Citation Nr: 1340466 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 09-35 963 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an increased evaluation for a right knee disorder currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for right knee limitation of extension, currently evaluated as 10 percent disabling. 3. Entitlement to a compensable rating for scars of the right knee. 4. Entitlement to service connection for a low back disorder to include as secondary to service-connected disability. 5. Entitlement to service connection for peripheral neuropathy to include as secondary to service connected disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from May 1988 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Oklahoma. In October 2012, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. In March 2013, the Board remanded this claim for additional development. While the case was in Remand status, the Veteran was granted a 10 percent evaluation for limitation of extension of the right knee and a noncompensable evaluation for scars of the right knee. Thus the issues currently before the Board are noted on the first page of this decision. The Board is satisfied that there was substantial compliance with its remand directives as to the issue decided below. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In this regard, the Veteran was examined and a nexus opinion was offered. The case has been returned to the Board and is ready for further review. This appeal was processed using the Virtual VA and VMBS paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records. FINDING OF FACT A low back disability is reasonably related to service connected disability. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the Veteran's low back disability is related to his service-connected disabilities. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA Because the Veteran's claim of entitlement to service connection for a low back disability is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Service Connection The Veteran seeks service connection for a low back disorder as secondary to service connected disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 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 v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Under section 3.310 of VA regulations, 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. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 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) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown , 7 Vet. App. 439, 448 (1995) (en banc). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In rendering a decision on appeal, the Board must 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. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The Veteran seeks service connection for a low back disorder. He contends the disorder is related to his service connected knee disorders and foot disorders. He is service connected for internal derangement of the right knee with degenerative arthritis, left knee degenerative arthritis, and degenerative joint disease of the left first metatarsopheal joint. He also is service-connected for hammertoes and hallux valgus. Further, he has been diagnosed with degenerative joint disease of the lumbar spine. (see, e.g.,VA examination of December 2008). The Veteran does not contend and the record does not show that the low back disorder was incurred in service, as his service treatment records show no complaint, diagnosis or treatment for back complaints, and he has not indicated that he has had back problems prior to 2005. The evidence does not support a finding that service connection on a direct basis is warranted. There is no treatment in service and until many years thereafter and the Veteran has not contended that he was treated in service for any back complaints which continued thereafter. Thus in order the Veteran to prevail, there must be a nexus established between a service-connected disability and his current low back disorder. The Veteran was examined by VA in November 2008. The claims file was reviewed. The Veteran reported back pain since 2005. The Veteran was examined, and the examiner diagnosed degenerative joint disease of the lumbar spine. The examiner stated that in reviewing a 2005 VA examination, the Veteran had a normal gait and the current examination documents a symmetrical gait. It was stated that there was no evidence of asymmetry in the Veteran's gait, no evidence of instability of the gait and no evidence of increased side-to-side motion in his gait. The examiner reported that based on this information, it is less likely as not that the patient's low back condition is directly caused or permanently aggravated by his bilateral knee condition or bilateral service-connected foot conditions. A private examiner statement was received by VA in December 2012. The examiner stated that in his professional opinion it is likely that the Veteran's service-connected knee disorders have a direct relationship causing problems with his low back. He stated that when looking at the Veteran's history of low back pain and knee pain it was noticed that the Veteran did not have a prior history of lumbar spine prior to 2005, and the history of knee pain goes back further than 1999. The examiner stated that he sees patients with a past history of knee pain developing low back pain. He indicated that the change in gait alone can cause an increased wear and tear effect in the lumbar spine. He stated that the twisting of the femur can put the hip joint out of alignment and place excessive stress on the lumbar spine. The examiner stated that one postural deficiency can throw the body out of alignment and in the Veteran's case, the deficiency of the knee is causing increased wear and tear on the lumbar spine, resulting in the pain he is currently experiencing. The Veteran was examined by VA in May 2013. The examiner diagnosed myofacial pain syndrome and degenerative disc disease. The examiner found that the Veteran has a lumbar spine condition that was less likely as not caused by, a result of or aggravated by his military service including his foot or knee conditions. The rationale was that the Veteran has significant low back pain that started in 2005 after he had right knee surgery. It was stated that a review of the record revealed only a mildly antalgic gait in 2008 and a non antalgic gate in 2005 when the back pain initially developed. The examiner pointed out that it was opined by the chiropractor that the uneven gate and imbalance was created by his knee and foot conditions and led to his back condition. The examiner stated that in order for this to be valid, there would have had to have been a significant antalgic gate at the time that his pain developed. The Board has reviewed the Veteran's outpatient treatment records. The VA outpatient treatment report on March 18, 2013 shows that the examiner opined that while it is unlikely that the current foot condition has directly resulted in damage to the lower back, it is likely that his abnormal mechanics associated with the feet have contributed to increased pain and deteriorating of the knees and the lower back and that the Veteran hyperpronates causing a valgus stress on both knees contributing to knee complaints. A March 2013 MRI report notes severe antalgic gait. An August 14, 2013 physical therapy note shows that the Veteran had a severe antalgic gait. In an August 20, 2013 note it was stated that the low back pain started in 2005 when the Veteran's knees and feet began to bother him and that it is likely that his low back disorder relates to his gait and posture changes from the foot and knee issues. On August 27, 2013, it was noted that his back complaints were associated with the service connected foot disorder. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in doing so, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998). With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. 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). The Board is not bound to accept any opinion (from a VA examiner, private physician, or other source) concerning the merits of a claim. Hayes v. Brown, 5 Vet. App. 60 (1993). Rather, it has a duty to assess the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Factors that may be considered in assessing the probative value of a medical opinion include a physician's access to the claims file or pertinent evidence, the thoroughness and detail of the opinion, the accuracy of the factual premise underlying the opinion, the scope of examination, the rationale for the opinion offered, the degree of certainty provided, and the qualifications and expertise of the examiner. See generally Prejean v. West, 13 Vet. App. 444, 448-89 (2000); Sklar v. Brown, 5 Vet. App. 140 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). The Board is aware that a medical opinion cannot be rejected solely because it is based upon history supplied by the claimant. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Moreover, the United States Court of Appeals for Veterans Claims (Court) has very recently held that claims file review, as it pertains to obtaining an overview of a claimant's medical history, is not a strict requirement for medical opinions, and that a medical opinion may not be discounted solely because the opining clinician did not describe review of the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). The Court also stated that "most of the probative value of a medical opinion comes from its reasoning", and that the Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion." Id. Therefore, after weighing all the evidence, the Board finds that the opinions offered are sufficient to satisfy the statutory requirements of producing an adequate statement of reasons and bases where the expert has fairly considered material evidence which appears to support the Veteran's position. See Wray v. Brown, 7 Vet. App. 488, at 492-93 (1995). All opinions offered have probative value. The Board does not find any stated opinion, when viewed in conjunction with the entire record, to be any more persuasive than that provided by any other examiner. It is noted that the VA examiners based their negative findings in part on the absence of a finding of an abnormal gait in 2005. However, while the VA examination in 2005 did note a normal gait, the diagnosis included reference to the left knee. The examiner stated that the left lower extremity most likely carried the brunt of the Veteran's weight to compensate for his chronic right knee pain resulting in overuse of the left knee, and that therefore the Veteran's mild degenerative arthritis of the left knee is at least as likely as not caused by the Veteran's service-connected right knee condition. The Board finds this statement to be pertinent in this claim since service connection was granted for the left knee based on this finding which supports the claim that an abnormal gait existed in 2005. Further the VA outpatient treatment reports as noted associate the low back disorder with the disorders of the knees and feet. After weighing the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence is at least in relative equipoise with regard to whether the Veteran has a lumbar spine disorder that is related to a service-connected disability. For the Veteran to be successful in his claim, he needs to show only that it is at least as likely as not that his claimed disability is related to his bilateral knee disorder and/or his bilateral foot disorders. The Board finds that standard has been met in this case. In sum, the Board is satisfied that the criteria for secondary service connection have been met. In making this determination, the Board is not attempting to make an independent medical determination; rather, it is weighing the evidence of record and making a determination as to the probative value of such evidence. See Evans v. West, 12 Vet. App. 22, 30 (1998). Therefore, when reviewing the evidence in its totality, the Board finds that the evidence in this claim is at the least in equipoise. Therefore, the Board finds that it must give the Veteran the benefit of the doubt, and grant his claim for service connection. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder to include as secondary to service-connected disability is granted. REMAND Reasons for Remand: To have the Veteran examined to evaluate the current manifestations of the right knee disorder and to obtain a nexus opinion and current EMG for the claimed peripheral neuropathy. Increased Evaluation for Right Knee The Veteran seeks an increased evaluation for his service-connected right knee disorder. He was found in May 2013 to have no instability of the knee; however when he was examined by VA in May 2013, it was noted that he used no assistive devices. The outpatient record of August 2013 indicates that he was issued a cane due to his knee disorder and that he had right knee locking as well as buckling. In March 2013 braces were ordered. Extension was noted to 10 degrees in May 2013; however VA outpatient record of August 14, 2013 shows extension to -21 degrees. As was pointed out by the Veteran's attorney, this represents a significant difference in prior readings suggesting that current manifestations have increased since the last disability examination. Additionally while the May 2013 VA examiner noted that the Veteran had surgical scars of the right knee, not greater than 39 cm; the scars were not further described and photographs were not taken. As such anther examination should be conducted. Peripheral Neuropathy The Veteran claims secondary service connection for peripheral neuropathy. VA outpatient records show that in September 2012 and March 2013, it was opined that the Veteran had peripheral neuropathy associated with his back disorder (which the Board has now service connected). The May 2013 VA examiner noted that he had radicular pain or other signs or symptoms due to radiculopathy. However no specific symptoms were documented. The Veteran's attorney has noted that the last EMG that the Veteran underwent was in April 2009 and she has requested that another be performed. A VA nexus opinion should be obtained. McClendon v. Nicholson, 20 Vet. App. 79 (2006), Accordingly the claim is REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination. The claims file and all pertinent the electronic medical records must be provided to the examiner for review. An EMG must be conducted. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must state whether any diagnosed peripheral neuropathy is due to or aggravated by a service connected disability (i.e., bilateral knee disorders, low back disorder and his foot disorders). A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. As to the right knee disorder, any tests deemed appropriate must be accomplished. The examiner should describe all symptomatology related to the Veteran's service-connected right knee disability to specifically include: a. the range of motion in flexion and extension in degrees, to include the degree in motion at which pain begins; b. the degree of instability (if any) in the knee c. any additional functional loss with repetition to include the degree of functional loss that results from any knee symptoms, such as locking, weakness, buckling and instability. Examples of functional loss include the ability to perform "normal working movements" with strength, speed, coordination or endurance. Discuss whether any functional loss is attributable to pain during flare-ups and then quantify in degrees the motion loss during such flare-ups. If there is no limitation of function, limitation of motion, or pain, such should be explicitly noted. d. Note whether pain affects the normal working movement of the right knee, including any decreased movement, strength, speed, or endurance. e. Note any excess fatigability, incoordination, and pain on movement. f. State whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over time. g. Describe, in detail, all objective findings for any incision scars associated with the Veteran's service-connected right knee disability, to include the length, width, texture, and appearance of any scar(s) and whether any scars are unstable or painful on examination. The examiner must consider the Veteran's lay statements regarding his disability, to include how his right knee impairment affects his daily activities. The examiner should identify the limitation of activity imposed by the Veteran's service-connected right knee disability with a full description of the effects the disability has upon his ordinary activities. The examiner should also fully describe the impact the disability has on the Veteran's economic adaptability. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. The RO must notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this Remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the Veteran's claims must be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative must be furnished a supplemental statement of the case and be given the opportunity to respond thereto. The appeal must then be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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