Citation Nr: 1642842 Decision Date: 11/08/16 Archive Date: 12/01/16 DOCKET NO. 11-13 220 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a low back condition, to include as secondary to service-connected internal derangement of the right knee, status post arthroscopy. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1975 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Muskogee, Oklahoma Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran filed a notice of disagreement (NOD) in August 2010. He was provided with a statement of the case (SOC) in March 2011 and perfected his appeal with the timely submission of a VA Form 9 in March 2011. A supplemental statement of the case (SSOC) was provided in May 2012. The Veteran was afforded a Travel Board hearing before the undersigned Veterans Law Judge in April 2013. A copy of the transcript has been associated with the claims file. In June 2014, the Board remanded this appeal to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The Board notes that its June 2014 remand included the issues of entitlement to service connection for a low back condition and a left knee condition to include as secondary to service connected right knee condition. In a November 2014 rating decision, the RO granted the claim of service connection for left knee strain with an evaluation of 10 percent effective June 8, 2010. As the grant of service connection for left knee strain constitutes a full grant of the benefits on this issue, the claim of service connection for a left knee condition to include as secondary to service connected right knee condition, is no longer in appellate status. See Grantham v. Brown, 114 F .3d 1156 (1997). In addition, as the Veteran has not appealed the effective date or level of disability assigned for his left knee strain, which are separate appealable issues, the only remaining issue on appeal is that of entitlement to service connection for a low back condition, which has now returned to the Board for appellate disposition. A review of the Virtual VA paperless claims processing system revealed VA outpatient treatment records dated August 2010 to December 2011 and the April 2013 hearing transcripts. FINDING OF FACT There is competent and credible medical opinion evidence that shows that the Veteran's low back condition was aggravated by his service-connected internal derangement of the right knee, status post arthroscopy. CONCLUSION OF LAW Service connection for a low back condition, as secondary to the service-connected internal derangement of the right knee, status post arthroscopy, is established. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). In light of the favorable disposition, a discussion as to whether VA's duties to notify and assist the Veteran have been satisfied is not required. The Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the Veteran. II. Service Connection Service connection may be granted for a disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 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. Certain listed disabilities may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309 (2015). Service connection may also be established on a secondary basis for disability which is proximately due to, or the result of, a service connected disease or injury. See 38 C.F.R. § 3.310 (a) (2015). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to establish service connection for a claimed disability on a secondary basis, there must be (1) evidence of a current disability; (2) a service-connected disability; and (3) evidence of a nexus between the service-connected disease or injury and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not necessarily accorded to each piece of evidence contained in the record; every item of evidence does not necessarily have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Turning to the evidence of record, it shows that the Veteran is currently diagnosed with a low back condition. The Veteran is also service-connected for internal derangement of the right knee, status post arthroscopy. The Board notes that the Veteran's service treatment records are silent for any complaints, treatment or diagnosis for a low back condition. However, it is documented that the Veteran injured his right knee in service. Post service treatment records reflect the Veteran's complaints of chronic low back pain and the use of a brace. VA examinations in February 1981 and June 1986 reflect that the Veteran was in a motorcycle accident in December 1980, during which he fractured his back and pelvis. The Veteran subsequently underwent four surgeries on his back to include a discectomy and fusion of discs as well as the removal of orthopedic hardware. During the Veteran's April 2013 Board hearing, he testified that he had to use a cane as a result of his right knee condition and that the pain from his right knee "worked itself up into" his right hip and back. The Veteran testified that he believed that his back problem was aggravated by his service connected right knee condition, as he had to shift his weight to accommodate and compensate for his right knee. At the September 2014 VA examination, following a review of the claims file and a physical examination of the Veteran, the VA examiner determined that while a baseline level of severity could not be established, the Veteran's current low back condition was at least as likely as not aggravated beyond its natural progression by his service connected right knee condition. The examiner reasoned that, if the Veteran had not had a knee condition and had a normal gait; it was likely that there would be less overall mechanical stresses on the Veteran's low back. The examiner opined that with the Veteran's right knee condition, it was likely that the Veteran had a gait disturbance which created mechanical stress on the Veteran's low back, leading to aggravation of the Veteran's low back condition beyond its natural progression. There are no other medical nexus opinions of record in the claims file. The Board finds that there is competent and credible medical opinion evidence that shows that the Veteran's current low back condition was aggravated by his service-connected right knee condition. Accordingly, service connection for a low back condition as secondary to service-connected internal derangement of the right knee, status post arthroscopy, is warranted. The Board notes that although 38 C.F.R. § 3.310(b) indicates that VA will not concede aggravation unless the baseline severity of the nonservice-connected disease or injury is established, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the RO's determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. § 3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the RO having the responsibility for determining the degree of aggravation in assigning the rating. ORDER Service connection for a low back condition, as secondary to service-connected internal derangement of the right knee, status post arthroscopy, is granted. ____________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs