Citation Nr: 1611014 Decision Date: 03/17/16 Archive Date: 03/23/16 DOCKET NO. 10-09 357 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from January 1988 to May 1992. This matter comes to the Board of Veterans Appeals (Board) on appeal from an October 2008 decision of the Regional Office (RO) in Philadelphia, Pennsylvania, that denied service connection for a low back disorder. The Veteran appeared before the undersigned at a Travel Board hearing in May 2013. A transcript of that hearing is of record. In May 2013 and October 2015, the Veteran submitted a waiver of initial consideration of the evidence by the agency of original jurisdiction (AOJ). 38 C.F.R. § 20. 1304(c) (2015). In an April 2014 decision, the Board denied entitlement to service connection for a low back disability to include lumbosacral strain and degenerative joint disease and disc disease of the lumbar spine on a direct and presumptive basis. In April 2014 and June 2015, the issue of service connection for a low back disability on a secondary basis was remanded for additional development. A medical opinion was obtained in September 2015. The Board finds that the AOJ substantially complied with the mandates of the Board remands and will proceed with review. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In an April 2014 decision, the Board denied entitlement to service connection for an urinary disorder. The Veteran appealed the denial of service connection for an urinary disorder to the United States Court of Appeals for Veterans Claims (Court). In November 2014, VA and the Veteran filed a joint motion for remand of the case. The parties moved for the April 2014 Board decision denying service connection for an urinary disorder to be vacated, and that issue remanded for additional action. The Court issued a November 2014 order granting the joint motion. In June 2015, the Board remanded this issue to the AOJ for action in accordance with the joint motion for remand. In a September 2015 rating decision, the AOJ granted service connection for urethral stricture and assigned a zero percent evaluation effective September 26, 2006 and a 10 percent evaluation from July 29, 2015. This action constituted a full grant of the benefits sought, and these claims are no longer open for appellate review. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). FINDING OF FACT The evidence of record makes it less likely than not that the Veteran's current low back disability is caused by or permanently aggravated by the service-connected right knee, left knee, or left ankle disabilities. CONCLUSION OF LAW The criteria for service connection for a low back disability to include lumbosacral strain and degenerative joint disease and disc disease of the lumbar spine on a secondary basis are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION 1. Duty to Notify and Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA has met its duty to notify for the claim. The RO provided notice letters to the Veteran in November 2006 and February 2007, prior to the initial adjudication of the claim, and in January 2012. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of the claim at this time is warranted. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. Service treatment records have been obtained and are associated with the file. VA treatment records dated from 1993 to 2012 are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. VA provided examinations in 2008 and 2014 to obtain medical evidence as to the nature and likely etiology of the claimed low back disability. An addendum medical opinion was obtained in September 2015. The Board finds that the VA examination findings and medical opinions, taken together, are adequate for adjudication purposes. The examinations were performed by medical professionals and the medical opinion was provided by a medical professional based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The VA examination reports and medical opinion are accurate and fully descriptive. The medical opinion addresses whether the service-connected knee or left ankle disabilities impacted the current low back disability. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the Veterans Law Judge (VLJ) who conducts a Board hearing fulfill duties to (1) fully explain the issue and (2) suggest the submission of evidence that may have been overlooked. At the May 2013 hearing, the Veteran was assisted by a representative. The undersigned VLJ fully explained the issues on appeal and suggested the submission of evidence that may have been overlooked. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. 2. Service Connection Legal Authority 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 can be granted for a disability that is proximately due to or the result of by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). 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(a). Service connection can be granted for a disability that is aggravated by a service-connected disability. Compensation can be paid for any additional impairment resulting from the service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Except as provided in 38 C.F.R. § 3.300(c) (claims for secondary service connection based on the effects of tobacco products received after June 9, 1998), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 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(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level." Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.102, 4.3, 4.7. 3. Analysis At the hearing before the Board in May 2013, the Veteran asserted that the service-connected left ankle, right knee, and left knee disabilities impacted his low back and caused the claimed low back disability. See the Board Hearing Transcript, dated in May 2013, pages 9 to 11. Service connection can be granted for a disability that is proximately due to or the result of by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Service connection is in effect for a left ankle osteoarthritis and a 10 percent rating is currently assigned from September 26, 2006. Service connection is in effect for patellofemoral syndrome of the right and left knees and zero percent ratings are assigned from September 26, 2006 and 10 percent ratings are assigned from February 13, 2012. Based upon a review of all the lay and medical evidence, the Board finds the weight of the competent and credible evidence shows that the current low back disability to include lumbosacral strain and degenerative joint disease and disc disease of the lumbar spine is not proximately due to or aggravated by the service-connected right knee, left knee, or left ankle disabilities. The weight of the competent and credible evidence shows that the service-connected right knee, left knee, and left ankle disabilities did not cause the low back disability. The Veteran was afforded a VA examination of the back in July 2008. The examiner noted that the current low back pain may be caused by degenerative disease of the lumbosacral spine but without plain films from a few years ago, the examiner was unable to make this diagnosis. The diagnosis was low back pain, not incapacitating and of no relationship to military service and presumably due to degenerative disease of the lumbosacral spine. The VA examiner did not provide an opinion as to whether the service-connected left ankle and knee disabilities caused or aggravated the Veteran's claimed low back disability. The Board notes that the February 2012 VA examination indicates that the Veteran had a mild antalgic gait due to the left ankle disability. Lumbar spine degenerative joint disease was first detected by x-ray examination in May 2014. The Veteran was afforded a VA examination in May 2014. It was noted that the Veteran had pain in the lower back starting in 1988, he had back issues in active service, and he was seen and given pain medications. It was noted that at this time, he has back pain when he bends over or sits for a long period of time. The Veteran wore an elastic back support and treatment at this time includes heat pads, Epsom salts baths, liniment, and Motrin. He is not getting any specific treatment at this time but he would seek treatment at VA if the back was hurting him. The Veteran had pain in the middle of the low back and on occasion the pain would go down the front of both thighs to the inside of the legs. It was further noted that the Veteran continued to have pain in the left ankle and the knees. He has injections into both knees about a year ago. He uses a left ankle brace, compression stockings, and liniment. On examination, the Veteran walked without a significant limp. Examination of the knees revealed range of motion from zero degrees to 125 degrees with pain at the extremes of flexion. Three repetitions maintained the range of motion. The Veteran had good stability in the knees. X-ray examination of the knees revealed mild degenerative joint disease. Examination of the left ankle revealed mild swelling on the lateral aspect. Plantar flexion was to 45 degrees with no pain. Dorsiflexion was to 20 degrees with pain at the extremes. Three repetitions maintained the range of motion. X-ray examination of the left ankle revealed a fracture of the left malleolus with no degenerative joint disease. The VA examiner opined that the claimed back disability was less likely than not (less than 50% probability) proximately due to or the result of the Veteran's service-connected condition. The examiner indicated that the rationale was that the Veteran does not have a limp and thus gait would not impose extra stress on the back. The examiner noted that the knees have a free range of motion and x-rays show mild disease and such joint should impose additional stress on the low back. The examiner stated that the left ankle has a free range of motion and there is no evidence of degenerative joint disease in this joint; hence, it would impose stress on the back. In a September 2015 addendum VA opinion, the VA examiner clarified the May 2014 VA opinion. The VA examiner indicated that the May 2014 opinion was a source of confusion because of missing words. The VA examiner restated the opinion and stated that regarding aggravation of the back condition by the left ankle, left knee, and right knee disabilities, the same factors apply that relate to secondary service connection. The VA examiner stated that the Veteran does not have a limp and thus gait would not impose extra stress on the back. The VA examiner indicated that the knees have a free range of motion and x-rays show mild disease and such joint should not impose additional stress on the low back. The VA examiner stated that the left ankle had a free range of motion and there is no evidence of degenerative joint disease in this joint and therefore it would not impose stress on the back. The Board finds the VA medical opinion to have great evidentiary weight as the opinion reflects a comprehensive and reasoned review of the entire evidentiary record. The VA examiner reviewed the claims folder and the Veteran's medical history, considered the Veteran's report of symptoms, considered the impact the service-connected disabilities had on the claimed back disability, and examined the Veteran before rendering the medical opinion. The VA examiner cited to the facts that support the opinion. Factors for assessing the probative value of a medical opinion are the examiner's access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The medical opinion is based on sufficient facts and data. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As such, the Board finds the VA medical opinion has great probative weight. There is probative evidence of record which support the findings of the VA medical opinion that the Veteran does not have a limp and thus gait would not impose extra stress on the claimed back disability. VA primary care treatment records dated in January 2011, May 2011, September 2011, December 2011, January 2012, and August 2012 indicate that the Veteran reported that he had left ankle pain and the pain limits prolonged standing but he usually was able to walk okay. VA records from a neurologic clinic indicate that gait was normal. See the VA records dated in August 2009, November 2009, January 2010, October 2010, April 2011, August 2011, and September 2012. The February 2012 VA examination report indicates that the Veteran had an antalgic gait that was characterized as mild. The Veteran himself has related his low back disability to the service-connected right knee, left knee, and left ankle disabilities. The Veteran, as a lay person, is competent to describe observable symptoms such as pain. See Layno v. Brown, 6 Vet. App. 465 (1994). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, an opinion as to the etiology and onset of a back disability or disc disease falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Some medical issues require specialized training for a determination as to diagnosis and causation, and such issues are therefore not susceptible of lay opinions on etiology. There is no evidence that the Veteran has medical expertise. The Veteran has not provided or identified any medical evidence to support his contentions. There is no competent evidence to establish a relationship between the current low back disability and the service-connected knee and left ankle disabilities. There is no competent evidence to establish that the service-connected knee and left ankle disabilities aggravate the low back disability. As such, service connection for back disability to include lumbosacral strain and degenerative joint disease and disc disease of the lumbar spine as secondary to the service-connected right knee, left knee, and left ankle disabilities is denied. 38 C.F.R. § 3.310; Allen, supra. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 ; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for a low back disability to include lumbosacral strain and degenerative joint disease and disc disease of the lumbar spine on a secondary basis is denied. ____________________________________________ D. C. Spickler Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs