Citation Nr: 1339987 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 08-00 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a low back disability other than right sacroiliac joint dysfunction (SIJD), claimed as secondary to service-connected disabilities. 2. Entitlement to service connection for a right hip disability, claimed as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Murray, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1977 to October 1977, and from October 2003 to October 2004. These matters come before the Board of Veteran's Appeals (the Board) on appeal of a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which denied the Veteran's service-connection claims for a chronic lumbar sprain [claimed as a back condition] and for a hip condition. The Veteran disagreed with these determinations, and perfected an appeal as to both issues. The Veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) in January 2009. He failed to report for this hearing and his hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2013). In March 2012, the Board separated the Veteran's claim for service connection for low back disorder into a claim for right sacroiliac joint dysfunction (SIJD) and a claim for a low back disorder other than SIJD. The Board awarded service connection for right SIJD, and remanded the claim for low back disorder other than SIJD as well as right hip disorder to the RO (via the Appeals Management Center (AMC)) for additional development. The award of service connection for right SIJD was implemented in a March 2012 rating decision and the Veteran was assigned a 10 percent disability rating, effective from December 14, 2006. The Veteran did not appeal that initial award. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. The issue of entitlement to service connection for right hip disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT After resolving any doubt in the Veteran's favor, the evidence of record demonstrates that the Veteran's low back disorder, identified as degenerative disc disease, chronic sprain, and status-post laminectomy, was aggravated by his service-connected right knee disability. CONCLUSION OF LAW Service connection for low back disorder, as secondary to his service-connected right knee disability, is warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. The Veteran asserts that he has a current low back disorder that is proximately caused by his service-connected right knee disability. He contends that his back problems began after he injured his knee during his period of service and his back has been aggravated by his abnormal gait due to his right knee problems and surgeries. Service connection may be granted for a disability which is proximately due to, or the result of another service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In addition to his right sacroiliac joint dysfunction (SIJD), the record reflects that the Veteran has been diagnosed with degenerative disc disease, chronic lumbar sprain, and status-post laminectomy. Both the Veteran's VA physical therapist as well as his private treating physician have stated that the Veteran's low back disorder is aggravated by his service-connected right knee disability. Pertinently, in a December 2008 private treatment noted, his treating physician noted that based on the findings from clinical examination, the Veteran's "low back problem is secondary to his knee problem, that with the altered gait from the knee situation, this probably resulted in the low back dysfunction." In addition, in a December 2009 VA treatment record, the Veteran's treating VA physical therapist noted that the Veteran's chronic low back problems are "complicated by his [right] knee problems and antalgic gait." To treat this condition, the therapist focused on strengthening the Veteran's right knee to improve his overall gait pattern. The Board acknowledges that the record does contain a contrary medical nexus opinion by the VA examiner from a May 2007 VA examination report. However, upon review of all the medical opinions of record, the Board does not find that one medical opinion is more probative than the others. As such, the Board finds that the medical evidence of record is at least in equipoise on whether the Veteran's current low back disorder, other than SIJD, is secondary to his service-connected right knee disability. After resolving any doubt in the Veteran's favor, the evidence of record favors a finding that the Veteran's current low back disorder, other than SIJD, is aggravated by his service-connected right knee disability. Accordingly, the benefit sought on appeal is allowed. ORDER Entitlement to service connection for low back disorder, other than SIJD, is granted. REMAND The Veteran seeks service connection for a right hip disorder, to include as secondary to service-connected low back and right knee disabilities. After a review of the record, the Board finds that additional development is necessary prior to adjudication of the claim. Although the Veteran was afforded a VA examination in March 2012 to determine the nature and etiology of any right hip disorder, pursuant to the Board's March 2012 remand order, clarifications of the 2012 examination findings are needed. Although the VA examiner opined that the Veteran's right hip was a "non-condition" that was less likely than not related to his military service or service connected disability, but the examiner only supported this medical conclusion by noting that the Veteran's right hip condition was a "non-condition." The findings noted on clinical examination, however, revealed limitation of motion in the right hip and the 2012 x-ray films show findings of "minimal osteoarthritis spurring about acetabulum... Stable Hip... Minor Abnormality." The Board finds that an addendum statement is needed from the VA examiner that clarifies whether the clinical evidence is sufficient to support a diagnosis and whether any such condition is proximately caused or aggravated by his service-connected disabilities. The examiner should be instructed to comment on the May 2007 and March 2012 VA x-ray reports that contain similar findings. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should ask the Veteran to identify any outstanding records of pertinent VA and private treatment, and obtain those records. 2. Arrange for the Veteran's claims folder to be reviewed by the VA examiner who conducted the March 2012, or if unavailable, by an appropriate specialist, to provide an addendum statement on the precise nature and etiology of any right hip disorder. The claims folder must be made available to and reviewed by the examiner in conjunction with the examination. In particular, the 2007 and 2012 radiographic evidence should be reviewed and noted in the addendum report. If it is determined that an examination is needed, then all studies or tests deemed necessary should be accomplished. The findings from any examination should be recorded in the examination report. Based on a review of the record, the examiner should render an opinion, consistent with sound medical judgment on the following: a) Does the Veteran have a current diagnosed disorder involving his right hip? If the examiner concludes that the Veteran does not have a current diagnosed right hip disorder, then the examiner should provide a statement explaining why the clinical evidence of reduced range of motion and 2007/2012 radiographic evidence of osteoarthritis spurring about acetabulum does not support a diagnosed right hip disorder. b) If the Veteran does have a current diagnosed right hip disorder, is it at least as likely as not (50 percent or greater probability) that the right hip disorder is proximately caused or aggravated by the Veteran's service connected knee and low back disabilities. The examiner should comment on the Veteran's asserts that his altered gait due to his right knee disability has aggravated his right hip problems. A full rationale is requested for all opinions expressed by the examiner. If the examiner is unable to provide a requested opinion, he or she should explain why. 3. The RO/AMC should review the claims folder to ensure that all the foregoing requested development is completed, and to arrange for any additional development indicated. The RO/AMC should then re-adjudicate the claim on appeal. If any benefit sought remains denied, the RO should issue an appropriate SSOC and provide the Veteran and his representative the requisite time period to respond. The claim should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 Supp. 2012). ______________________________________________ DAVID L.WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs