Citation Nr: 1339261 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 09-39 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for degenerative disc disease of the low back, to include as secondary to the service-connected left total knee replacement. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from December 1970 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for degenerative disc disease of the lower back. In July 2012, the Veteran testified before the undersigned Veterans Law Judge during a Travel Board hearing held at the RO. The transcript is of record. FINDING OF FACT The Veteran's degenerative disc disease of the low back has been medically related to his service-connected left total knee replacement. CONCLUSION OF LAW The Veteran's degenerative disc disease of the low back is proximately due to his service-connected left total knee replacement. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). Given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice and assistance provided to the Veteran is unnecessary, as any deficiency of such would constitute harmless error. II. Factual Background and Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, there must be medical evidence of a (1) 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 present disease or injury. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran essentially contends that his service-connected left knee disability caused him to have an irregular gait, which has contributed to his low back pain and degenerative disc disease. The record reflects that service connection was initially granted for left knee instability, post-operative meniscectomy, and for degenerative changes of the left knee, associated with left knee instability, post-operative meniscectomy, effective prior to December 26, 2006. Thereafter, effective from December 26, 2006, service connection was established for total left knee replacement. With regard to a current disability, the Board notes that the competent medical evidence of record, including private treatment records, a private x-ray, and a private MRI report, show that the Veteran has been shown to have degenerative disc disease of the low back. Thus, he has a current lumbar/low back disability. What is needed in this case is competent medical evidence linking the Veteran's current degenerative disc disease of the low back to the service-connected disability. To that end, the Board notes that there is competent medical evidence both for and against such a link. The competent evidence against such a link includes the May 2009 VA examination report in which the examiner opined that the Veteran's low back pain was not at least as likely as not due to or aggravated by his service-connected knee condition. The examiner indicated she did not have any records that discussed or touched upon the Veteran's back pain that he had since 1978, and that now that the Veteran had a bilateral knee replacement anted walked with a normal gait, it was difficult to determine whether an antalgic gait, which he may have had prior to his knee surgery, could have contributed to this back pain. The competent evidence which supports a link between the Veteran's degenerative disc disease of the low back and his service-connected left knee disability includes three letters from private medical providers. In a letter dated in January 2009, Dr. Krome (who treated the Veteran with physical therapy) indicated that the Veteran had developed an irregular gait due to a deteriorating left knee, which over the years led to a knee replacement in both knees, and that the Veteran also went on to develop degenerative disc disease and arthritis in his low back. Dr. Krome believed that these two problems were causally related. In another letter dated in January 2009, Dr. Miller, a chiropractor, indicated that the Veteran had presented to him in September 1991 for low back pain. Dr. Miller indicated that over the years the Veteran had developed problems with his left knee, which contributed to his lower back condition becoming progressively worse due to improper gait. Dr. Miller further indicated that although chiropractic care provided relief and allowed the Veteran to function better, the chronic knee problem caused structural imbalance leading to chronic recurrent lower back pain. Dr. Miller opined that the Veteran continued to experience lower back pain because his body was trying to compensate for his knee problem. Finally, in a March 2009 letter, Dr. Ong, opined that the Veteran's back problem was more likely than not related to the historical left knee condition which Dr. Ong treated with a total knee replacement. Dr. Ong indicated that an irregular gait due to a deteriorating left knee can eventually contribute to misalignment of the back and degenerative disc disease with pain. In reviewing the competent evidence which supports the Veteran's claim, the Board notes that the three private medical providers opinions cited above are definitive and each includes an explanation and/or rationale for the opinions rendered, which basically support the Veteran's theory that his left knee disability affected his gait, which contributed to his lumbar problems. Thus, the Board finds that the opinions provided by Dr. Krome, Dr. Miller, and Dr. Ong, are probative and persuasive on the question of whether the Veteran's degenerative disc disease of the low back may be related to his service-connected left knee disability. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Board, after having carefully reviewed the record, and weighing the evidence both in support of and against the claim, finds that the evidence is in relative equipoise as to whether the Veteran's degenerative disc disease of the low back is related to his service-connected left total knee replacement. Thus, entitlement to service connection degenerative disc disease of the low back has been established and the appeal is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for degenerative disc disease of the low back is granted. ______________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs