Citation Nr: 1743355 Decision Date: 09/28/17 Archive Date: 10/10/17 DOCKET NO. 09-46 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a back disorder as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD Andrew Mack, Counsel INTRODUCTION The Veteran served on active duty from January 1986 to January 1990. This appeal is before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is included in the claims file. In May 2015, the Board denied the claim on appeal, and he appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2016 Memorandum Decision, the Court remanded the matter to the Board. The Board remanded the claim in May 2017. Also, as the Board noted in May 2017, in May 2015 the Board remanded the issues of entitlement to service connection for right knee, right ankle, and left knee disabilities. The agency of original jurisdiction (AOJ) has not yet processed and readjudicated these claims. Therefore they are not currently before the Board and will not be addressed here. FINDING OF FACT The Veteran's right knee disability did not cause and has not aggravated his obesity, and did not cause and has not aggravated his current back disorder in any other way. CONCLUSION OF LAW The criteria for service connection for a back disorder as secondary to a service-connected right knee disability have not been met. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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). In this case, required notice was provided in a March 2008 letter. As to VA's duty to assist, all necessary development has been accomplished. The Veteran's service treatment records, VA medical records, and identified private treatment records have been obtained. Also, the Veteran was provided a VA examination and opinion in connection with his claim in July 2017. Moreover, in obtaining updated VA treatment records and the June 2017 VA examination report, the AOJ substantially complied with the Board's May 2017 remand instructions and the Court's October 2016 Memorandum Decision, as discussed below. See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that in June 2017 the Veteran requested a new VA examination, asserting that he "[felt] that the [June 2017] examination was not done properly." However, the Veteran has not identified any way in which the June 2017 examination was not performed properly, or why the examiner's opinion in this case would be inadequate. Thus, the Board finds that remand for a new examination is not warranted. Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be established on a secondary basis for a disability that is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). 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 the claimant. The Veteran is service connected for right knee degenerative joint disease, rated 10 percent disabling. In its May 2015 decision, the Board noted that the Veteran had been diagnosed during the appeal period with lumbar strain and ostearthritis, but determined that the Veteran's back disorder was not related to his active duty service. The Board further determined that "the evidence does not establish the Veteran's currently diagnosed back disorder was caused or permanently increased in severity by his service-connected right knee disability." In doing so, the Board relied on the May 2008 opinion of a VA examiner that "the Veteran had lumbar strain secondary to his obesity, and therefore not related to his service-connected right knee disability." It also relied on the opinion of a January 2015 private orthopedic physician, submitted by the Veteran, that "the Veteran's current back disorder was less likely than not secondary to his service-connected right knee injury." In its October 2016 Memorandum Decision addressing the Board's May 2015 decision, while acknowledging that the Veteran did "not challenge the Board's determination that service connection for a back disorder on a direct basis was not demonstrated," the Court determined "that the Board, when adjudicating service connection for a back disorder on a secondary basis, offered inadequate reasons or bases by failing to address the issue of secondary service connection based on aggravation and failed to consider whether the [Veteran's] right knee disability proximately caused his back disorder by causing or aggravating his obesity." The Court determined that, "[a]lthough the Board found the May 2008 VA examination adequate for evaluation purposes, it did not explain on what basis it was able to rely on the examiner's opinion to reach a negative conclusion as to aggravation, particularly here, where... there existed evidence that the service-connected right knee condition resulted in obesity that led to the back condition." The Court noted evidence cited by the Veteran supporting this theory, specifically a May 2008 examiner's notation of report that the Veteran had limited walking secondary to his right knee, and a June 2011 VA treatment record noting that the Veteran had gained significant weight since sustaining ankle and knee injuries during service. The Court determined that, given this evidence, the Veteran's "theory is a factual determination that the Board must make based upon medical evidence of record," and that, "[t]o the extent that the Board requires additional medical evidence to address these matters, it must seek clarification from the May 2008 VA examiner or obtain another medical opinion as to the issue at hand." The Board remanded the Veteran's claim in May 2017 to obtain such a medical opinion, which was obtained by the AOJ in June 2017. After examining the Veteran and reviewing the claims file, the June 2017 VA examiner opined that the Veteran's current lumbar spine disorder was neither caused by or the result of, nor aggravated beyond its natural progression by, his right knee disability, stating that it was "very evident that the lumbar spine issue was not associated with the knees." Regarding obesity, the examiner noted that the Veteran had been obese since prior to service, and that his current obesity was the natural progression of the condition. The examiner further explained that the evidence did not show that that the Veteran's knee joint had an effect on his obesity, noting that weight control was a matter of calorie intake, and that a joint disorder would have no effect on this. In support of this, the examiner specifically cited an October 2006 VA "Nutrition Education consult" for the Veteran, which noted the following: "Has recently lost weight (intentional) by cutting back on meals. [Patient] currently trying to lose weight. Current home diet excessive in carbs, calories and fat; modified as able with [patient's] assist. Nutritional labs [within normal limits]." According to the examiner, this "clinician visit gives the consummate reason for the [Veteran's] weight problems." The Board finds the June 2017 VA examiner's opinion to be highly probative. A clear rationale for the opinion was given with specific citation to the record in support of it. Furthermore, the record as a whole supports the opinion and explanation given by the examiner. The extensive medical record reflects that the Veteran's obesity and weight problems have consistently been attributed to his diet and nutritional habits. February through December 2006 VA treatment records reflect that the Veteran had morbid obesity with a family history of such and most family members overweight, with the Veteran having the nutritional problems of a diet excessive in carbs, calories, fat, and sugary drinks. He has been assessed or diagnosed throughout the medical record-including in March, May, and July 2007, December 2016, and January and March 2017-as having "Obesity related to excessive energy intake" or "Excessive calorie intake" as evidenced by weight and reported food and beverage intake, and high caloric density or large portions of food/beverages. The record, furthermore, reflects that the Veteran has actually lost significant weight through control of his diet during certain periods, in accordance with recommendations by his medical providers, and has at other times gained weight by not controlling his diet. In October 2006, it was noted that the Veteran had "recently lost weight (intentional) by cutting back on meals," and in December 2006 it was noted that he had lost 25 pounds since September by cutting back on late night eating, and trying to watch portion control. In December 2012, it was noted that the Veteran had "lost 27 pounds since last clinic visit one year ago," by increasing protein intake per dietician with protein supplement and meat," and "[b]etter control of portion size, eats 6 meals a day with small snacks in between." Conversely, in March 2007 it was noted that the "Veteran had been previously making good progress towards wt [weight] loss but recently started drinking juice & has re-gained"; in May 2007 the "Veteran had been previously making good progress towards wt loss quit drinking juice however fat intake from high foods may have contributed to wt gain"; and in January 2017 the Veteran was noted to have had 10 pounds of weight gain since his last visit as a result of "binge eating" at night as well and eating to stop himself from worrying. Moreover, there is no evidence reflecting that the Veteran has been unable to exercise due to his knee disability, or any other disability. Rather, exercise has consistently been recommended by medical professionals, and years of medical records show that the Veteran has been able to exercise despite his knee disability. In October 2006, he reported walking 3 days a week and in December 2006 reported walking daily for physical activity. In March and May 2007 he reported walking laps around a track 2 to 3 days a week for activity, and in July 2007 reported walking and riding a bicycle for activity. March to June 2007 VA and private treatment records reflect continuous aquatic therapy treatment with recorded water exercises 60 minutus twice a week, and a July 2007 private treatment record noted that his exercise plan was walking every evening for 60 minutes. In July 2014 it was noted that his weight was stable and that he continued to exercise regularly, and in April 2015 it was noted that for activity the Veteran worked out at a gym and rode a bike 30 minutes every other day. In December 2016 he reported riding a bike around the neighborhood for exercise, and in January 2017 reported walking around at work for 8-10 hours per day and lifting weights twice a week. Thus, while the Veteran's right knee degenerative joint disease certainly might impact his ability to perform physical activity impacting the knees, particularly intensive physical activity, the record does not reflect that he was prevented from performing recommended exercise, including many exercises involving the knees. In this regard, in December 2012, it was noted that the Veteran "continues to do weight training/cardio exercises at gym" four times per week, even though he had "been somewhat limited due to arthritic knee pain," and it was noted at the time that he was "Doing well on diet and exercise plan." Such disability also did not, as noted by the VA June 2017 VA examiner and as evidenced throughout the record, affect his ability to control his diet, which has consistently been noted to be the reason for his obesity and the cause of his various periods of weight gain and weight loss. The weight of the probative evidence thus reflects that the Veteran's weight gain since service has been the natural progress of his obesity based on diet and nutritional factors. Such obesity-established as being the cause of the Veteran's current back disorder-was not caused and is not aggravated by his right knee disability, as explained in the July 2017 VA opinion. As noted in that opinion and as is reflected throughout the extensive medical record, the Veteran has been able to, and has, actually controlled his weight by changes to his diet and lost control of his weight when losing control of his diet. His right knee disability, moreover, has not prevented exercise, as shown in the years of treatment records reflecting numerous forms of exercise engaged in by the Veteran. Therefore, a preponderance of the evidence is against a finding that the Veteran's right knee disability caused or aggravates his obesity or caused or aggravates his current back disorder in any other way. Accordingly, service connection for a back disorder as secondary to a service-connected right knee disability must be denied. ORDER Service connection for a back disorder as secondary to a service-connected right knee disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs