Citation Nr: 1319210	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  09-39 561	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida



THE ISSUE

Entitlement to service connection for a low back disorder.



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. Smith, Counsel




INTRODUCTION

The Veteran served on active duty from September 1976 to November 1996.
      
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In his October 2009 VA Form 9, Appeal to the Board of Veterans Appeals, the Veteran indicated that he wanted to testify at a hearing before the Board at the local RO.  However, he subsequently submitted an amended VA Form 9 wherein he withdrew his hearing request.  Therefore, the Board finds that there is no hearing request pending at this time.  See 38 C.F.R. § 20.702(e) (2012).

The Board also notes that the Veteran's appeal originally included the issues of entitlement to service connection for a right knee disorder and a right hip disorder.  However, in his October 2009 VA Form 9, the Veteran limited the appeal to the claim listed on the title page.  As such, the issues involving the right knee and right hip are not currently on appeal, and no further consideration is necessary.


FINDING OF FACT

The Veteran has been shown to currently have degenerative changes of the lumbar spine that are related to his service-connected left knee disability.


CONCLUSION OF LAW

Resolving all reasonable doubt in favor of the Veteran, degenerative changes of the lumbar spine are proximately due to or the result of his service-connected left knee disability. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). 

In the decision below, the Board has granted the Veteran's claim for service connection for a back disorder.  Therefore, the benefit sought on appeal has been granted in full.  Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92.


Law and Analysis

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131.  That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  Where a service-connected disability aggravates a nonservice-connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448.  Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a low back disorder.

The Veteran has contended that he currently has a low back disorder that is secondary to his service-connected left knee disability.  The Board notes that the Veteran is service-connected for a post-operative left knee replacement with a history of arthritis and an anterior cruciate injury.  He has also been diagnosed with a lumbar spine disorder.  Thus, the remaining question is whether there is a relationship between the Veteran's current low back disorder and his service-connected left knee disability.  

There is conflicting evidence regarding the etiology of the Veteran's current low back disorder.  In this regard, an April 2007 VA examiner reviewed the claims file and diagnosed him with a lumbar strain.  The examiner determined that his "R. knee and low back symptoms are less likely as not (less than 50/50 probability) caused by or a result of favoring service connected L knee. No report in c-file for injury to R knee or low back during active duty."  No further explanation or details were provided.

In August 2007, the Veteran was treated by his private physician for bilateral hip pain and chronic back pain.  The physician noted, "his gait affects the hips and back, exacerbating sx [symptoms]."

In a September 2008 private medical record, it was noted that the Veteran had a history of left knee surgery.  The physician wrote, "since then R knee has gotten painful and low back hurts. Altered gait/limps periodically."

In an October 2009 private medical report, a physician indicated that the Veteran was examined and that his VA records and private records from the Orlando Orthopedic Clinic were reviewed.  He also described a detailed history of the Veteran's medical problems, including past diagnostic studies.  In the "Summary" section of the report, he discussed the fact that the Veteran's service-connected left knee disability has progressively worsened over the years and was causing a significantly altered gait and eventually a total knee replacement.  The physician noted that the Veteran also has a long history of back pain and that he sustained several falls during service.  It was noted that Veteran's lumbar spine disorder had undergone progressive, degenerative changes, which paralleled the progressive decline of the left knee.  The physician observed that there had been no other significant injuries to the back since military service.  He concluded, "it is therefore more likely than not that his degenerative lumbar spine disorder is related to his 20+ years in the service and primarily a result of his altered gait and left knee injury."

The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record).  The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995).

Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current lumbar spine disorder is related to his service-connected left knee disability.

The negative evidence in this case consists of the opinion of the April 2007 VA examiner.  However, the examiner's conclusion that the Veteran's low back disorder is unrelated to his service-connected left knee disability is unsupported by any rationale.  Thus, the opinion has limited probative value.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 302 (2009).  The only explanation offered was the statement that there was no report in the claims file for an injury to the low back during active duty, which is irrelevant to the issue of secondary service connection.  It is also factually inaccurate.  In this regard, the Board notes that the Veteran's service treatment records show that he sought treatment in May 1986 for lower back pain that had an onset three days earlier when he injured his back during heavy lifting.  He was diagnosed with a back strain at that time.  The Veteran was also assessed as having low back pain in December 1995, and x-rays revealed degenerative changes of L4-L5 and narrowing of L4-L5 and L5-S1 space.   In January 1996, he reported having a history of low back pain, and he was diagnosed with degenerative disc disease L5/S1 and L4/L5.  This factual inaccuracy by the VA examiner further diminishes the probative value of the report.  See Black v. Brown, 5 Vet. App. 177, 180 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 460 (1993) (holding that medical opinions have no probative value when they are based on an inaccurate factual predicate.)  

In contrast, the October 2009 private medical report is adequate for the purposes of adjudication and is supported by the August 2007 and September 2008 private medical notes.  The physician did not indicate that the claims file had been reviewed, but a medical opinion may not be discounted solely because the examiner did not review the claims file.  Nieves-Rodriguez, 22 Vet. App. at 304.  Moreover, the relevant history was noted, and there is no showing that the reports provide a substantially different picture of the Veteran's disability than the other evidence in the claims file.  A review of the service treatment records corroborates back injuries during service, and the post-service medical record corroborates that no significant lumbar spine injuries have occurred since discharge.  His findings were factually accurate and fully articulated, and valid medical analyses were applied.  See Nieves-Rodriguez, 22 Vet. App. at 304.  The findings were fully supported by a rationale.  See Stefl, 21 Vet. App. at 124.

The Board acknowledges that the October 2009 report is not flawless for purposes of VA adjudication.  However, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted, and indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  

Thus, for the reasons described above, the Board concludes that there is at least a reasonable doubt as to whether the Veteran's current degenerative disease of the lumbar spine is causally or etiologically related to his left knee disability.  To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Accordingly, the Board concludes that service connection for degenerative changes of the lumbar spine is warranted.


ORDER

Subject to the provisions governing the award of monetary benefits, service connection for degenerative changes of the lumbar spine is granted.




____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs