Citation Nr: 1336211 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 09-23 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran had active service from June 1980 to September 1980, followed by Army National Guard service, including periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia The Veteran testified at a travel board hearing which was chaired by the undersigned Veterans Law Judge at the Atlanta RO in June 2013. A transcript of the hearing is of record. A review of the Virtual VA paperless claims processing system was conducted. The issue of entitlement to an annual clothing allowance has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Specifically, the Veteran submitted an application dated June 2006 that was received in October 2006. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The evidence demonstrates that the Veteran's current low back disability was due to or the result of his service-connected knee disabilities. CONCLUSION OF LAW Entitlement to service connection for a low back disability secondary to service-connected knee disabilities is established. 38 U.S.C.A. §§ 1110, 1131 (West 2012); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Considering the favorable outcome detailed below as to the grant of this claim, VA's fulfillment of its duties to notify and assist need not be addressed at this time. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2012). The Veteran seeks service connection for a low back disability, which he contends is secondary to his service-connected knee disabilities. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2012). Generally, in order to establish direct service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2013); see also Hickson v. West, 12 Vet. App. 247, 253 (1999) and Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Regarding nexus, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury, or that service-connected disease or injury has chronically worsened the nonservice-connected disability for which service connection is sought. 38 C.F.R. § 3.310 (2013); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). In cases of aggravation of a Veteran's nonservice-connected disability by a service-connected disability, such Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id. at 448; see also 38 C.F.R. § 3.322. The regulation which governs claims for secondary service connection, 38 C.F.R. § 3.310, was amended during the course of the Veteran's claim and appeal. The intended effect of this amendment was to conform VA regulations to the Allen decision. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(b)). However, given the possibility that these changes could potentially be interpreted as substantive, and because the Veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 that was in effect before the change, which arguably favors the Veteran. Accordingly, the Board will evaluate the claimed disability, irrespective of any baseline. The Veteran contends that his low back disability is caused by his service-connected knee disabilities. He does not allege direct service connection for the low back disability and the evidence of record is silent to any in-service back injury or disability. As there is no evidence of an in-service incurrence relating to the Veteran's back disability, the claim cannot succeed on a direct basis and the Board will further evaluate the claim on a secondary basis. The Veteran experienced three injuries relating to his knees while participating in active duty for training (ACDUTRA). Line of Duty (LOD) investigations confirm a left knee injury in June 1999, a right knee injury in May 2000 and another left knee injury in June 2003. The Veteran had a total left knee replacement in August 2005 and right knee arthroscopic debridement and left knee closed manipulation in December 2005. The Veteran is service-connected for both right and left knee disabilities, dating to September 2005. The Veteran injured his back and required surgery in 1998. This occurred while he was not on active duty status and the evidence of record contains no medical records contemporaneous to the back injury or surgery. The back surgery is noted on a July 1998 enlistment exam as "diskectomy L5-S1" and the Veteran was deemed fit for service. The service medical records (SMRs) and other evidence of record are silent as to any other back complaints or injuries. Private medical records refer to the 1998 surgery as a "L5-S1 laminectomy" and state the Veteran "was doing well up until his knee injury". See December 2005 treatment notes from Dr. A. The Veteran was afforded a VA examination in March 2007. Of record are two versions of the examiner's opinion, which while very similar, offer opposite opinions as to the whether the Veteran's low back disability is secondary to his service-connected knee disabilities. One version of the examiner's opinion provides a positive opinion and states "it is as least likely as not that the low back condition is secondary to the knee conditions due to an alteration in his gait exacerbating a pre-existing condition". Another version of the examiner's opinion provides a negative opinion and states "it is less likely as not that the low back condition is secondary to the knee conditions due to an alteration in his gait exacerbating a pre existing condition". Both opinions are from the same examiner and reflect the same date. As there is no way to reconcile these opinions, their conclusions are collectively assigned no probative value. Private treatment records contain evidence to support entitlement to service-connection for the Veteran's low back disability, to include as secondary to knee disabilities. Dr. S. treated the Veteran for many years and the record contains treatment records from October 2001 to February 2006. Included in the record are three letters from Dr. S. that address the relationship between the Veteran's service-connected knee disabilities and low back disability. In a March 2005 letter, Dr. S. writes that the Veteran "suffers from severe pain in both of his hips, severe low back pain, and muscle spasms secondary to his knee injuries and his resultant limp. He must walk straight-legged especially on the left side and this has resulted in severe hip pain and lower back pain, as well as muscle spasm". In a February 2006 letter, after reviewing the Veteran's history of knee disabilities, Dr. S. states that the Veteran "must walk straight-legged especially on the left side and this has resulted in severe hip pain and lower back pain, as well as muscle spasm". Finally, in a July 2006 letter, Dr. S. writes the Veteran's "left and right knee injuries have become chronic in condition and have led to secondary impairments of severe back pain and muscle spasms in the lower extremities". Based on the positive statements provided by Dr. S., the claim is granted. Although the Veteran had back surgery previous to his knee injuries, the evidence of record suggests he experienced no further problems with his back until after his in-service knee injuries. Most importantly, the three statements by Dr. S. support that the Veteran's low back disability was due to or the result of the Veteran's service-connected knee disabilities. As a result, the Veteran's appeal is granted on a secondary basis. ORDER Service connection for a low back disability is granted. ____________________________________________ Bethany L. Buck Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs