moreover, the Veteran's clinical symptomatology in 1994 was limited to muscle strain, and resolved with conservative therapy. Under the circumstances, the Veteran's active duty records lacked sufficient evidence to suggest any chronic or longstanding residual problems resulting from his overuse or sports-generated lower back strain. Moreover, the aforementioned episodes of back pain were early in the Veteran's career, and conservatively treated with medication and rest. According to the evaluating examiner, the Veteran left active duty without back strain. Secondly, the Veteran's separation records failed to demonstrate any complaint of lower back pain or discomfort. Third, the examiner found no medical records for the period from 1997 to 2006 pertaining to any residual lower back condition. Fourth, there was little to no change in the clinical symptomatology in the Veteran's claimed lower back pain during the period from 2006 to 2011, as demonstrated by various compensation and pension examinations. Significantly, the examinations in question were consistent with the following objective clinical findings: normal range of motion on flexion, extension, and rotation; DeLuca criteria performed without complications on all joints and structures; and neurovascular muscle strength within normal limits, with no evidence of spasm, in conjunction with normal tests of straight leg raising, a normal gait cycle, and normal radiographic studies. In conclusion, the examiner opined that the aforementioned objective clinical findings were consistent with the natural and normal consequences of the Veteran's aging process rather than his service-connected knee pathology. Moreover, his symptomatology was stable and unchanged since 2006, and radiographic studies were within normal limits for both joint and soft tissue construction. In January 2013, the Board requested the opinion of a VA medical expert regarding the relationship, if any, between the Veteran's claimed low back pathology and his service-connected postoperative residuals of right knee anterior cruciate ligament reconstruction and partial medial meniscus tear of the left knee. That expert, in January 2013, opined that, in response to the question whether the Veteran currently suffered from a chronic, clinically-identifiable low back disability, the appellant suffered from no such low back disability. As a rationale for that opinion, the evaluating physician indicated that the Veteran's record showed treatment received both during and after active duty for complaints of low back pain. More specifically, the records indicated that the Veteran presented in December of 1993 with complaints of right-sided low back (pain) secondary to a football injury. He presented in January 1994 for low back strain, with no specific injury noted. Finally, he presented in July 1994 following "humping" the previous month with complaints of low back pain at that time. According to the evaluating physician, the inciting events for the aforementioned presentations of low back pain were specific to the events noted (i.e., football and "humping"). While the Veteran voiced complaints of pain, there were no other associated issues, no radicular complaints, and no evidence of any significant incapacitation. In the opinion of the examiner, the aforementioned events all resolved with conservative management. Moreover, none resulted in clinically identifiable low back disability, and none persisted, as shown by the medical records. The Board finds the opinions of VA examiners highly probative, because those opinions were based, for the most part, upon a review of the Veteran's entire claims folder, as well as other pertinent medical records, and full examinations, including both history and clinical findings. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (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). The VA examiners reviewed the Veteran's claims folder, discussed his medical history, provided well-reasoned medical opinions, and alluded to the evidence which supported those opinions. Hernandez-Toyens. Under the circumstances, the Board finds that the probative medical evidence of record preponderates against finding that the Veteran's current low back pathology had its origin during his period of active military service. Nor has it been demonstrated that the Veteran's low back pathology is in any way causally related to his service-connected knee disabilities. In evaluating the Veteran's claim, the Board has a duty to assess the credibility and weight to be given to the evidence of record. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). In that regard, the Veteran has attributed his current low back pathology to his service-connected right and left knee disabilities. However, not until August 2006, almost 10 years following his discharge from service, did the Veteran file a claim for service connection for such disability. As noted above, to the extent that the Veteran does, in fact, suffer from chronic lumbar pathology, pertinent evidence of record is to the effect that such pathology is unrelated to his active military service, or his currently service-connected bilateral knee disabilities. At least insofar as direct service connection is concerned, the passage of many years between discharge from service and medical documentation of a claimed disability as in this case, is a factor which tends to weigh against a claim for service connection. See Maxon v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, in the case at hand, there is no persuasive evidence suggesting a link between the Veteran's current low back pathology and his period or periods of active military service, or, for that matter, his service-connected knee disabilities. The Board acknowledges the Veteran's testimony regarding the origin of the disability at issue. However, the Board rejects the Veteran's assertions to the extent that they seek to etiologically relate his current low back pathology to his active military service, or service-connected knee disabilities. The Veteran's statements and history, when weighed against the objective evidence of record, are neither credible nor of particular probative value. The Veteran, as a lay person, is not competent to create the requisite causal nexus for his current low back pathology. Rather, evidence which requires medical knowledge must be provided by someone qualified as an expert by knowledge, skill, experience, training, or education, none of which the Veteran possesses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Based on the aforementioned, the Board is unable to reasonably associate any current low back disorder with any incident or incidents of the appellant's service, or with a service-connected disability or disabilities, including a bilateral knee disability. Accordingly, entitlement to service connection for a low back disorder must be denied. ORDER Entitlement to service connection for a low back disorder is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs