Citation Nr: 1324816 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-04 977 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to the Veteran's service-connected left knee disability. 2. Entitlement to service connection for a left hip disability, to include as secondary to the Veteran's service-connected left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and Appellant's Wife ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active service from June 1969 to August 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In September 2011 the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record and has been associated with the claims file. In June 2012 the Board remanded the Veteran's claim for additional development, specifically, the issuance of an addendum medical opinion. The claim has since been returned to the Board for further appellate action. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a low back disability is related to military service or to the Veteran's service-connected left knee disability. 2. The evidence shows that the Veteran has a left hip disability that has been aggravated by his service-connected left knee disability. CONCLUSIONS OF LAW 1. The Veteran's low back disability was not incurred in or aggravated by active service or a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2012). 2. The Veteran's left hip trochanteric tendinitis was aggravated by his service-connected left knee disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has claimed entitlement to service connection for a low back disorder and a left hip disorder, asserting that both conditions were either caused or aggravated by his service-connected left knee disability. At the outset, the Board notes service connection is currently in effect for left knee fusion, status post meniscus tear, which has been assigned a 40 percent disability evaluation. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Additionally, service connection may be granted, on a secondary basis, for a disability which is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service-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 non-service-connected disease, will be service-connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service-connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. Aggravation will be established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. 38 C.F.R. § 3.310(b). The Board notes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. Under the revised § 3.310(b) (the existing provision at 38 C.F.R. § 3.310(b) was moved to sub-section (c)), any increase in severity of a nonservice-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. 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 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. 38 C.F.R. § 3.310(b). As the Veteran filed his claim on October 20, 2006, the Board finds that the amended version of 38 C.F.R. § 3.310 applies in this case. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). A. Back In a November 2006 statement the Veteran explained that his left knee fusion has affected his gait causing additional back strain. He further explained in an October 2007 statement that the way he swings his leg due to his altered gait has caused pinched nerves in his low back. The Veteran testified at a September 2011 Board hearing that his fused left knee causes him to limp, waddle when walking, and sometimes fall. He explained that getting in and out of the car, bed, and bath requires using his upper extremities and turning his back to scoot and maneuver. He reported the maneuvers irritate his low back and left hip. The Veteran's wife also testified that the Veteran teeters to the left when he walks. VA treatment records reflect complaints of low back pain for years and periodically reference "low back pain, left hip pain s/p old left knee fusion," with no further explanation as to any potential relationship between the Veteran's left knee fusion and back and hip pain. A February 2009 lumbar spine MRI report noted that the Veteran's left knee fusion "may be aggravating" his lumbar radiculopathy. The Veteran was afforded a VA examination in April 2011. He reported that in the mid-1980s he had a gradual onset of lower back pain, resulting in two to three surgeries. He said he was told he had a ruptured disc and pinched nerve in his back and then got an infection in his low back. The Veteran stated he had filed two workers' compensation claims for his back in the past. The examiner noted a long, linear scar in the midline of the Veteran's lower back and very flat back muscles. No muscle spasms were detected. The Veteran reported pain when the skin and fat were lifted off the right side of his back, which the examiner noted was inconsistent with anatomy and back conditions causing problems. The examiner noted no abnormal curves in the low back and stated that the Veteran's pelvis appeared level. The examiner noted that a December 2010 MRI taken at the VA showed a couple of bulging discs at L4-5 and L5-S1, some disc material or scar at L5-S1 on the left, and L2-3 bilateral facet arthropathy. The examiner opined that there is no evidence linking the Veteran's current back condition of postoperative surgical changes and sciatica to the Veteran's left knee fusion. He explained that the Veteran admitted that workers' compensation injuries instigated his having low back surgery. He also noted the Veteran had a workers' compensation injury of his right knee resulting in a total knee arthroplasty and revision and a December 2010 motor vehicle accident. In a July 2012 addendum medical opinion the examiner stated that the residual symptoms in the Veteran's lower back are more likely than not all due to the Veteran's workers' compensation injury and the resulting surgery and less likely than not in any way aggravated by the gait abnormality caused by the Veteran's service-connected left knee injury. The examiner opined that the infection of the Veteran's back after surgery caused scar tissue which caused tugging on nerves and pain. He opined that it has nothing to do with the Veteran's left knee. The Board finds the VA examiner's opinion to be competent and probative as to the etiology of the Veteran's low back condition. The examiner indicated he reviewed the Veteran's treatment records as well as talked to the Veteran to obtain a history. The examiner's opinion that the Veteran's service-connected left knee disability neither caused the Veteran's low back disability nor aggravated it is highly probative evidence against the Veteran's claim. Although VA treatment records contain some suggestion that the Veteran's current back condition could have been aggravated by his left knee fusion, the references are vague and without explanation, and in the case of the February 2009 note that the left knee fusion "may be aggravating" his lumbar radiculopathy, speculative. Therefore, the Board finds the February 2009 note and other references to the Veteran's back condition being status post left knee fusion to be of little probative value. Finally, the Veteran himself has opined that his service-connected left knee disability has caused or aggravated his back condition. While the Board finds the Veteran is competent to report back pain, the etiology of his condition is a complex medical question not capable of lay observation and is not the type of medical issue for which a lay opinion may be accepted as competent evidence. As a lay person, the Veteran does not have the education, training and experience to offer a medical diagnosis or an opinion as to the onset or etiology of this condition. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, the Board finds the Veteran's opinion as to etiology is not competent or probative evidence supporting his claim. The Board also notes that the evidence does not support a finding of direct service connection for the Veteran's low back disorder. His service treatment records contain no complaint of or treatment for his back. On his July 1969 separation report of medical history the Veteran reported no recurrent back pain and his spine was found normal on examination. Post-service treatment records further do not suggest the Veteran's back condition was incurred in service, nor has the Veteran contended that it was. Overall, the preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder, to include as secondary to the Veteran's service-connected left knee disability. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55; 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. B. Hip In a November 2007 statement the Veteran contended that his hip is getting worn down from his altered gait caused by his left knee fusion. The Veteran's VA treatment records show regular complaint of and treatment for hip pain and contain some suggestion of a connection between that pain and the Veteran's left knee disability. A June 2008 VA physical therapy consultation request for hip pain by the Veteran's treating physician states "pain related to SC left knee fusion." An October 2010 anesthesiology consultation for low back and hip pain states that the Veteran throws his left leg forward when walking and his fused left knee influences his left hip range of motion, gait, stance, etc. Pelvic imbalance is also noted. The Veteran was afforded a VA examination in April 2011. At the examination he reported his left hip pain began about six years ago. The examiner noted the Veteran's description of the pain involved the whole hip and down into his foot and toes on his left leg. The Veteran denied locking of the hip and said he feels grinding occasionally but no specific groin pain. The Veteran reported feeling like his entire leg had gotten weaker in the past five years. The examiner diagnosed mild trochanteric tendinitis and radicular pain and sciatica of the left leg due to the Veteran's low back condition. The examiner opined that the evidence does not support a link between the Veteran's hip pain and sciatica and the Veteran's fused knee from 30 to 35 years prior. In a July 2012 addendum medical opinion the examiner stated that the Veteran's trochanteric tendonitis is as likely as not aggravated by the Veteran's gait and sitting disturbances resulting from his lack of bending at the knee and transferring of additional load and torque to the muscles about the hip and the tendons attaching those muscles to the greater trochanter of the hip. The examiner further opined that once tendonitis occurred, the Veteran's gait disturbance would likely prolong the course of the condition and make his treatment more difficult. The Board finds the VA examiner's opinion to be competent and probative and to support the Veteran's contention that his left hip disorder has been aggravated by his service-connected left knee disorder. The Board notes no negative medical opinion evidence is of record with regard to aggravation of the Veteran's left hip trochanteric tendinitis by his service-connected left knee disorder. Therefore, in light of the July 2012 VA medical opinion, the Board finds that service connection for left hip trochanteric tendinitis is warranted on the basis that it was aggravated by the Veteran's service-connected left knee disorder. However, it must be noted that the preponderance of the evidence is against finding that the left knee disability caused the left hip condition. The medical opinions on this point are clear and unequivocal. The Board further finds that the evidence does not support direct service connection for the Veteran's left hip disability. Service treatment records contain no complaint of or treatment for a hip injury in service and none is noted on the Veteran's July 1969 separation examination. Further, no competent medical opinion evidence is of record supporting that the Veteran's hip disability was directly incurred in service, nor has the Veteran contended that it was. As a preponderance of the evidence is against a finding of direct service connection, the benefit of the doubt doctrine does not apply, and the Board finds service connection for the Veteran's left hip disability is not warranted on a direct basis. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (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, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In a November 2006 letter, the RO informed the Veteran of what evidence was required to substantiate the claims for service connection and of the Veteran's and VA's respective duties for obtaining evidence. The letter did not provide notice with regard to how VA assigns disability ratings and effective dates in the event that service connection is established. However, the Board finds the omission to be harmless error. As the Veteran's claim for service connection for a low back disability has been denied, such matters concerning the assignment of a disability rating and effective date are rendered moot. With regard to the Veteran's claim for service connection for a left hip disability, which the Board has granted, the Board notes that once a disability rating and effective date have been assigned, the Veteran will have an opportunity to initiate the appellate process again should he disagree with either. Furthermore, neither the appellant nor his representative has alleged any prejudicial error with regard to VA's notice in this matter. Thus, as the section 5103(a) notice provisions have been satisfied, the Board finds any notice deficiency as per Dingess/Hartman constitutes harmless error VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The Board finds that all necessary development has been accomplished. The RO has obtained the Veteran's service treatment records and VA treatment records. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. The Veteran was afforded a VA medical examination in April 2011 and an addendum medical opinion was obtained in July 2012. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with sufficient information to decide the issue of service connection. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. 183. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the September 2011 Board hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Veterans of Foreign Wars, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed back and hip disorders, specifically regarding their relationship to the Veteran's service-connected left knee disability. No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or his representative at the hearing. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. ORDER Service connection for a low back disability, to include as secondary to the Veteran's service-connected left knee disability, is denied. Service connection for a left hip disability as secondary to the Veteran's service-connected left knee disability is granted. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs