Citation Nr: 1318415 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 11-09 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a lumbar strain with degenerative disc disease (herein referred to as "a low back disability"), to include as secondary to a service-connected bilateral knee disability. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Zenzano, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1954 to August 1956. This matter comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In March, 2013, the Veteran testified before the undersigned Veterans Law Judge via videoconference. A transcript of the hearing is of record. The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 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's low back disability was permanently aggravated by his service-connected bilateral knee disability. CONCLUSION OF LAW The criteria for service connection for a low back disability have been met. 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, without deciding that any error was committed with respect to the duty to notify or the duty to assist, such error was harmless and need not be further considered. II. Analysis The Veteran seeks service connection for a low back disability, which he asserts is due to either an in-service injury, or, as secondary to his service-connected bilateral knee disability. As set out below, the Board is awarding service connection on a secondary basis, such that the analysis will focus on the facts relevant to this theory of entitlement, and omits the moot discussion of direct service connection. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Service connection may also be granted on a secondary basis where a condition is aggravated by a service-connected disability. 38 C.F.R. § 3.310(b). To warrant service connection on a secondary basis, the evidence must show that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. In such instance, a veteran may be compensated for the degree of disability over and above the degree of disability which existed prior to the aggravation of the non-service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In October 1956, the Veteran was awarded service connection for a left knee disability, as due to an in-service football injury documented in his service treatment records. At the March 2013 hearing, the Veteran testified that he also injured his back during the in-service football injury, but did not worry about seeking treatment for his back at that time, due to the severity of his knee injury. In October 1996, the Veteran was awarded service connection for a right knee disability as secondary to his service-connected left knee injury. In June 2009, the Veteran underwent a VA examination where he was diagnosed with lumbar strain with degenerative disc disease of the lumbar spine and left lumbar radiculopathy. The examiner recounted the Veteran's pertinent medical history, to include the Veteran's report of injuring his back in service at the same time he injured his service-connected left knee, and conducted a thorough examination. Thereafter, he opined that: It is not likely his current lumbar condition is caused by his knee condition. It is more likely than not his lumbar disability is caused by conditions of service given his history and examination, provided his medical history is accurate. His left knee condition, however, has aggravated his lumbar disability recently in that his stance and position in part, weight shifting and abnormal body mechanics of stance as he stands in a left pelvic tilt is caused in part by his left knee condition. His lumbar condition appears to be related to service in a direct and causal manner...provided his history is accurate. VA treatment records reflect that the Veteran receives regular care for his claimed low back disability and service-connected bilateral knee disability, primarily from Dr. D.C. In a March 2011 treatment note, Dr. D.C. noted, "back pain is related to the knee problem and this has increased," and, "worsening arthritis pain contributed by his DJD of the knees." In July 2012, Dr. D.C. noted "low back pain getting worse secondary to the DJD of the knees has caused some of the pain." In November 2012, Dr. D.C. stated "a service connected knee injury, worsening low back pain with radicular pain into his pelvis area. This has increased. The patient's lumbar MRI showing DJD of the lumbar spine. Worsening symptoms of pain related to his knee injury that is service connected. Pain in the back is associated with problems in the knee due to the mechanics and walking..." In March 2013, Dr. D.C. submitted a statement, in which he opined that, "the back pain the Veteran suffers is from the problem with the knees due to the mechanical stress of the pelvic misalignment. The spine shows an increased arthritic condition from the stress." Here, the July 2009 VA examiner's opinion suggests, in part, that the Veteran's service-connected left knee condition has aggravated his low back disability. The multiple statements from Dr. D.C. track worsening back pain over the course of four years, attributable to the Veteran's service-connected knees. The Board finds the above findings to be highly probative evidence that the Veteran's low back disability has been aggravated by his service-connected knee disabilities, and that such aggravation is representative of a permanent worsening of the condition. This is apparent due to the Veteran's consistent complaints of low back pain, repeatedly attributed by Dr. D.C. to his service-connected knee disabilities, as opposed to simply due to the Veteran's low back disability itself. The Veteran's routine care for his low back disability reflects that which cannot be characterized as a temporary flare-up of symptoms, and as implied by Dr. D.C.'s statements, pain which is distinguishable from the natural progression of the Veteran's low back disability. Accordingly, the Board finds that the Veteran is entitled to service connection for his low back disability, as secondarily related to his service-connected bilateral knee disability. (CONTINUED ON NEXT PAGE) ORDER Service connection for a lumbar strain with degenerative disc disease, to include as secondary to a service-connected bilateral knee disability, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs