Citation Nr: 1343479 Decision Date: 12/31/13 Archive Date: 01/07/14 DOCKET NO. 05-39 594 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1968 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified in a Travel Board hearing before the undersigned Veterans Law Judge in July 2008. A copy of the hearing transcript is associated with the claims file. In December 2008, January 2011, and December 2012, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The matter has properly been returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2013, the Board requested an opinion from a Veterans Health Administration (VHA) medical expert in orthopedic surgery or neurosurgery. In August 2013, the requested VHA opinion was incorporated into the record. In September 2013, the Veteran was provided with a copy of the VHA opinion. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the Virtual VA system to ensure a complete assessment of the evidence. FINDINGS OF FACT 1. The Veteran has a current diagnosis of spurs, degenerative spondylitis, spondylosis, and degenerative disc disease of the low back. 2. The Veteran is service connected for a right knee disability. 3. The low back disability is proximately due to service-connected right knee disability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.310, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2013). The claim of service connection for a low back disability has been considered with respect to VA's duties to notify and assist. Given the favorable outcome noted in this decision, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal, the Board must also 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. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). A veteran as a lay person is competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (citing Jandreau at 1372). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Low Back Disability The Veteran contends that the low back disability originated in service. In particular, he contends that he injured the low back in service when he was running from a hutch and a bomb hit him, and he has had low back pain since service. Alternatively, he asserts that the low back disability is secondary to the service-connected right knee disability. Specifically, the Veteran argues that the low back disability is aggravated by the limp resulting from the right knee disability. As the Board is granting service connection based on secondary service connection (adjudicated below), the contended theories of direct and presumptive service connection pursuant to the same benefit is rendered moot because there remain no questions of law or fact as to the fully granted issue; therefore, the direct and presumptive service connection theories will not be further discussed. See 38 U.S.C.A. § 7104 (West 2002) (stating that the Board decides "questions" of law or fact). As stated above, to prevail on the issue of secondary service causation, the record must show competent evidence of (1) a current disability, (2) a service-connected disability, and (3) a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. After a review of all the evidence, the Board first finds that the evidence shows that the Veteran's low back disability has been variously diagnosed as spurs, degenerative spondylitis, spondylosis, and degenerative disc disease. Most recently in a February 2009 VA treatment record, on the question of current diagnosis, the Veteran was assessed with spondylosis of the lumbosacral spine. The Board next finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's low back disability is proximately due to the service-connected right knee disability. In this regard, the February 2004 RO rating decision granted service connection for a right knee disability. On the question of the relationship of currently diagnosed low back disability to a service-connected disability, favorable evidence includes a letter from Dr. "G.G.," who stated that limping associated with the Veteran's right knee disability could have affected his back. The Veteran underwent VA examinations in March 2009 and February 2011 with a January 2013 addendum medical opinion. The Board found these examinations and the addendum medical opinion to be inadequate and requested a VHA medical opinion from an expert in orthopedic surgery or neurosurgery to assist in resolving the issue on appeal. In August 2013, an orthopedic surgeon provided a favorable medical opinion as to the relationship between the current low back disability and service-connected right knee disability. Specifically, the VHA physician cited medical literature (a copy of which is included with his opinion) of a study conducted by an orthopedic surgeon that investigated the relationship of a limp to lower back pain. The study established that back pain is associated with some types of limping, including paralytic, antalgic, and short-leg, and that biomechanically limping can aggravate a pre-existing back pain. Based on this study and the Veteran's medical history, which revealed an antalgic gait that was caused by a compensable injury (the right knee disability), the VHA physician opined that it is more likely than not that the low back pain was aggravated by the service-connected right knee disability. The VHA physician further opined that the statement from Dr. G.G. is a valid statement. The VHA physician's opinion is competent and probative medical evidence because it is factually accurate, as the VHA physician had knowledge of the relevant evidence in this case, relied on accurate facts, and gave a fully articulated opinion that is supported by a sound reasoning. There is no other competent medical opinion of record against the claim that adequately addresses the etiology of the Veteran's low back disability and the relationship of the low back disability to the service-connected right knee disability. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a low back disability, as secondary to service-connected right knee disability, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a low back disability is granted. ____________________________________________ K.J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs