Citation Nr: 1607049 Decision Date: 02/24/16 Archive Date: 03/01/16 DOCKET NO. 09-39 933 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a lumbosacral spine disorder to include degenerative disc disease and degenerative joint disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from January 1968 to June 1969. He served in the Republic of Vietnam and was awarded the Purple Heart. This matter came before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Waco, Texas, Regional Office (RO) which denied service connection for lumbar spine degenerative disc disease with back pain and intermittent radicular symptoms. In August 2011, the Veteran was afforded a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In August 2012, the Board remanded the Veteran's appeal to the RO for additional action. In September 2014, the Board determined that the RO had failed to comply with its prior Remand instructions and again remanded the Veteran's appeal to the RO for additional action. The Board has reviewed both the Veterans Benefit Management System (VBMS) and the "Virtual VA" files. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of the Veteran's appeal should take into consideration the existence of this electronic record. The Board has reframed the issue on appeal in accordance with the United States Court of Appeals for Veterans Claims' (Court) decision in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (finding that a claim for benefits for one psychiatric disability also encompassed benefits based on other psychiatric diagnoses and should be considered by the Board to be within the scope of the filed claim). FINDINGS OF FACT 1. Service connection is currently in effect for left above the ankle foot amputation residuals. 2. Lumbosacral spine degenerative disc disease and degenerative joint disease are etiologically related to the Veteran's service-connected left above the ankle foot amputation residuals. CONCLUSION OF LAW The criteria for service connection for lumbosacral spine degenerative disc disease and degenerative joint disease are met. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 3.326(a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and to Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103, must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate his claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. In this decision, the Board grants the service connection for lumbosacral spine degenerative disc disease and degenerative joint disease. Therefore, no discussion of VA's duties to notify and to assist is necessary as to that issue. II. Service Connection The Veteran asserts that service connection for lumbosacral spine degenerative disc disease and degenerative joint disease is warranted secondary to his service-connected left above the ankle foot amputation residuals. Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The Court has clarified that service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310(a) where it is demonstrated that a service-connected disorder has aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is currently in effect for left above the ankle foot amputation residuals. In his April 2008 claim for service connection, the Veteran advanced that he was "now having lower back pain because of uneven gait." In a June 2008 written statement, the Veteran reported that "I walk with a limp and the pain in my back has gotten worse over the years." The report of an August 2008 VA spine examination states that the Veteran presented a history of radiating back pain since 1990. Contemporaneous X-ray studies of the lumbosacral spine revealed findings consistent with lumbar spine rotatory scoliosis to the left and lumbosacral spine degenerative disc disease and degenerative joint disease. The Veteran was diagnosed with lumbar spine degenerative disc disease with back pain and intermittent radicular symptoms. The report of a January 2015 VA spine examination indicates that the Veteran had a "close-to-normal gait with his prosthesis;" and "[h]is trunk lists to the left slightly in ambulation." The Veteran was diagnosed with lumbar spine degenerative disc disease and degenerative joint disease. The examiner commented that: "[l]ower extremity amputation results in a significant reduction in mobility and predisposes individuals to secondary musculoskeletal impairments, such as low back pain and [osteoarthritis ] of the intact limb joints;" "[a]ltered gait mechanics have been postulated to play a causative role in the development of these secondary disabilities;" ""[t]he cause of current diagnosis of degenerative disc/ joint disease is unknown [and] has been thought to be multifactorial;" "[b]ack pain can result from injuries of the lower extremities which produce noticeable changes in posture, stance and gait;" and "[t]hese injuries include fractures of the long bones with > 2.5 cm loss of bone length, ankylosis of the major joints - ankle, knees or hips, or infections involving the spine or joints on same side of the back that is affected." The VA physician concluded that "[t]he Veteran does not have objective physical findings or history of these conditions, and his gait and stance were normal" and "[d]ue to the lack of findings of an orthopedic disorder which would affect his spine, it is less likely that his present lumbar strain is related to the injury sustained in service." The Board observes that during the examination, the Veteran was found to have an abnormal gait with listing and was not diagnosed with lumbar strain. Service connection is currently in effect for left above the ankle foot amputation residuals. VA X-ray studies of the lumbosacral spine revealed lumbosacral degenerative disc disease and degenerative joint disease and lumbar rotatory scoliosis to the left. While not a model of clarity, the January 2015 VA spine examination report states that the Veteran was observed to have an abnormal gait with listing of the torso to the left on ambulation and that such symptoms have generally been found to be associated with the onset of spinal abnormalities. Upon resolution of all reasonable doubt in the Veteran's favor, the Board concludes that service connection for lumbosacral spine degenerative disc disease and degenerative joint disease is now warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 3.310(a). ORDER Service connection for lumbosacral spine degenerative disc disease and degenerative joint disease is granted. ____________________________________________ T. D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs