Citation Nr: 1324219	
Decision Date: 07/30/13    Archive Date: 08/07/13

DOCKET NO.  09-38 557	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for a low back disability, to include as secondary to service-connected residuals of shrapnel and gunshot wounds to the left femur and left knee. 

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities.


REPRESENTATION

Veteran represented by:	Florida Department of Veterans Affairs


ATTORNEY FOR THE BOARD

M. Moore, Associate Counsel



INTRODUCTION

The Veteran served on active duty from May 1966 to April 1972 with additional unverified National Guard service.

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, which granted service connection for residuals of shrapnel and gunshot wounds to the left femur and left knee to include degenerative joint disease of the left knee with embedded shrapnel and scars, assigning a 10 percent evaluation effective May 31, 2007, and tinnitus, assigning a 10 percent evaluation effective May 31, 2007; and denied service connection for degenerative arthritis of the lumbar spine and a malaria-type infection.  In December 2008, the Veteran submitted a notice of disagreement with the denial of service connection for his low back and evaluation assigned for his left leg.  He subsequently perfected his appeal in August 2009.

In March 2011, the Board remanded the Veteran's left leg and low back claims, as well as an inferred claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009), to the Appeals Management Center (AMC) for further evidentiary development, including obtaining updated VA treatment records and providing the Veteran with a notice regarding TDIU and a new VA examination and opinion.  In July 2012, the Board denied a rating in excess of 10 percent for the Veteran's service-connected left leg disability, as manifested by limitation of flexion, granted a separate 10 percent rating, effective October 1, 2009, for his service-connected left leg disability, as manifested by limitation of extension, and again remanded his low back and TDIU claims to the AMC for additional evidentiary development, including obtaining updated VA treatment records and an addendum opinion for the Veteran's low back claim.  The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance.  See Stegall v. West, 11 Vet. App. 268 (1998).

A review of the record reflects that the AMC obtained update VA treatment records and sent the Veteran with information regarding what is required to substantiate a claim for TDIU in March 2011.  Additionally, the Veteran was afforded a new VA examination in May 2011 with a November 2012 addendum opinion.  Additionally, the Board obtained an addendum opinion from a Veterans Health Administration (VHA) physician in July 2013.  Accordingly, all remand instructions issued by the Board have been complied with and these matters are once again before the Board.

The issue of entitlement to TDIU, including on an extraschedular basis, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC in Washington, DC.  VA will notify the Veteran if further action on his part is required.


FINDING OF FACT

The competent medical evidence of record indicates that the Veteran's currently diagnosed degenerative joint disease of the lumbar spine is aggravated by his service-connected left leg disability.


CONCLUSION OF LAW

Degenerative joint disease of the lumbar spine is aggravated by the service-connected bilateral flat feet.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has thoroughly reviewed all the evidence in the Veteran's claims file.  While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence).  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran).

The Board must assess the credibility and weight of all 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 Veteran.  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 all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

I. Veterans Claims Assistance Act of 2000 (VCAA)

With respect to the Veteran's claim for service connection for degenerative joint disease of the lumbar spine, as secondary to a service-connected left leg disability, that claim has been granted, as discussed below.  As such, the Board finds that any error related to the VCAA on that claim is moot.  See 38 U.S.C. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

II. Merits of the Claim

The Veteran alleges that he currently suffers from degenerative joint disease of the lumbar spine as a result of his service-connected left leg disability.  Specifically, he claims that he has an altered gait from his left leg disability and that this has caused or aggravated his low back disability.

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service.  See 38 U.S.C.A. § 1110 (West 2002).  However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease.  If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity.  See 38 C.F.R. § 3.303(b) (2012).  Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service.  See 38 C.F.R. § 3.303(d) (2012).

In order to establish service connection for a disability, there must be (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).

Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability.  See 38 C.F.R. § 3.310(a) (2012).  Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation.  See 39 C.F.R. § 3.310(b) (2012); Allen v. Brown, 8 Vet. App. 374 (1995).

In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512 (1998); see also Allen, supra.

Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-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 nonservice-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.  See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b)).

A review of the medical evidence of record shows that the Veteran has a current low back disability.  The Veteran has sought treatment for low back pain on multiple occasions and has been diagnosed with degenerative joint disease of the lumbar spine.  Thus, the first element of Wallin is met.  

Additionally, a review of the claims file indicates that the Veteran is service connected for residuals of shrapnel and gunshot wounds to the left femur and left knee to include degenerative joint disease of the left knee with embedded shrapnel and scars, based on both limitation of flexion and limitation of extension.  Thus, the second element of Wallin is met.

The remaining question is whether a medical nexus exists between the Veteran's current low back disability and his service-connected left leg disability.

The Veteran has been afforded multiple VA examinations to address his low back disability.  A September 2007 VA examiner concluded that the Veteran's left leg disability did not cause his low back disability as he did not demonstrate any altered gait.  A May 2011 VA examiner concluded that the Veteran's low back disability was age-related.  Neither of these examiners addressed whether the Veteran's low back disability was aggravated by his left leg.

A November 2012 addendum opinion concluded that the Veteran's spine condition had gotten worse with age and that there was no substantial evidence that it was aggravated by his left leg disability.  However, the examiner did not specifically address the multiple findings of altered gait in the medical evidence and what effect, if any, such an altered gait had on the Veteran's low back disability.

In light of the deficiencies of the September 2007, May 2011, and November 2012 examiners' opinions, the Board obtained an expert opinion from a VHA orthopedic surgeon in July 2013.  The VHA physician concluded that the Veteran's low back disability was aggravated by his left leg disability and resulting antalgic gait.  He explained that impaired gait could result in abnormal sagital plane balance and/or coronal plan imbalance with ambulation which could exacerbate degenerative disease of the spine.  He further commented that the degree of aggravation was equivalent to 75 degrees of forward flexion or a disability rating of 10 percent.  Although it is unclear whether the examiner is claiming that the noted limitation 75 degrees of forward flexion is all due to aggravation, the Board will afford the Veteran the full benefit of the doubt and assume this is the case.  Therefore, the examiner's opinion can be read to establish a baseline level of severity equivalent to a 0 percent evaluation.  As he has arguably established a baseline level of severity, the Board is able to grant secondary service connection on the basis of aggravation under 38 C.F.R. § 3.310(b) (2012).  Accordingly, the Board finds that the third element of Wallin has been met.

Affording the Veteran the full benefit of the doubt, the Board finds that his current degenerative joint disease of the lumbar spine was aggravated by his service-connected left leg disability.  See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  As such, his claim for secondary service connection for degenerative joint disease of the lumbar spine on the basis of aggravation is granted.


ORDER

Entitlement to secondary service connection for degenerative joint disease of the lumbar spine based on aggravation is granted.


REMAND

After a thorough review of the Veteran's claims folder, the Board has determined that additional development is necessary prior to the Board's adjudication of his claim of entitlement to TDIU.

As the above grant of secondary service connection for a low back disability on the basis of aggravation will affect the resolution of the Veteran's claim for TDIU, these issues are inextricably intertwined.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991); Holland v. Brown, 6 Vet. App. 443 (1994); Henderson v. West, 12 Vet. App. 11 (1998).  As such, the RO must first implement the Board's above grant of secondary service connection on the basis of aggravation for a low back disability, including assigning a disability rating and effective date, and then readjudicate the Veteran's claim for TDIU.

Accordingly, the case is REMANDED for the following actions:

1.  The Board's decision granting secondary service connection on the basis of aggravation for degenerative joint disease of the lumbar spine should be implemented by the RO/AMC, including assigning a disability rating and an effective date.  The Veteran should be properly notified thereof and of his appellate rights.

2.  Thereafter, the Veteran's claim of entitlement to TDIU should be readjudicated.  If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative.  After they have had an adequate opportunity to respond, all issues properly on appeal should be returned to the Board for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs