Citation Nr: 1337802 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 07-36 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from September 1983 to July 1986 and from October 1986 to June 1992. This matter comes to the Board of Veterans' Appeals (Board) from a March 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2010, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. A hearing before the undersigned Acting Veterans Law Judge (AVLJ) was held at the RO in August 2010. The hearing transcript has been associated with the claims file. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, his low back disorder is etiologically a result of his service-connected right and left knee disabilities. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back disorder have been met. 38 U.S.C.A. §§ 101(24), 1101, 1110, 1112, 1113, 1116, 1131, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist claimants for benefits. The decision below grants service connection for a low back disorder. As such, there is no further need to discuss compliance with the duties to notify and assist. Analysis Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may also 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). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, 21 Vet. App. at 309. Service connection may be established on a secondary basis for a disability which is proximately due to, or aggravated by, service connected disease or injury. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran contends that he has a low back disorder that is a result of a motor vehicle accident (MVA) during his military service, or in the alternative, that it was caused or aggravated by his service-connected right and left knee disabilities. Therefore, he argues that service connection is warranted for his low back disorder. Post-service treatment records and VA examination reports note that the Veteran has a diagnosis of lumbar degenerative disc disease. Thus, he has a current disability with respect to this claim. However, service treatment records are silent for any complaint, treatment, or diagnosis referable to the low back. The Veteran has asserted that he was injured in an MVA in April or May 1986, but multiple attempts to obtain hospital records related to his treatment have yielded a negative response. His service treatment records from both periods of service do not reference the accident, including a February 1987 enlistment examination. He was put on a permanent profile for his knees in March 1989, but there was no discussion of back symptoms or limitations at that time. Moreover, there is no competent and probative evidence associating the Veteran's current lumbar spine disability with his military service, including the purported MVA. An August 2006 letter from the Veteran's primary care physician states that the Veteran has been treated for low back pain since his discharge from service and that it is more likely as not that the low back disorder is a result of the injury to his back in service. However, the physician did not review the claims file. This fact alone does not render that examination inadequate, particularly if the medical history upon which the opinion is based is accurate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The record reflects that the first documented complaint of low back symptoms is the Veteran's April 1993 claim for service-connected benefits, and at a subsequent VA examination in May 1993, the Veteran reported having pain since 1984. That examiner diagnosed lumbosacral strain. Nevertheless, as indicated by the above, the Veteran's service treatment records are silent for any discussion of the injury and related symptoms, as would be expected if the symptoms were present or the Veteran had an MVA resulting in injury. In contrast, there is the January 2011 VA opinion. The examiner reviewed the claims file and noted the Veteran's complaints of having back symptoms since service; however, the examiner found that it is less likely as not that the Veteran's current back disorder was a result of his military service on the basis that there was no record of either the MVA or any treatment for the back in service treatment records. The Board finds the January 2011 VA opinion is more probative than the August 2006 private opinion. Even so, the January 2011 VA examiner also opined that it is as likely as not that the current back disorder is related to the service-connected bilateral knee disabilities. In support of this opinion, the examiner stated that it is common for individuals with knee problems to alter their lifting technique such that they begin using their back more. The examiner also noted the extensive documentation of knee problems over the years including intermittently altered gait and the lack of intercurrent injury that could have caused the current disability. A December 2007 opinion from the Veteran's treating physician also states that his lumbar herniation, pain, and subsequent surgery were a result of a long history of limping related to the bilateral knee disability. While the physician again did not have access to the claims file, the opinion reflects several years knowledge based in treating the Veteran for his knees and back, as opposed to the unsubstantiated information the physician had in August 2006 with respect to the in-service MVA. Furthermore, the opinion is not inconsistent with the medical record which reflected findings of altered gait. Therefore, in contrast to the prior opinion, the Board affords the December 2007 opinion significant probative value. In light of the above, the Board determines that the evidence in favor of a causal relationship between the Veteran's low back disorder and his service-connected bilateral knee disabilities is at least in equipoise. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Therefore, service connection for lumbar spine degenerative disc disease is granted as secondary to the service-connected right and left knee disabilities. ORDER Entitlement to service connection for a low back disorder is granted as secondary to service-connected right and left knee disabilities. ____________________________________________ N. SNYDER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs