Citation Nr: 1322685	
Decision Date: 07/16/13    Archive Date: 07/24/13

DOCKET NO.  05-25 076	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to service connection for a lumbar disorder, to include secondary to residuals of a total right knee replacement.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mary E. Rude, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1951 to January 1953.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  In September 2009, the Board denied entitlement to service connection for a back disorder, to include as secondary to residuals of a total right knee replacement.

In a May 2011 memorandum decision, the United States Court of Appeals for Veterans Claims vacated the Board's September 2009 decision and remanded the claim for readjudication consistent with the memorandum decision.  In December 2011 and November 2012, the Board remanded the case for further evidentiary development.  The case is now again before the Board for adjudication.

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 evidence is in equipoise as to whether the Veteran's current lumbar disorder is related to residuals of a total right knee replacement.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, a lumbar disorder is proximately due to or the result of residuals of a total right knee replacement.  38 U.S.C.A. §§ 1110, 5103 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a) (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act

The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  In light of the fact that the Board allows the benefit sought, discussion of the notice and assistance requirements of the VCAA and a detailed explanation of how VA complied with the Act is unnecessary.  

Relevant Laws and Regulations

The Veteran seeks entitlement to service connection for a lumbar disorder, which he asserts was either caused or aggravated by residuals of a total right knee replacement and post-traumatic osteoarthritis.  The Veteran injured his right knee in a truck accident while on active duty in 1952, and he was granted entitlement to service connection for right knee post traumatic osteoarthritis in November 2002.  After undergoing a total right knee replacement in January 2004, the Veteran's service-connected disability was recharacterized, and he was granted entitlement to service-connection for residuals of a total right knee replacement.

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d). 

Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation.  Id; see also 38 C.F.R. § 3.310(b).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

Analysis

In this case, the Veteran's medical records clearly show that he has a current lumbar spine disability.  A private September 2004 MRI showed that the Veteran had left paracentral and lateral disc herniation at L4-5 causing left lateral recess stenosis and significant foraminal stenosis and a degenerative disc at L5-S1.  In December 2004, the Veteran was diagnosed with mechanical low back pain, and an August 2005 private medical record diagnoses the Veteran with degenerative changes in the thoracic and lumbar spine

The Veteran's VA treatment records show that he has been treated for lower back pain and degenerative disc disease since at least April 2004.

In October 2008, the Veteran was afforded a VA examination with a physician specializing in orthopedic surgery.  The examiner reviewed the claims file, discussed the Veteran's history, and examined the appellant.  He diagnosed chronic low back pain and multiple level lumbar degenerative disk disease with lateral disk herniation at L4-L5.  He stated that he was unable to establish a relationship between this disorder and the Veteran's right knee disability, finding that it was "a process of aging and wear and tear."  The examiner, however, failed address whether it was "at least as likely as not" that the Veteran's back disorder was caused by his right-knee disorder, or to discuss whether the right knee disability was aggravated by a service-connected disability.

In January 2012, the Veteran was afforded an additional VA examination by a physician who was the co-director of an orthopedic section.  The examiner reviewed the claims file and discussed the Veteran's in-service knee injury.  After examining the Veteran, the examiner stated that many of the osteoarthritis changes of the lumbar spine could be attributed to the appellant's history of prolonged abnormal walking.  The examiner ultimately concluded that the Veteran's lumbar disorder was as likely as not caused by his service-connected knee disability, stating that ambulating with an asymmetric gait for many years had "certainly aggravated his low back arthritis."

The case was again remanded in November 2012, in part to clarify the January 2012 VA examination opinion.  In January 2013, the record was reviewed by a physician assistant who found that the Veteran's lumbar disorder was at least as likely as not proximately due to or the result of his service-connected condition.  The examiner explained that the record provided considerable evidence of a long-term abnormal gait pattern caused by his knee condition, and medical literature supports a correlation between an abnormal gait pattern and consequential increased strain on the lower back.

Because the January 2013 opinion did not discuss the issue whether the lower back disorder was aggravated by service-connected disabilities, in April 2013 the case was sent for review and opinion by a doctor of podiatric medicine.  In April 2013, the podiatrist discussed the Veteran's medical history and records, including spine X-rays from April 2004 and January 2012.  The podiatrist opined that the Veteran's back condition was less likely than not proximately due to his right knee condition and less likely than not aggravated beyond its normal aging process.  The podiatrist referred to medical literature that indicated the great likelihood of an increase in degenerative changes in men over the age of 60 and stated that "a life-long lived could expect this type of symptomatology." 

Considering the pertinent evidence above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for a lumbar disorder secondary to residuals of a total right knee replacement is warranted.

It is the responsibility of the Board to assess the credibility and weight to be given the evidence.  Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)).  The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). 

When reviewing such medical opinions, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995).  The Board may not, however, reject medical opinions based on its own medical judgment.  Obert v. Brown, 5 Vet. App. 30 (1993).  In assessing medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998).  Other 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.  See Prejean v. West, 13 Vet. App. 444, 448-49 (2000).

In this case, the Board must first reject the 2013 opinion from the podiatrist as incompetent.  Podiatry is the branch of medicine devoted to the study of diagnosis, medical and surgical treatment of disorders of the foot, ankle, and lower extremity.  Dorland's Illustrated Medical Dictionary, 1468 (30th ed. 2003).  The Board sees nothing in this definition that suggests that podiatrists treat or comment on the etiology of back disorders.  See Black v. Brown, 10 Vet. App. 279, 284 (1997) (the Board must consider the health care provider's knowledge and skill in analyzing the medical data.)  

Second, while the October 2008 examiner, an orthopedic surgeon, failed to discuss the question of aggravation of the Veteran's back disorder by his service-connected right knee disability, he examined the appellant, reviewed the claims file, and came to the conclusion that his back disorder was due to the natural process of aging.  The January 2012 VA examiner also specialized in orthopedics, personally examined the Veteran, and reviewed the claims file.  He ultimately opined that the Veteran's lumbar spine disorder was as likely as not caused by residuals of a total right knee replacement and that an asymmetric gait aggravated low back arthritis.

Finally, the January 2013 examiner found that the Veteran's lumbar spine disorder was caused by his service-connected total right knee replacement, due to the long-term abnormal gait pattern it created.  

As such, the evidence includes competent opinion evidence of favoring the existence of a medical nexus between the Veteran's lumbar spine disorder and residuals of a total right knee replacement.  Hence, entitlement to service connection is granted.


ORDER

Entitlement to service connection for a lumbar spine disorder is granted.



____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs