Citation Nr: 1340348 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-27 380 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected post traumatic osteoarthritis of the left knee and chronic synovitis, left knee, status post left total knee arthroplasty (left knee disability). 3. Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1966 to May 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal from January 2006 and August 2012 rating decisions, which respectively denied service connection for a right knee disability and reopened and denied a claim for service connection for a low back disability. The issue of service connection for a right knee disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. FINDINGS OF FACT 1. An April 2009 rating decision denied the Veteran service connection for a low back disability based essentially on a finding that such disability was not shown to be related to his service, to include as due to his service-connected left knee disability. 2. Evidence received since the April 2009 rating decision includes evidence not of record at the time of that decision, suggests that the Veteran's low back disability may be related to his service; relates to an unestablished fact necessary to substantiate the claim of service connection for a low back disability; and raises a reasonable possibility of substantiating the claim. 3. It is reasonably shown that the Veteran's low back disability is related to service, to include as due to his service-connected left knee disability. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a low back disability may be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2013). 2. Service connection for a low back disability is warranted. 38 U.S.C.A. §§ 1110, 1157 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Inasmuch as this decision grants the appellant's claim, there is no reason to belabor the impact of the VCAA on this matter, since any notice error or duty to assist omission is harmless. New & Material Evidence, Low Back Disability An April 2009 rating decision denied the Veteran's claim of service connection for a low back disability based essentially on a finding that such disability was not shown to be related to his service, to include as due to his service-connected left knee disability. The Veteran was notified of that decision and did not timely file a notice of disagreement with that decision (or submit additional evidence within a year following). It became final based on the evidence of record at the time of the decision. 38 U.S.C.A. § 7105. Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. § 7105. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). In Vargas-Gonzales v. West, 12 Vet. App. 321 (1999), the Court concluded that a determination as to whether evidence is new is separate from a determination as to whether the evidence is material. If the Board determines that the evidence is not new, then it is not necessary to continue the analysis to determine whether it is material. Id. at 327. Service connection may be granted for disability due to disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases (including arthritis) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time postservice (one year for arthritis). 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Likewise, certain chronic diseases, including arthritis, may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To substantiate a claim of service connection, there must be evidence of a current claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1153, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative 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. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence received since the April 2009 rating decision includes a March 2010 VA treatment record from the Veteran's primary care physician, who stated "there is no doubt his lumbar pain is being exacerbated by his modified weight bearing because of the left knee." This evidence was not of record in 2009, and is new. As it addresses the question of whether the Veteran's low back disability is related to service, to include as due to his service-connected left knee disability, it pertains to an unestablished fact necessary to substantiate the claim of service connection for a low back disability, and raises a reasonable possibility of substantiating such claim. Consequently, particularly in light of the "low threshold" standard outlined by the Court in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that the evidence is both new and material, and that the claim of service connection for a low back disability may be reopened. De novo review of the claim is discussed below. Service Connection - Low Back Disability The Veteran asserts that he suffers from a low back disability as a result of "many years of a combination of abnormal walking with my left knee." In essence, he claims that his low back disability is due to his service-connected left knee disability. See Veteran statement, dated August 2012. For secondary service connection to be granted, generally there must be (1) medical evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (2012); see Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). It is not in dispute that the Veteran now has a low back disability, as the evidence of record, including the March 2009 VA examination report, reflects a diagnosis of such. The Veteran is also service-connected for a left knee disability. Therefore, the first and second Wallin elements have clearly been satisfied. What remains to be established is whether the Veteran's low back disability was caused or aggravated by his service-connected left knee disability. The record contains both positive and negative evidence in this regard. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Against the claim is the opinion from the March 2009 VA examiner, who found that the Veteran's lumbar degenerative disc disease was not permanently aggravated by his service-connected left knee disability. The examiner stated that "lumbar degenerative disc disease is a stand alone entity consistent with a normal aging process" and indicated that this opinion is based on current orthopedic literature of expected aging of the lumbar spine. Supporting the Veteran's claim is a March 2010 treatment record from the Veteran's primary care physician, who stated, "there is no doubt his lumbar pain is being exacerbated by his modified weight bearing because of the left knee." The Board finds that the medical evidence appears to be at least in a state of equipoise. In such a case, as noted above, the Board is required by law to afford the benefit of the doubt to the Veteran. The Board notes that, in Alemany v. Brown, 9 Vet. App. 518 (1996), the United States Court of Appeals for Veterans Claims (CAVC or Court) held that in light of the benefit of the doubt provisions of 38 U.S.C.A. § 5107(b), an accurate determination of etiology is not a condition precedent to granting service connection; nor is "definite etiology" or "obvious etiology." Thus, resolving all doubt in favor of the Veteran, the Board concludes that competent medical evidence reflects that it is at least as likely as not that the Veteran's current low back disability is secondary to his service-connected left knee disability. Therefore, service connection is warranted for this disability. ORDER The appeal seeking to reopen a claim of service connection for a low back disability is granted. Service connection for a low back disability is granted. REMAND Regarding the matter of service connection for a right knee disability, further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to this claim. See 38 C.F.R. § 3.159. It is not shown or alleged that a right knee disability was manifested in, or is directly related to, the Veteran's service. The Veteran's theory of entitlement is one of secondary service connection. He contends that his right knee disability is secondary to his service-connected left knee disability. The question of whether or not his left knee disability has an impact on his right knee disability is one that is inherently medical in nature. Right knee osteoarthritis has been diagnosed. On October 2006 VA examination, the examiner opined that the Veteran's arthritis of his right knee is "neither adjunct nor aggravated by the patient's service-connected left knee," but is instead most likely caused by or a result of an aging process. The Veteran was again afforded a VA examination in April 2012. This examiner opined that the "right knee condition is less likely as not secondary to his left knee condition," stating that the clinical reviews do not support that the contralateral knee degenerative joint disease result in this condition. Although the October 2006 examiner provides a reason for why the Veteran's right knee disability may not be caused by his service-connected left knee disability, the opinion does fully explain the examiner's rationale regarding no aggravation. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Thus, the examination report (nexus opinion) is inadequate for rating purposes. Regarding the April 2012 examiner's opinion, the examiner did not address whether the Veteran's service-connected left knee disability has aggravated his right knee disability. Accordingly, this opinion is also inadequate for rating purposes and a supplemental medical opinion in this matter is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should forward the Veteran's claims files to an orthopedist for review and an advisory medical opinion regarding the etiology of the Veteran's right knee disability, and specifically whether or not the Veteran's right knee disability is/has been aggravated by his left knee disability. If the opinion of the examiner is that the right knee disability was indeed aggravated by the Veteran's left knee disability, the examiner should specify, so far as is possible, the degree of right knee disability that has resulted from such aggravation (i.e., identify the baseline level of severity of the right knee disability). The orthopedist is asked to explain the rationale for the opinions in detail, citing to supporting factual data. 2. The RO should then review the record and undertake any other development suggested by the development ordered above. Thereafter, the RO should readjudicate the claim remaining on appeal. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ ROBERT SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs