Citation Nr: 1752563 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-06 327 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine. 2. Entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected physical disabilities. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1971 to October 1975. This matter comes before the Board of Veterans' Appeals (Board) from a March 2012 RO decision. The Veteran presented sworn testimony in support of his claim during a September 2016 hearing before the undersigned Veterans Law Judge. During the September 2016 hearing, the Veteran asserted that he is unemployable on account of his knee problems, his back problems, and his psychiatric problems. This implied claim for a total disability rating due to unemployability is referred to the RO for appropriate action. The issue of entitlement to service connection for an acquired psychiatric disability, to include as secondary to service-connected physical disabilities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The Veteran's lumbar spine degenerative disc disease was proximately caused or worsened by his service-connected knee problems. CONCLUSION OF LAW Service connection for lumbar spine degenerative disc disease is warranted. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is seeking service connection for a low back disability on the basis that it is secondary to, or proximately caused by gait alterations related to his service-connected bilateral knee disabilities. In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board thoroughly reviewed all the evidence in the Veteran's VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. Disability which is proximately due to or the result of a service-connected disease or injury also 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. Service connection is in effect for instability of both knees and for degenerative joint disease of both knees. The diagnosis of lumbar spine degenerative disc disease is well established in the record. The Veteran's medical records reflect treatment including steroid injections for both knees and his low back during recent years. A VA examiner, who is a nurse practitioner, has opined that the Veteran's degenerative disc disease is the product of aging and is unrelated to his knee disabilities. An orthopedic surgeon, however, has opined that the Veteran's back pain is the result of or has been made worse by altered gait mechanics due to his knee problems. The Board chooses to accord greater probative weight to the statement of the orthopedic surgeon, in light of the orthopedic specialist's greater expertise with back and knee issues. The Veteran's hearing testimony regarding his knees hurting and hampering his ability to walk supports this conclusion as well. The evidence supports the Veteran's claim. Service connection for lumbar spine degenerative disc disease is therefore warranted. ORDER Service connection for degenerative disc disease of the lumbar spine is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND The Veteran contends he has developed a psychiatric disorder secondary to the limitations and pain he experiences from his service-connected disabilities. Service connection is in effect for instability of both knees, degenerative joint disease of both knees, prostatitis with erectile dysfunction, and residuals of a traumatic injury affecting the left ulnar nerve. The Board has now granted service connection for lumbar spine degenerative disc disease. The medical evidence is clear that the Veteran experiences pain and limitation related to his knees and his back. There is less information in the medical records pertaining to his prostatitis and left arm injury residuals; however, it is reasonable to assume there is some discomfort and possible psychological distress involved in those disabilities as well. The medical evidence regarding the Veteran's psychiatric state is less clear, however. His VA treatment records through 2016 do not include a psychiatric diagnosis, other than substance abuse dependence. However, the Veteran's representative has submitted a copy of a more recent VA record, dated in July 2017. This record is an intake visit with the substance abuse clinic. During this visit he was given a provisional diagnosis of "mood disorder secondary to general medical condition, cocaine use disorder and alcohol use disorder." The report also reflects that after the initial intake visit, the Veteran declined enrollment into the VA's substance abuse program. Although this July 2017 report constitutes evidence in support of the Veteran's claim, to the extent that it tends to show the Veteran has a psychiatric diagnosis related to his "general medical condition." However it is not sufficient to support a grant of service connection for service connection for an acquired psychiatric disorder secondary to his service-connected knees, back, ulnar nerve, and prostatitis. The Veteran's general medical condition includes many nonservice-connected disabilities, to include heart disease, prostate cancer, genital herpes, cervical spine pain and radiculopathy, shoulder problems, and liver function problems, in addition to the substance and alcohol abuse problems. Therefore additional medical opinion is necessary to determine whether the Veteran's diagnosed mood disorder can be attributed to his service-connected disabilities, rather than to nonservice-connected disabilities and to his drug abuse. Under VA law, no compensation shall be paid if the disability resulting from injury or disease in service is a result of a veteran's willful misconduct or abuse of alcohol or drugs. 38 U.S.C. § 105, 1110. Direct service connection may be granted only when a disability was incurred or aggravated in the line of duty, and not the result of a veteran's willful misconduct or, for claims filed after October 31, 1990, including this one, the result of his abuse of alcohol or drugs. However, organic diseases and disabilities that are a secondary result of the chronic use of drugs and infections coinciding with the injection of drugs will not be considered of willful misconduct origin. 38 C.F.R. § 3.301. As the appeal is being remanded, the Veteran's VA medical records should be updated for the file as well. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA medical treatment afforded to the Veteran after July 2016 by the Hampton VA Medical Center and all related clinics to include the substance abuse clinic, for inclusion in the file. 2. After obtaining the records requested above, the Veteran should be afforded a VA examination by a physician with appropriate expertise to determine the Veteran's current psychiatric diagnosis. If an acquired psychiatric diagnosis is confirmed, then the examiner should render an informed opinion as to whether it is at least as likely as not that such disability is caused OR aggravated beyond the normal progress of the disorder by the Veteran's service-connected disabilities, including his knees, low back, ulnar nerve disability and prostatitis. The opinion should include thorough discussion of the Veteran's significant nonservice-connected disabilities as well. The claims folder must be made available to the examiner for review before the examination. All tests and studies deemed helpful by the examiner should be accomplished in conjunction with the examination. The complete rationale for all opinions expressed should be fully explained. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Continued on next page This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs