Citation Nr: 1334686 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 09-00 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for a bilateral knee disability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to April 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied service connection for a back condition and a bilateral knee condition. His case is currently under the jurisdiction of the VA RO in Portland, Oregon. In March 2011, the Veteran presented sworn testimony during a Travel Board hearing in Portland, Oregon, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The Board remanded the Veteran's claims for service connection to the Appeals Management Center (AMC) in July 2011 and August 2012. In June 2013, the Board sought an expert medical opinion from the Veterans Health Administration (VHA). Two VHA opinions were obtained in August 2013 and the case was returned to the Board. The issue of entitlement to service connection for a bilateral knee disability 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 Veteran's currently diagnosed low back disability is the result of his military service. CONCLUSION OF LAW A low back disability was caused or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 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 a low back disability, this is being granted, as is discussed in detail below. As such, the Board finds that any error related to the VCAA is moot. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); 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 a low back disability that is a result of his active military service. He claims that he injured his back in a jump from a helicopter in service and that his back has hurt since that time. 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. 38 U.S.C.A. § 1110 (West 2002). Essentially, 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). The medical evidence reveals that the Veteran has been treated for low back pain and diagnosed with sciatica, arthritis, chronic functional thoracolumbar mechanical strain, and disc narrowing v. transitional vertebrae with a vestigial disc. See private treatment records from S. M., MD, November 2003, December 2008; VA examination report, September 2011; VHA opinion, August 2013. As such, the first element of Hickson is met. A review of the Veteran's service treatment records shows that he was treated for complaints of recurrent low back pain in July 1972. Additionally, the Veteran has reported that he fell out of a helicopter while serving in Vietnam, injuring his back. The Board finds this report credible. As such, the second element of Hickson is also met. With respect to the remaining element (a medical nexus), the Veteran has been afforded multiple VA examinations and a VHA opinion. Additionally, he has submitted nexus opinions from his private healthcare providers. Significantly, a January 2009 letter from the Veteran's private physician, S. M., MD, indicated that the Veteran's in-service fall resulted in axial loading to the spine. He noted that this type of injury is documented as causing early arthritic changes. In the Veteran's case, he opined that this injury was the cause of his x-ray verified arthritic changes of the spine. Dr. S. M.'s opinion was supported by a similar positive opinion from another of the Veteran's private physicians, R. N., MD. Dr. R. N. concluded that the Veteran's back complaints were related to his in-service helicopter incident and that his arthritis was post-traumatic. The Board notes that the Veteran was afforded two VA examinations to address the etiology of his low back disability. A VHA opinion was also solicited. However, these examinations/opinions are not sufficient enough to outweigh the above private opinions. Specifically, the VA examiner, in his September 2011, September 2012, and February 2013 reports, rationalized his negative nexus opinion with the incorrect assertion that there were no objective service treatment records of a low back injury in service and that the Veteran's in-service back complaints were not serious enough to warrant an X-ray. This is incorrect as the Veteran was given an x-ray of his lumbar spine in July 1972. Such suggests a less full and detailed review of the record. The August 2013 VHA opinion provided essentially no rationale and failed to address the Veteran's complaints of continuous back pain since service. In light of these deficiencies, the Board finds that these negative nexus opinions are not sufficiently probative to outweigh the positive private opinions. The medical evidence in this case is, at minimum, in equipoise regarding the question of whether the Veteran's current low back disability is related to his active duty. The benefit-of-the-doubt will be conferred in the Veteran's favor and his claim for service connection for a low back disability is granted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a low back disability is granted. REMAND As discussed in detail above, the Board has granted service connection for a low back disability. The Veteran has claimed that his bilateral knee disability may be secondary to his low back disability. The Board obtained a VHA opinion to determine the etiology of the Veteran's bilateral knee disability in August 2013. Although the VHA physician provided a negative nexus opinion on the issue of direct service connection for the knees, he did not provide an opinion on whether the Veteran's knee disability was secondary to his low back disability as the low back disability was not service-connected. As the Veteran's low back disability has now been service connected, the Board finds that an opinion on whether the Veteran's bilateral knee disability was caused or aggravated by his low back disability is necessary. As the Board is prohibited from exercising its own independent judgment to resolve these medical questions, the case must remanded for an addendum opinion on the issue of secondary service connection for the bilateral knees. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). As the case is being remanded, the Board will take the opportunity to obtain any VA treatment records not yet associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Copies of all outstanding VA treatment records from the VA Roseburg Healthcare System and any other VA facility identified by the Veteran should be obtained and added to the claims folder. All efforts to obtain such records must be documented in the claims file. 2. The Veteran's claims file should be provided to an appropriate examiner for review. The Veteran may be called for examination if deemed necessary. The examiner should state whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran's currently diagnosed bilateral knee disability was caused or aggravated (made worse) by his now service-connected low back disability. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions and any other development that may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim of entitlement to service connection for a bilateral knee disability, to include as secondary to a service-connected low back disability, 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, the case 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. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). ______________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs