Citation Nr: 1523075 Decision Date: 06/01/15 Archive Date: 06/16/15 DOCKET NO. 12-20 404 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease (a back disability), as secondary to service-connected right and left knee disabilities. ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1987 to July 1987, and from November 1988 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In February 2014 and December 2014, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for further development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). An additional discussion of the AOJ's compliance with the February and December 2014 Board Remands is included in the Duties to Notify and Assist section below. This appeal was processed using both the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS). Accordingly, any future review of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran has a current disability of T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease. 2. The Veteran is service connected for left knee synovitis and right knee patellofemoral syndrome. 3. The current back disability is not caused by, or increased in severity beyond the natural progress of the disease by, the service-connected right or left knee disabilities. CONCLUSION OF LAW The criteria for service connection for T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease, as secondary to service-connected right and left knee disabilities, are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2014). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2014). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In a timely letter dated in July 2010, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection for a back disability, as well as what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The July 2010 letter also included provisions for disability ratings and for the effective date of the claim. In the July 2010 letter, the Veteran was also provided notice regarding what information and evidence is needed to substantiate a claim for service connection on a secondary basis. With regard to the duty to assist, VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records, VA examinations, and the Veteran's statements. The Veteran was afforded VA medical examinations in connection with the claim for service connection for a back disability in August 2010 and February 2015. The March 2014 addendum medical opinion and February 2015 VA examination were obtained pursuant to the February 2014 and December 2014 Board Remands, respectively. 38 C.F.R. § 3.159(c)(4) (2014); see Stegall, 11 Vet. App. at 271. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the August 2010 VA examination, March 2014 addendum medical opinion, and February 2015 VA examination, taken together, are adequate with regard to the claim for service connection for a back disability. The fact that one part of a medical opinion may be inadequate (or arguably "insufficient") does not render the entire examination or opinion "void," particularly dealing with complex causation issues, if that part of the medical opinion has actual validity (based on a review of the evidence). The opinions, as a whole, consider all the pertinent evidence of record, to include the statements of the Veteran, and provided rationales for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue of service connection for a back disability on a secondary basis has been met. 38 C.F.R. § 3.159(c)(4). As such, VA has provided assistance to the Veteran as required under 38 U.S.C.A. §§ 5103a, 5103A, and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and the representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal. Mayfield at 1328. Hence, no further notice or assistance is required to fulfill VA's duties to notify and assist the Veteran in the development of the appeal adjudicated herein. 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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 this case, T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease are not "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on "chronic" in-service symptoms and "continuous" post-service symptoms under 38 C.F.R. § 3.303(b) do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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, 21 Vet. App. a 303. 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). The United States Court of Appeals for Veterans Claims has held that 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). Medical evidence that is speculative, general, or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). 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 Back Disability The Veteran contends that the current T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease are related to service. Specifically, the Veteran asserts that the back disability is caused by the limp due to the pain resulting from the service-connected knee disabilities. See January 2011 Notice of Disagreement. Because the Veteran has not contended that the back disability had its onset during active service, and the evidence of record does not otherwise indicate that the T12 compression fracture, lumbar facet arthropathy, or lumbar degenerative disc disease was causally or etiologically related to service, the Board need not address whether service connection is warranted for a back disability on a direct basis. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (VA must consider the possible theories of entitlement raised by the claimant or the evidence of record). Initially, the Board finds that the Veteran has a current back disability. In multiple VA treatment records, the Veteran was diagnosed with, and treated for, lumbar facet arthropathy and lumbar degenerative disc disease. In the February 2015 VA examination report, the Veteran was diagnosed with T12 compression fracture. The Board next finds that the Veteran is service connected for left knee synovitis and right knee patellofemoral syndrome. Service connection for synovitis of the left knee was established in a November 1996 rating decision with an effective date of December 14, 1995. Service connection for right knee patellofemoral pain syndrome was established in a December 1996 rating decision with an effective date of December 14, 1995. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran's back disability is not proximately due to, or permanently worsened in severity beyond the natural progression (aggravated) by, the service-connected right or left knee disabilities. During the August 2010 VA examination, while the Veteran was diagnosed with T12 compression fracture, the VA examiner did not opine as to the etiology of the back disability. In the March 2014 addendum medical opinion, the VA examiner opined that the Veteran's back disability was not caused by, and would not be expected to be medically aggravated by, the knee pain. In the December 2014 Remand, the Board found the March 2014 VA examiner's rationale inadequate and remanded the appeal for another VA examination. In the February 2015 VA examination, the VA examiner opined that the Veteran's knee condition did not cause the T12 compression fracture as any limp caused by the service-connected knee conditions would not produce enough force to fracture a vertebra. The VA examiner indicated that the most likely source of the fractured vertebra is the fall from a horse reported in 2010. The VA examiner further explained that, as the Veteran's T12 chronic compression fracture, diagnosed in 2010, pre-existed the 2011 report of "favoritism to his right lower extremity," it neither caused nor aggravated the T12 compression fracture reported as well-healed by 2012. The February 2015 VA examiner further concurred with the opinion rendered by the March 2014 VA examiner, and opined that the back disability is not caused by, or would it be expected to be medically aggravated by, the knee pain. There are no other medical opinions of record that purport to relate the back disability to any service-connected disability. The VA examiners in March 2014 and February 2015 concluded that the Veteran's service-connected right and left knee disabilities did not cause or aggravate the back disability, diagnosed as T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease. Thus, based on the most persuasive and probative evidence in this case, the Board finds that the back disability is not proximately due to, the result of, or aggravated by, the service-connected right or left knee disabilities. As such, secondary service connection for back disability, to include on the basis of aggravation, is not warranted. 38 C.F.R. § 3.310; Allen, supra. The Veteran has repeatedly asserted that the service-connected right and left knee disabilities caused or aggravated the back disability due to an altered gait. The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson, 581 F.3d at 1316 (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau, 492 F.3d at 1377). In this case, the causes of the Veteran's T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease involve complex medical etiological questions because they pertain to the origin and progression of the Veteran's musculoskeletal conditions. The Veteran is competent to relate symptoms of a back disability that he experienced at any time, but he is not competent to opine on whether there is a link between the current T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease and the service-connected right and left knee disabilities because such conclusions regarding aggravation require specific, highly specialized, medical knowledge and training regarding the unseen and complex processes of the musculoskeletal systems (including joints), knowledge of the various risk factors and causes of musculoskeletal conditions, specific clinical testing for musculoskeletal conditions, and knowledge of likely date of onset and ranges of progression of musculoskeletal conditions that the Veteran is not shown to possess. Such opinion would require not only knowledge of the musculoskeletal system, but also specialized knowledge regarding the interaction of different joints within that system. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL is too "medically complex" for lay diagnosis based on symptoms); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (holding that rheumatic fever is not a disorder capable of lay diagnosis). In this case, the theory of secondary service connection turns on the question of whether there exists a secondary relationship between the current T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease and the service-connected right and left knee disabilities. The only probative competent opinions of record that directly address the likelihood of a secondary relationship between the back disability and the service-connected right and left knee disabilities, which were provided in the March 2014 VA addendum medical opinion and February 2015 VA examination, weigh against a secondary relationship between the back disability and the service-connected right and left knee disabilities on either a causation or aggravation basis, and weigh against the claim. The weight of the competent and credible evidence demonstrates no relationship (causation or aggravation) between the Veteran's current T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease, and the service-connected right and left knee disabilities. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease on a secondary basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. As discussed above, the Board does not reach the theory of direct service connection because neither the Veteran nor the evidence has asserted or suggested that the back disability was incurred in service, and has consistently contended only that the T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease, diagnosed after service, are due to the altered gait caused by the service-connected right and left knee disabilities. ORDER Service connection for T12 compression fracture, lumbar facet arthropathy, and lumbar degenerative disc disease is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs