Citation Nr: 1319012 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 10-11 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to service connection for back disability, to include as secondary to right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to June 1960. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision by the Manchester, New Hampshire Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for back disability. In January 2013, the Veteran had a videoconference hearing before the undersigned Veterans Law Judge (VLJ). In February 2013, the Board remanded the case to the RO via the VA Appeals Management Center (AMC) for the development of additional evidence. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the Veteran's paper claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. 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 Veteran did not have back injury, disease, or symptoms during service. 2. Psoriatic arthritis diagnosed after service did not manifest to a compensable degree during the year following separation from service. 3. Traumatic and psoriatic arthritis of the right knee did not cause and have not aggravated psoriatic and degenerative arthritis and degenerative disc disease of the lumbar spine. CONCLUSION OF LAW The Veteran's back disability was not incurred or aggravated in service, may not be presumed to have been incurred in service, and was not proximately caused or aggravated by service-connected disability including right knee disability. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has a service-connected right knee disability initially described as arthritis. He underwent surgical total right knee replacement in August 2009. The Veteran essentially contends that his back disability developed as a result of his service-connected right knee disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Service connection for certain chronic diseases, including arthritis, may also be established based upon a legal presumption by showing that the disease manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Under § 3.310(b), any increase in severity of a non-service-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. See also Allen v. Brown, 7 Vet. App. 439 (1995). However, VA will not concede that a non-service-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the non-service-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 non-service-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. 38 C.F.R. § 3.310(b). The United States Court of Appeals for Veterans Claims (Court) has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has stated that, under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, subsequent manifestations of the same chronic disease or injury at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's service treatment records are silent for disease, injury, or complaints involving the back. The claims file does not contain records of medical treatment of the Veteran during the year that followed his separation from service. The claims file contains records of treatment of the Veteran from 1997 to 2010 by private physician D. E. T., M.D., a rheumatologist. Dr. T. treated the Veteran for psoriatic arthritis. In July 2000 Dr. T. noted that the Veteran had improvement of the symptoms in his knees and hands but continued to be limited by severe osteoarthritic changes in his lumbosacral spine. In January 2009, Dr. T. reported that he had followed the Veteran since 1976. He stated that before 1976 another physician diagnosed post-traumatic arthritis of the right knee and probable psoriatic arthritis as early as the 1960s. In 2009 and 2010 the Veteran received treatment, focusing on his right knee arthritis, from private orthopedist J. W. W., M.D. The Veteran informed Dr. W. of his psoriatic arthritis. In August 2009, Dr. W. performed right knee replacement surgery. In a February 2010 statement, Dr. T. expressed the opinion that the Veteran's right knee arthritis is related to injury during service in 1957. In VA primary care in February 2010, the Veteran reported a history of psoriatic arthritis since the 1960s. In treatment notes Dr. T. indicated that in August 2010 the Veteran was in a motor vehicle accident and sustained cervical and back injuries, providing evidence against this claim in that it indicates a post-service back injury. X-rays showed degenerative changes but no overt fracture. In August and September 2010 the Veteran had physical therapy for back pain at a VA Medical Center. In September 2010, a VA clinician observed that the Veteran used a walking stick and walked with an antalgic gait. In VA treatment in July 2011, it was noted that the Veteran had experienced recent falls. Lumbar spine MRI showed disc-based impingement changes at the L2 to L5 levels. Lumbar spine x-rays taken in January 2012 showed advanced degenerative changes. The Veteran had a VA examination of his right knee in July 2012. Examination revealed limitation of motion of the right knee. It was noted that the Veteran used a cane when walking. The examination report does not contain any description of the Veteran's gait. In the January 2013 Board videoconference hearing, the Veteran reported that his back pain had become substantially worse from about 1995 forward. He stated that his right knee disability now limited him to walking with very small steps, in order to avoid falls, and caused his capacity for walking to be very limited. He reported that he continued on medication for arthritis. He related that Dr. T. told him that the arthritis affecting his right knee would likely spread to other areas of his body. In the February 2013 remand, the Board obtained a VA examination with an opinion as to the likelihood that the Veteran's back disability was caused or aggravated by events during his service or by the right knee disability. The Veteran had a VA examination in April 2013. The examiner reported having reviewed the Veteran's claims file. The examiner found that the Veteran has multilevel degenerative disc disease and arthritis of the dorsolumbar spine. The examiner noted a history of insidious development of arthritic pains in various joints including the knee and back along with psoriasis. The examiner provided the opinion that it is less likely than not that the Veteran's back disorders were incurred in service. The examiner explained that there is no evidence of a back injury or condition during service. The examiner provided the opinion that it is less likely than not that the Veteran's back disorders were caused or aggravated by his right knee disability. The examiner explained that there was no evidence of aggravating fractures or influences from the right knee disability. The examiner stated that the degenerative condition of the Veteran's lumbar spine is a common inherent disease becomes symptomatic independent of other joint disease, providing evidence against the claim that this disability was caused secondary to the service connected disability, providing evidence against the claim of high probative weight. There is no evidence that the Veteran sustained lumbar spine injury or had lumbar spine disease during service. The lumbar spine disease found after service therefore was not incurred in service. There is evidence that the Veteran was found to have psoriatic arthritis as early as the 1960s, the decade following his service. There is no evidence, however, that his psoriatic arthritis manifested to a compensable degree during the year following his separation from service. The Board therefore does not presume that his psoriatic arthritis is service connected. The Veteran stated that Dr. T. told him that arthritic disease in his lower body would spread to other areas of his body. The claims file contains Dr. T.'s statements supporting service connection for right knee arthritis, noting that the Veteran sustained right knee injury during service. In the statements in the file Dr. T. did not address whether the Veteran's psoriatic arthritis was present during service. He did not indicate that service-connected right knee disability caused the Veteran's back arthritis. The VA physician who reviewed the file and examined the Veteran in April 2013 expressed the opinion that it is less likely than not that the Veteran's back disability was caused or aggravated by his right knee disability. That physician is competent to address questions of medical causation, and his opinions are persuasive. The record does not include any medical finding or opinion that the right knee disability caused or aggravates the back disability. The preponderance of the evidence, then, is against service connection on a secondary basis. As the Veteran's back disability did not begin during service, was not manifested to a compensable degree during the year following service, and was not caused or aggravated by his service-connected right knee disability, the Board denies service connection for back disability. Duties to Notify and Assist The RO provided the Veteran notice information in a January 2009 letter, issued before the February 2009 initial unfavorable decision on the claim for service connection for back disability. That letter addressed the information and evidence necessary to substantiate claims for service connection, and informed the Veteran how VA assigns disability ratings and effective dates. The letter also addressed who was to provide the evidence. In an April 2013 supplemental statement of the case, the AMC informed the Veteran what must be shown to establish service connection for a disability as secondary to a service-connected disability. The paper claims file and Virtual VA system contain the Veteran's service treatment records, post-service treatment records, reports of VA medical examinations, and a transcript of the February 2013 Board videoconference hearing. The reports of VA medical examinations are adequate to address the back disability service connection claim. In the January 2013 videoconference hearing, the VLJ fully explained the issue on appeal and suggested the submission of evidence that might have been overlooked. The VLJ thus complied with the duties of a VLJ at a Board hearing. See 38 C.F.R. § 3.103(c)(2) (2012); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010). In the February 2013 Board remand, the Board called for the Veteran to receive a VA medical examination with review of the file and opinion regarding the likely etiology of the Veteran's back disability. The Veteran had a VA examination in April 2013. The examination report contains findings and opinions that fulfill the Board's remand instructions. No further action is necessary to fulfill the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on its merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER Entitlement to service connection for back disability is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs