Citation Nr: 1332041	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  09-01 457	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUE

Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected bilateral knee and bilateral ankle disabilities.


REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran (Appellant)


ATTORNEY FOR THE BOARD

Patricia Kingery, Associate Counsel 


INTRODUCTION

The Veteran, who is the appellant, had active service from October 1975 to November 1979.

This appeal comes to the Board of Veterans' Appeals (Board) from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In June 2011, the Veteran testified at a hearing via videoconferencing from the RO before the undersigned Veterans Law Judge in Washington, DC.  A transcript has been procured and is of record.

In an August 2011 decision and remand, the Board, in part, remanded the Veteran's claim for service connection for a lumbar spine disorder to the Appeals Management Center (AMC) for additional development.  In a December 2012 remand, the Board, in part, again remanded the Veteran's claim for a lumbar spine disorder to the AMC for additional development.  As discussed below, because the Board is granting the full benefit sought on appeal, the Board finds that any question of compliance with the terms of the December 2012 remand is now moot.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).  

In the August 2011 decision and remand and the December 2012 remand, the Board also, in part, remanded the Veteran's claim for entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU) to the AMC for additional development.  In a July 2013 rating decision, the AMC granted TDIU.  As the July 2013 rating decision acted as a fully grant of the claim for service connection for TDIU, that issue is also rendered moot, and is not in appellate status before the Board.

In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. 


FINDING OF FACT

The current lumbar spine disorder is causally related to the service-connected bilateral knee and bilateral ankle disabilities.


CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for lumbar spine disorder as secondary to service-connected bilateral knee and ankle disabilities has been met.  38 U.S.C.A. §§ 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013).  As the Board is granting the full benefit sought on appeal as it relates to the claim of service connection for a lumbar spine disorder, this claim is substantiated, and there are no further VCAA duties.  Wensch v. Principi, 15 Vet App 362, 367-368 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (VA Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004 (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance).

Service Connection for Lumbar Spine Disorder

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1131; 38 C.F.R.             § 3.303(a) (2013).  Service connection may 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).  Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service.  See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).  

In this case, the Veteran has been diagnosed with degenerative joint disease and degenerative disc disease.  Degenerative joint disease is a chronic disease listed as "arthritis" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies to the claim for service connection for a lumbar spine disorder.  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  "Degenerative joint disease, or osteoarthritis, is defined as arthritis of middle age characterized by degenerative and sometimes hypertrophic changes in the bone and cartilage of one or more joints and a progressive wearing down of apposing joint surfaces with consequent distortion of joint position usually without bony stiffening."  Webster's Medical Desk Dictionary 501 (1986).  See Giglio v. Derwinski, 2 Vet. App. 560, 561 (1992) (nonprecedential decision citing medical authority to show that degenerative joint disease is a form of arthritis); Greyzck v. West, 12 Vet. App. 288, 291 (1999) (nonprecedential decision recognizing Stedman's Medical Dictionary 9, 1267 (26th ed.1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection).  

Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, unless clearly attributable to intercurrent causes.  Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned.  The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has 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, 718 F.3d 1331 (holding that the "chronic" in service and "continuous" post-service symptom presumptive provisions of  38 C.F.R. § 3.303(b) only apply to "chronic" diseases at 3.309(a)).

Service connection may also be established with certain chronic diseases, including degenerative joint disease, based upon a legal presumption by showing that the disorder manifested itself to a degree of 10 percent disabling or more within one year from the date of separation from service.  Such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a).  While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time.
  
However, as discussed below, because service connection for the Veteran's lumbar spine disorder is being granted secondary to service-connected bilateral knee and bilateral ankle disabilities (under 38 C.F.R. § 3.310), other theories of entitlement to the service connection, such as direct and presumptive service connection, are rendered moot

Service connection may be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury.  To prevail on the theory of secondary service causation, 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 current disability and the service-connected disability.  Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995).

The Veteran filed the claim in November 2005 seeking, among other things, service connection for a lumbar spine disorder.  The Veteran contends, in part, that his lumbar spine disorder was either caused or aggravated by his service-connected bilateral knee and bilateral ankle disabilities.  At the June 2011 Board hearing, the Veteran stated that his service-connected knee disabilities caused him to alter his gait, which exacerbated his back problems.

The Veteran has a current lumbar spine disability.  A February 2005 private medical treatment record notes x-ray results revealing osteoarthritis of the lumbar spine.  A March 2007 VA treatment record notes that, based on analysis of x-rays, the Veteran was diagnosed with degenerative joint disease and degenerative disc disease with mild degenerative changes of the lumbar spine.  The Veteran is also currently service-connected for bilateral knee and bilateral ankle disabilities.  

The Board finds that the evidence is in equipoise on the question of whether there is a nexus establishing a connection between the current lumbar spine disability and the service-connected disabilities.  There is both unfavorable and favorable evidence regarding the question of whether the Veteran's current lumbar spine 

disorder is causally connected to his service-connected bilateral knee and bilateral ankle disabilities.  The unfavorable evidence includes a January 2013 VA examination report opinion that the Veteran's lumbar spine disorder is less likely than not proximately due to or the result of the Veteran's service-connected bilateral knee and bilateral ankle disabilities because the Veteran's "lower extremity gait pattern, range of motion, strength, alignment, and stability are too function [sic] to precipitate or aggravate a degenerative process in the lumbar spine."  While there seems to be some typographical error in the examiner's opinion, considering the language and context of the opinion, the inference is that the VA examiner is offering the opinion that the lumbar spine disorder has not been caused or aggravated by the Veteran's service-connected disabilities because the lower extremity gait pattern, range of motion, strength, alignment, and stability are too functional to cause or aggravate the back disability.  Such inference is the only plausible reading of the opinion rationale, especially when it is read and understood in the larger context of explaining the opinion, the VA examiner having checked the box on the examination report to reflect the opinion that the "claimed condition is less likely than not (less than 50 percent) proximately due to or the result of the Veteran's service-connected condition."  

The other piece of unfavorable evidence against the theory of secondary service connection is an April 2013 AMC independent VA medical opinion.  The VA examiner opined that the Veteran's lumbar spine disorder is less likely than not proximately due to or the result of or aggravated by the Veteran's service-connected bilateral knee and bilateral ankle disabilities because there is no scientifically based medical literature supporting a secondary causal relationship or aggravation beyond the normal disease progression of thoracolumbar spine degenerative disc disease and degenerative joint disease caused by foot, ankle, or knee disorders, including traumatic arthritis and osteoarthritis, even with antalgic gait.  The VA examiner does not indicate which "medical literature" he is relying on as the basis of the opinion.


The favorable evidence includes a June 2005 private medical treatment record.  
Dr. J.H. opined that the Veteran's low back pain was partially related to his (service-connected) right knee disability that alters his gait, as well as related to the natural aging process and his work as a boiler maker and welder.  

The favorable evidence also includes a July 2007 private orthopaedic evaluation by Dr. N.K.  In the private evaluation report, Dr. N.K. indicated he interviewed the Veteran and reviewed the medical records submitted by the Veteran, which appear to constitute a copy of his claims file.  Dr. N.K. performed a physical evaluation of the Veteran to include his back and spine.  The report notes that, upon gait analysis, the Veteran ambulates with a mild to moderately antalgic gait.  Dr. N.K. diagnosed the Veteran with acquired multi-level lumbar spinal canal stenosis and broad based lumbar disc protrusion.  Dr. N.K. opined, in part, that it is more likely than not that a causal component of the Veteran's lower back condition resulted from the alteration of his normal weight bearing mechanics secondary to his service-connected right knee and left ankle disabilities because these injuries would reasonably have caused an alteration of weight bearing mechanics causing the onset of progressive lower back pain.    

Dr. J.H.'s June 2005 opinion that there exists a causal connection between the Veteran's lumbar spine disorder and service-connected disabilities was supported by reasons and bases.  Additionally, during the July 2007 private orthopaedic evaluation, Dr. N.K. personally interviewed and examined the Veteran, including eliciting a history from him; reviewed the claims file provided by the Veteran; and provided an opinion supported by reasons and bases.  The Board finds the June 2005 private medical treatment record and the July 2007 private orthopaedic evaluation to be competent and credible evidence.  

For these reasons, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's lumbar spine disorder is causally related to his 

service-connected disabilities.  Thus, the criteria for service connection for a lumbar spine disorder, as secondary to service-connected bilateral knee and bilateral ankle disabilities, has been met.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.


ORDER

Service connection for a lumbar spine disorder, as secondary to service-connected bilateral knee and bilateral ankle disabilities, is granted.



____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs