Citation Nr: 1336387 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-33 741 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a low back disorder, claimed as secondary to service-connected knee disabilities. 2. Entitlement to service connection for a mental disorder, claimed as secondary to service-connected knee disabilities. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). ATTORNEY FOR THE BOARD B. J. Dempsey, Associate Counsel INTRODUCTION The Veteran, who is the appellant, had active service from February 1995 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In December 2012, the Board remanded the issues on appeal to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The issues on appeal have since been recharacterized to better reflect the Veteran's contentions regarding theories of service connection. With respect to the issue of service connection for a low back disorder, as secondary to service-connected knee disabilities, the additional development actions have been completed and the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The issues of service connection for a mental disorder and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The Veteran is service connected for residuals of right knee trauma, chondromalacia of the left patella, and limitation of motion of the right knee, status post anterior cruciate ligament (ACL) reconstruction. 2. The Veteran has a current low back disability. 3. The Veteran's current low back disability is not proximately due to, or aggravated by, any of the service-connected knee disabilities. CONCLUSION OF LAW The criteria for service connection for a low back disability, claimed as secondary to service-connected knee disabilities, have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. § 3.102, 3.159, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and the representative 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). 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). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In an August 2007 notice letter, the RO apprised the Veteran of the information and evidence necessary to substantiate the claim for service connection for low back disorder, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. In consideration of the foregoing, the Board finds that the VCAA notice requirements were fully satisfied prior to the initial denial of the claim in May 2008, and there is no outstanding duty to inform the Veteran that any additional information or evidence is needed. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records that could be located, post-service VA treatment records, private medical records identified and/or submitted by the Veteran, and the Veteran's statements. Following the Board's December 2012 remand, the Veteran was also afforded a VA examination in January 2013 in relation to the claim for service connection for a low back disorder. 38 C.F.R. § 3.159(c)(4) (2013). The VA examiner provided an in-person examination, reviewed the Veteran's claims file and medical history, and offered rationale for the opinions reached. Accordingly, the Board finds that the January 2013 VA examination is adequate and no further medical examination or medical opinion is needed. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). This claim was subsequently readjudicated in a June 2013 supplemental statement of the case; therefore, the Board finds that there has been substantial compliance with the December 2012 Board Remand order. See Stegall; D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also 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 issue 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). In rendering a decision on appeal the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau, 492 F.3d at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Service Connection for a Low Back Disorder The Veteran asserts that she developed low back pain as a result of service-connected knee disabilities, but did not present a theory or make an assertion as to how such a relationship is to have occurred, including how any impairment or disease process of the knees migrated to or affected the back, or by what mechanism or process it is alleged to have done so. Service connection is currently in effect for disabilities affecting both of the Veteran's knees. Specifically, the Veteran is service connected for residuals of right knee trauma, chondromalacia of the left patella, and limitation of motion of the right knee, status post ACL reconstruction. Initially, the Board finds that the Veteran has a current low back disability. The January 2013 VA spine examination report shows that the Veteran has been diagnosed with degenerative changes at L4-L5 and L5-S1 since 2010. A January 2010 lumbar spine MRI report prepared by Dr. G.L., a private physician, indicates that these changes are consistent with degenerative disc disease. In addition, the January 2013 VA examiner observed arthritis in the thoracolumbar spine. After a review of all the lay and medical evidence of record, however, the Board finds that the Veteran's low back disability is not proximately due to (caused by), or aggravated by, any of the service-connected knee disabilities. In the April 2009 VA Form 21-4138, the Veteran stated that the service-connected knee disabilities were related to her back condition. The Veteran did not provide additional details. Nonetheless, the Board finds that in this case the Veteran is not competent to provide evidence on the relationship between her low back disability and the service-connected knee disabilities. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2008) n. 4 (lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent). Establishing a nexus between degenerative diseases of the back and residuals of right knee trauma requires complex knowledge of the musculoskeletal system, degenerative processes, other internal systems, and different anatomical locations. While the Veteran is competent to report pain and other observable symptoms related to these conditions, the Veteran does not have the requisite medical knowledge, training, or expertise to be able to render a competent medical opinion regarding the relationship between them. See Layno, 6 Vet. App. at 469-71. However, also in April 2009, the Veteran was evaluated by Dr. N.O., a private physician, for problems arising from bilateral knee instability and pain. Dr. N.O. reported on a series of symptoms relating to the Veteran's knees, but added that the Veteran "also presents back problems that respond minimally to analgesics and anti-inflammatory." Dr. N.O. described several symptoms and limitations on occupational and social functioning, including an inability to tolerate prolonged sitting or standing. In conclusion, Dr. N.O. stated, "after evaluation of record it is more probable than not that due to her knee problem, now she presents back problem and emotional problem. Please evaluate because it is more probable than not that all of this [sic] conditions are service connected." Dr. N.O. did not indicate which records were reviewed and did not provide any additional rationale for this opinion. In January 2013, the Veteran underwent a VA spine examination. The examiner reviewed the Veteran's claims file and performed an in-person examination. The examiner then opined that the Veteran's low back disability is "less likely as not related to service connected bilateral knee condition and is less likely as not aggravated by service connected bilateral knee joint condition." The supporting rationale includes how "the lumbar condition and [service-connected knee disabilities] are different disease entities with different pathophysiological processes that are unrelated to each other." The examiner also explained that medical evidence does not support a causal relationship between an ACL tear, status post reconstruction, and chondromalacia of the left patella - the injuries comprising the Veteran's service-connected knee disabilities - and degenerative disc disease of the lumbar spine. Additionally, the Board notes that a VA Medical Center (VAMC) entry from September 2007 reads, "Due to Injury: Yes: Explain [patient] has back problems due to basic training while in the Army." However, the Board finds that this entry does not in fact pertain to the Veteran's low back condition. First, the Veteran has never asserted a direct service connection theory, and service treatment records are negative for complaints of a basic training injury. More broadly, the remainder of the claims files is negative for an assertion or evidence of an in-service back disorder or direct service connection claim. Thus, this treatment note is an aberration from the entire record. Second, the VA clinician describes how the Veteran came to the clinic "primarily" for a pap smear examination. No secondary reasons were listed, including any reference to the Veteran's back, other than the text reported above. Third, the plan for treatment indicated that the Veteran was processed for a pap smear and tactile breast and vaginal examination. The entry notes that the examination was performed and tolerated well. No additional commentary describing an evaluation or treatment for back problems was provided. Fourth, a separate VAMC entry from the same day describes the aforementioned examination. The "patient complaints" section states that the Veteran "came for pap smear" and makes no mention of back problems. Fifth, and encompassing all other reasons, it is not clear whether this statement would be an assessment provided by the VA clinician, or lay evidence provided by the Veteran. Further, the statement does not distinguish which areas of the back are being discussed. As such, the Board finds this to be an errant entry that does not in fact pertain to this Veteran; therefore, the entry is not relevant, and is assigned no weight or probative value regarding the cause of the Veteran's low back disability as secondary to a service-connected knee disability. In contrast, the Board finds that both the April 2009 medical report from Dr. N.O. and the January 2013 VA spine examination provide probative medical evidence regarding the relationship between the Veteran's service-connected knee disabilities and current low back disability. However, when weighing the probative value of each, the Board is guided by additional statements provided by the 2013 VA examiner. Specifically, the VA examiner noted that Dr. N.O. did not state whether the Veteran's service treatment records were reviewed or whether a complete musculoskeletal physical examination was provided to support the positive nexus opinion. After reviewing Dr. N.O.'s report, the Board agrees with the VA examiner's observations and finds that Dr. N.O.'s evaluation is entitled to less probative value than the 2013 VA examination, which included a thorough physical evaluation, review of the Veteran's claims file, and a detailed rationale to explain why Veteran's current low back disability was not caused or aggravated by any of the Veteran's service-connected knee disabilities. Based on the evidence of record, the weight of the competent and credible evidence demonstrates no relationship between the Veteran's current low back disability and the Veteran's service-connected knee disabilities. Thus, service connection based on a secondary theory of entitlement is not warranted. 38 C.F.R. § 3.310(a). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In reaching this conclusion, the Board notes that the Veteran has not claimed that her current low back disability is directly related to service. See 38 C.F.R. §§ 3.303, 3.304. Similarly, the Veteran has not asserted that symptoms of her low back disability, insofar as it can be identified as arthritis, were "chronic" in service or "continuous" after service separation. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran also does not claim that her current low back disability, insofar as it can be identified as arthritis, manifested to a compensable degree within one year of discharge from service. See 38 C.F.R. §§ 3.307, 3.309. In a previously denied claim for service connection for a low back disability and as part of the recent claim giving rise to this decision, the Veteran has specifically and consistently requested that her low back disability be evaluated as a condition secondary to her service-connected knee disabilities. See September 1998 and August 2007 VA Form 21-4138. At no point during the claim initiated in August 2007 has the Veteran suggested that her low back disability is related to service in any way other than as related to her service-connected knee conditions. As a result, the Board does not reach this issue in the present appeal. ORDER Service connection for a low back disorder, as secondary to service-connected knee disabilities, is denied. REMAND With respect to the Veteran's claims for service connection for a mental disorder, as secondary to a service-connected knee disability, and TDIU, a remand is required to ensure that there is a complete and thorough medical opinion to inform the Board's decisions. Once VA undertakes the effort to provide an examination when developing a claim, VA has a duty to ensure that the examination provided is adequate. See Barr, 21 Vet. App. at 311-12. The Veteran asserts that she developed a nervous disorder (claimed as a mental disorder) as a result of her service-connected knee disabilities. In January 2013, pursuant to the December 2012 Board Remand instructions, the Veteran underwent a VA examination for mental disorders. After reviewing the Veteran's treatment records and claims file and performing a mental health evaluation, the VA examiner opined that no mental disorders were present. As a result, the VA examiner concluded that an opinion for aggravation of non-service-connected condition by a service connected condition could not be rendered. However, also in January 2013, the Veteran underwent a psychiatric evaluation by Dr. L.C.R.R., a private psychiatrist. The "pertinent history" in the examination report notes that "due to her chores, functions, and the years she has worked, she developed problems with her lower back, hips, and knees." The narrative continues that "secondary to these events, she started to present with emotional symptoms." After reviewing additional areas including current functioning, mental state, behavior, and thought content, Dr. L.C.R.R. diagnosed moderate severe depression with anxiety. Significantly, however, Dr. L.C.R.R. did not provide an opinion regarding the relationship between the Veteran's service-connected knee disabilities and mental condition, as distinct from other non-service-connected disorders affecting her back and hips. Given the conflicting and incomplete elements of these examination reports, the Board finds that an additional medical examination is needed. This case presents certain medical questions about the current diagnosis and etiology of the Veteran's mental condition that cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Specifically, the Board must determine whether the Veteran's currently diagnosed moderate severe depression with anxiety is proximately caused or worsened by the service-connected knee disabilities. The separate issue of entitlement to TDIU is inextricably intertwined with the issue of service connection for a mental disorder, and the proposed development will encompass that issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Accordingly, the issues of service connection for a mental disorder and TDIU are REMANDED for the following action: 1. The RO/AMC should attempt to obtain the necessary authorization from the Veteran to obtain all of the treatment records from Dr. L.C.R.R. in San Juan, Puerto Rico. All efforts to obtain these records should be fully documented, and Dr. L.C.R.R. must provide a negative response if these records are not available. If these records are unavailable, the Veteran should be apprised of such and given the opportunity to submit the requested information as required under 38 U.S.C.A. § 5103A(c) and 38 C.F.R. § 3.159(c). 2. After all available records and/or responses from Dr. L.C.R.R. have been associated with the claims file, or the time period for the Veteran's response has expired, the RO/AMC should furnish the Veteran's claims file to the VA physician who conducted the January 2013 VA mental condition examination for an addendum opinion supported by reasons. The VA examiner should review all pertinent evidence of record, including the December 2012 Board Remand instructions. The VA examiner should assume that moderate major severe depression with anxiety (diagnosis) is currently present for the purpose of the opinion requested above. The VA examiner is asked to prepare the following addendum opinions: A) Is moderate major severe depression with anxiety as likely as not (i.e., to at least a 50-50 degree of probability) caused by any of the Veteran's service-connected knee disabilities? B) If no causal or etiological relationship is found to be present, is it as likely as not that moderate major severe depression with anxiety was permanently worsened beyond its normal course by any of the service-connected knee disabilities? 3. If the January 2013 VA examiner is not available to provide the requested addendum opinion, the Veteran should be afforded a new VA mental disorders examination to assist in determining the etiology of any current psychological disorders, including major severe depression with anxiety. Any tests deemed medically advisable should be accomplished. The examiner is to review the relevant documents in the Veteran's claims file and offer the above stated opinions on the questions of causation and aggravation of major severe depression with anxiety. 4. After completion of the above and any additional development deemed necessary, the RO should readjudicate the issue of service connection for a mental disorder, as secondary to service-connected knee disabilities, and adjudicate the claim for TDIU. If it is determined that the Veteran's service-connected disability picture fails to meet the combined rating percentage standards under 38 C.F.R. § 4.16(a), the additional occupational impairment and symptoms due to any service-connected mental disorder will need to be considered to determine whether referral for TDIU under the provisions of 38 C.F.R. § 4.16(b) is warranted. 5. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case, and should be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2013). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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. 2013). _________________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013). Department of Veterans Affairs