Citation Nr: 1750176 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 11-31 256 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to a service-connected right knee disability. 2. Entitlement to service connection for a right hip disability, to include as secondary to a service-connected right knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Stepanick, Counsel INTRODUCTION The Veteran served on active duty from December 1979 to December 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which, as relevant here, denied service connection for degenerative disc disease of the lower back and right hip bursitis. In September 2014, the Board remanded the current issues to obtain additional VA treatment records and a VA examination. The requested records were obtained by the Agency of Original Jurisdiction (AOJ) in September 2014, and a VA examination and opinion, and an addendum opinion, were obtained in November 2014 and February 2015, respectively. In February 2017, the Board requested a medical expert opinion from a member of the Veterans Health Administration (VHA), which was provided in March 2017. Thereafter, the Board sought clarification regarding several aspects of that opinion, which was provided in April 2017. There is no evidence that additional examinations are in order or that any relevant records have yet to be requested. Thus, there has been substantial compliance with the Board's prior remand instructions, and an additional remand is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The most probative evidence is against finding that the Veteran's current low back disability had its onset in service, is related to service, or was caused or aggravated by his service-connected right knee disability. 2. The most probative evidence is against finding that the Veteran's current right hip disability had its onset in service, is related to service, or was caused or aggravated by his service-connected right knee disability. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a low back disability have not been met. 38 U.S.C.S. §§ 1101, 1112, 1131, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The requirements for establishing service connection for a right hip disability have not been met. 38 U.S.C.S. §§ 1101, 1131, 5107 (LexisNexis 2017); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for low back and right hip disabilities. His primary assertion during the course of the claim has been that his service-connected right knee disability-specifically, an altered gait related to that disability-caused or aggravated those conditions. Unfortunately, the preponderance of the evidence is against finding that he is entitled to service connection for a low back disability or a right hip disability on that or any other basis. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.S. § 1131; 38 C.F.R. § 3.303(a) (2017). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran has been diagnosed with a low back disability-degenerative changes in the lumbar spine, including arthritis and degenerative disc disease-during the claim period. He has also been diagnosed with a right hip disability-bursitis. Thus, the remaining questions are whether those current disabilities arose in or are otherwise related to the Veteran's period of service, such that service connection is warranted on a direct basis, or, if not, whether they were caused or aggravated by his service-connected right knee disability, such that service connection is warranted on a secondary basis. Direct Service Connection Turning first to the question of direct service connection, the Board initially notes that the Veteran has not asserted, nor does the record suggest, that his right hip disability had its onset during or is otherwise directly related to service. Indeed, the Veteran has consistently reported that his hip pain began in 1987 or 1988, while he was working as a mail carrier for the United States Postal Service, and he has also consistently reported that he believes it was caused or aggravated by his right knee condition. Given those assertions and the lack of in-service complaints of or treatment for a hip condition, the Board finds that the direct theory of entitlement need not be further discussed in connection with that disability. The Veteran's service treatment records (STRs) do, on the other hand, document treatment for complaints of back pain. Specifically, in August 1981, the Veteran complained of a six-day history of low back pain, without trauma, and was diagnosed with back strain. Several days later, his back condition was noted to have improved, but he was placed on a seven-day profile for residual myospasm. In March 1982, the Veteran sought treatment for a one-day history of back pain and painless hematuria following heavy exertion. The clinician noted that the Veteran associated his back pain with exercise. As both a current low back disability (degenerative disc disease and arthritis) and an in-service back injury have been established, the Board turns to the evidence relevant to the question of whether a causal relationship exists between that current disability and in-service injury or, as the Veteran has been diagnosed with arthritis, whether service connection may be established based on the chronic disease presumption. See 38 U.S.C.S. § 1112(a); 38 C.F.R. §§ 3.307, 3.309(a). The Veteran was discharged from service in December 1983, and his October 1983 separation examination did not note a spinal abnormality. His post-service medical treatment records first document descriptions of back pain in October 2005, at which time he reported "arthritic" pain. During VA treatment in March 2007, the Veteran again described back pain that was attributed to arthritis, and a March 2010 x-ray study of his back confirmed "mild early degenerative changes (mild arthritis)." During a June 2010 VA examination, however, the Veteran asserted that he first experienced his current low back pain in approximately 1987, while carrying his mail bag. The foregoing evidence does not suggest that the Veteran's current low back disability arose during service, and the evidence does not otherwise establish a link between his current disability and his in-service back strains. In so finding, the Board acknowledges that in November 2014, a VA examiner pointed out the Veteran's history of in-service back strains and noted that they "could be associated with a direct service connection." However, in light of that equivocal but potentially favorable statement, the examiner was subsequently asked, in a January 2015 addendum opinion request, to clarify whether such a connection was "at least as likely as not." In response, she opined that the Veteran's current low back disability was not at least as likely as not related to service, as his in-service strains did not develop into a chronic back problem, which she characterized as requiring a 12-week duration of symptoms. She concluded that the Veteran's current back condition was more likely due to wear and tear related to his job as a mail carrier, which required a lot of walking, lifting, carrying weight, and bending. In support of that conclusion, she cited an UpToDate article that discussed the manner in which wear and tear can lead to the onset of spinal conditions such as degenerative disc disease and, thereafter, other changes, including bone spurs. The Board finds the 2014 examiner's opinion on the question of a causal link probative, as it was based on a review of the claims file and relevant facts, and included a detailed rationale. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The opinion is also supported by the findings of an orthopedic surgeon who issued VHA opinions in March and April 2017 and who attributed the Veteran's current low back disability to his work as a mail carrier and significant post-service weight gain. There is no medical opinion of record, competent or otherwise, to the contrary. There is also no indication that the Veteran's current arthritis of the lumbar spine manifested during service or within one year of service. Indeed, arthritis of the spine was not discussed, including by the Veteran, until 2005, and mild arthritis was first documented by imaging study in 2010, over 25 years after his separation from service. Moreover, the Veteran has reported first experiencing any type of post-service back pain in 1987, at the earliest. As a result, service connection based on the chronic disease presumption, including on the basis of continuity of symptomatology since service, is also not warranted. See 38 U.S.C.S. § 1112(a); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). In short, without any evidence that the Veteran's low back disability had its onset during or is otherwise related to service, and without any indication that the chronic disease presumption may be applied, service connection for that disability is not warranted on a direct basis. Secondary Service Connection The Board turns, then, to the Veteran's primary assertion-that his service-connected right knee disability caused or aggravated his current low back and right hip disabilities. Unfortunately, the preponderance of the evidence is also against finding that service connection for either condition is warranted based on that theory of entitlement. None of the medical professionals who have reviewed the Veteran's file and issued opinions in connection with this claim have found it at least as likely as not that his right knee disability caused or aggravated his low back disability or right hip disability. In that regard, in June 2010, a VA examiner concluded that the Veteran's back and hip disabilities were most likely due to his occupation following service and were not related to his service-connected knee. In November 2014, the examiner who issued a negative opinion regarding a relationship between the Veteran's back and service also opined that the Veteran's hip and back disabilities were not aggravated by a right knee disability. She noted that medical literature did not support linking a previous knee injury to a hip problem unless it was related to limping, and asserted that the Veteran did not have a limp in his gait or other findings that would contribute to a problem with his hip or back. She acknowledged that limping could cause back pain or aggravate preexisting pain, but stated that studies directly relating to the incidence of back pain in the general population for individuals who limped were limited and inconclusive. The examiner explained that an antalgic gait would likely need to be severe and prolonged for it to have a significant impact on the initiation or aggravation of arthritis of the spine. She further noted that the Veteran gained 93 pounds between 2000 and 2012 and that medical literature directly links arthritis conditions and joint pains to obesity. In a February 2015 addendum opinion, the same examiner further clarified her conclusions regarding the etiology of the Veteran's back and hip disabilities. Specifically, she attributed those disabilities to the wear and tear associated with the Veteran's work as a mail carrier, noting that his position required physical demands such as lifting, carrying weight, bending, and years of engaging in long periods of walking. She also reiterated that the Veteran did not have a limp in his gait that would cause malalignment or pressure to those areas. In light of the 2014 examiner's discussion of gait and the fact that an antalgic or unsteady gait was documented on various occasions during the Veteran's VA examinations and treatment, the Board sought a VHA opinion from an orthopedic surgeon in February 2017. At that time, it asked the surgeon to, in addition to addressing the typical etiological questions, specifically discuss whether current peer-reviewed literature supported a correlation between an antalgic gait associated with a damaged knee joint and the development of hip or back problems. The requested opinion was provided in a March 2017 letter and an April 2017 clarification letter. Initially, the Board notes that numbered paragraph 1 of the orthopedic surgeon's April 2017 clarification letter appears to contain a typographical error ("does support" rather than "does not support"), as that phrase contradicts statements made both later in that letter and in his March 2017 letter. That error does not, however, render the overall opinion unclear. Indeed, the surgeon essentially concluded in both opinions that, although the gait abnormalities documented in the evidence of record were as likely as not related to the Veteran's right knee disability, neither the Veteran's back condition nor his right hip condition was "provably scientifically connected to the service-connected knee injury." The surgeon acknowledged that there could be some correlation between a knee and a hip condition or a knee and a back condition in that they are seen together in a higher association, but he nevertheless concluded that this Veteran's hip and back disabilities were less likely than not related to his knee injury and more likely than not related to normal progression of the spinal aging process, weight gain, and many years working as a mail carrier. To the extent it may be argued that the surgeon's discussion of a "higher association" between the claimed conditions and a knee disability requires further clarification, the Board notes that there is no bar to a medical professional issuing an inconclusive opinion after obtaining and considering all relevant and available information. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) ("[V]alid application of current medical knowledge could yield multiple possible etiologies with none more likely than not the cause of a veteran's disability, such that a physician could only speculate as to the cause of a claimant's disability or condition."). In this instance, the record suggests the surgeon's discussion in that regard was, in fact, based on valid application of current medical knowledge. Notably, his somewhat nebulous statement is in keeping with the 2014 examiner's note that, even in the presence of limping, study results addressing back pain in individuals who walked with limps were limited and inconclusive. More to the point, putting aside the narrow discussion of a "higher association" between a knee disability and a back or hip disability, both the surgeon's and the 2014 VA examiner's opinions are unequivocal in that they acknowledged the possibility that a gait-altering knee condition could have some relationship with a hip or back disability but nevertheless concluded that such a relationship was less likely than not causing or aggravating this Veteran's hip and back disabilities in light of the other, more relevant factors documented in the claims file. Those opinions, viewed collectively, are probative, as they address all pertinent evidence and provide thorough explanations for the conclusions reached. Stefl, 21 Vet. App. at 124. In so finding, the Board acknowledges that the 2014 examiner did not consider the instances of gait alteration that are documented in the Veteran's claims file. However, the fact that one or more parts of a medical opinion may be inadequate (or arguably "insufficient") does not render the entire opinion "void," particularly when dealing with complex diagnostic and causation issues, if other parts of the medical opinion have actual validity (based on a review of the evidence). Here, the orthopedic surgeon did consider those gait alterations and nevertheless reached the same conclusions as the 2014 examiner. Furthermore, the 2014 examiner explicitly noted use of a cane, but a normal gait, during her examination of the Veteran. That finding and several other reports of a normal gait documented in the claims file, combined with the 2014 examiner's general discussion of the severity of gait abnormality that would be required to cause or aggravate a back disability, in particular, lend further support to the orthopedic surgeon's subsequent conclusions. In short, the Board simply cannot conclude that the Veteran's right knee disability, or any gait abnormality associated therewith, at least as likely as not caused or aggravated his low back and right hip disabilities, as there is no competent medical opinion of record establishing such relationships. Although the Board is free to supplement insufficient medical evidence by seeking additional opinions, it is not free to ignore or disregard sufficient medical evidence or to substitute its own judgment on medical matters. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991); Willis v. Derwinski, 1 Vet. App. 66, 70 (1991). For the same reason that the Board may not substitute its own judgment on medical matters for that of the competent medical professionals who have reviewed the file, it also cannot rely on the Veteran's lay opinion regarding the etiology of his back and hip disabilities. The Board certainly does not dispute that laypersons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, while the Veteran may be competent to report the manifestation of his symptoms, he is not competent to provide medical opinions regarding the causes or aggravating factors of those symptoms. As indicated above, this claim turns on the question of a relationship between the Veteran's low back and right hip disabilities and his right knee disability-matters within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran has not been shown to have appropriate medical training and expertise, he is not competent to render probative (i.e., persuasive) such matters. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Bostain v. West, 11 Vet. App. 124, 127 (1998); Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Thus, his lay assertions in that regard have no probative value. In summary, the competent and credible evidence of record does not approach a state of equipoise that enables the Board to find that the Veteran's current low back and right hip disabilities had their onset during service, are related to service, or were caused or aggravated by his service-connected right knee disability. As the preponderance of the evidence is against the claims, the benefit of the doubt doctrine is not applicable, and service connection for a low back disability and a right hip disability must be denied. See 38 U.S.C.S. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a low back disability is denied. Service connection for a right hip disability is denied. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs