Citation Nr: 1752748 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 10-33 954 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a low back disability, to include as secondary to service-connected right and left knee disabilities. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to September 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri which denied service connection for a low back disability. In his September 2012 substantive appeal, the Veteran requested a Board hearing. However, in April 2013 the Veteran withdrew this request. In February 2014 and September 2016, the Board remanded the claims for further development. Significantly, in the February 2014 remand, the Board took jurisdiction of the TDIU claim pursuant to the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) (providing that, when evidence of unemployability is presented in cases such as this, the issue of whether a TDIU will be assigned may be considered part and parcel of the underlying rating issue). This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems. FINDINGS OF FACT 1. The Veteran currently has degenerative arthritis and a strain of the lumbar spine and the competent medical opinions on the question of whether the Veteran's current lumbar spine disorder is etiologically related to or aggravated by his service-connected bilateral knee disorders are in relative equipoise. 2. The Veteran is service-connected for status post total left knee arthroplasty to include scar (previously rated as left knee posterior cruciate ligament injury, status post reconstruction, with degenerative arthritis), evaluated as 60 percent disabling; and right knee strain with DJD associated with the left knee, evaluated as 10 percent disabling. As above, service connection for a back disability has been granted as well but no disability rating has been assigned for this disability yet. A combined disability evaluation of 70 percent is in effect from November 1, 2011. 3. The Veteran is employed full time as an in-home medical health provider. His service-connected disabilities, singularly or in combination, have not been shown to be of such severity as to preclude substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disability are met. 38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017). 2. The criteria for assignment of a TDIU have not been met. 38 C.F.R. §§ 3.340 4.16(a), (b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits under the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the TDIU claim adjudicated below, an April 2014 letter advised the Veteran of the evidence and information necessary to substantiate his TDIU claim as well as his and VA's respective responsibilities in obtaining such evidence and information. Also, the Board finds that there was substantial compliance with the February 2014 and September 2016 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In particular, pursuant to the February 2014 Board remand, the Veteran was sent a VCAA letter in April 2014. Pursuant to the September 2016 Board remand, the Veteran was sent a blank VA Form 21-8940 (formal application for a TDIU) in October 2016. Accordingly, the Board finds that there has been substantial compliance with the February 2014 and September 2016 Board remand directives and, therefore, no further remand is necessary. See Stegall, supra; D'Aries, 22 Vet. App. at 104 (2008). II. Service Connection The Veteran is seeking service connection for a low back disability. Specifically, the Veteran claims that his current low back disability is proximately due to or aggravated by his service-connected bilateral knee disabilities. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, this 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). 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(d). Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury. That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The Veteran submitted the current claim on appeal in November 2009. In connection with this claim, he underwent an initial VA spine examination in October 2010. The October 2010 VA examiner noted that the Veteran began experiencing an antalgic gait beginning November 2009 and that his gait had been getting worse over time. The examiner also wrote that the Veteran "may have a slight problem with the lower back, which could be attributed to the gait abnormality, which has progressed, as documented, over the past 3 to 4 years." The examiner indicated that this was not a "significant disability" but nevertheless, felt that the Veteran did have a relatively minor low back problem, which was "at least as likely as not a result of [his service-connected] left knee condition." The Veteran was afforded a second VA spine examination in June 2011. This examiner diagnosed possible degenerative disc disease of the lumbar spine and possible lumbar sprain. The examiner noted the Veteran's contention that his back disability was secondary to his service-connected bilateral knee disorders but noted that, during the examination, the Veteran's gait was "very close to being perfectly normal." There were no leg length discrepancies which would put an undue strain on the lower back and there was nothing on physical examination of the knees that would predispose the lower back to problems of a mechanical nature. The examiner concluded that the Veteran's back disability was "totally unrelated" to his left knee disability. Due to deficiencies in the first two examinations, the Veteran was afforded a third VA spine examination in June 2014. Although the June 2014 examiner noted that the Veteran had a history of diagnosed scoliosis, with the date of diagnosis being 2009, the examiner opined that "the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness," with the rationale that "there is no objective evidence that he has a back condition." Due to deficiencies in the third examination, the Veteran was afforded a fourth VA spine examination in January 2017. This examiner diagnosed lumbosacral strain (noting an onset date of 2013) as well as degenerative arthritis of the spine (noting an onset date of 2017). This examiner opined that the Veteran's back disability was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran's service-connected bilateral knee disabilities. As rationale for this opinion, the examiner wrote DJD (degenerative joint disease) of the lumbar spine is a chronic condition that tends to progressively worsen over time with the natural aging process and/or due to repetitive injury. The lumbar spine is in a distinctly separate anatomical location from the knee joint, and this examiner was unable to locate peer-reviewed studies that support the concept that a knee condition would cause the DJD in the lumbar spine. The examiner concluded that the Veteran's lumbar spine DJD was more likely than not caused by age, obesity, and occupational history of X-ray technician work, hospital work, and working in the home, all of which predispose to developing lumbar spine DJD. In a May 2017 addendum, the January 2017 VA examiner opined that it was less likely than not (less than 50 percent probability) that the Veteran's back disability was aggravated (permanently worsened beyond its natural progression) by the right and/or left knee disability. As rationale for this opinion the examiner wrote that DJD of the lumbar spine is a chronic condition that tends to progressively worsen over time with the natural aging process and/or due to repetitive injury. The lumbar spine is in a distinctly separate anatomical location from the knee joint, and this examiner was unable to locate peer-reviewed studies that support the concept that a knee condition would aggravate the DJD in the lumbar spine. This Veteran's lumbar spine DJD is more likely than not caused by age, obesity, and occupational history of X-ray technician work, hospital work, and working in the home all of which predispose to developing lumbar spine DJD. The May 2017 addendum opinion also found that the Veteran's back disability was less likely than not (less than 50 percent probability) directly related to the Veteran's military service. As rationale for this opinion, the examiner wrote that there was no evidence of injury or problems with his back while in the service. Furthermore, there is a gap of 25 years from the time of discharge and onset of DJD in the lumbar spine in 2017 and DJD of the lumbar spine is a chronic condition that tends to progressively worsen over time with the natural aging process and/or due to repetitive injury. Given the above, the Board finds that service connection for a low back disability is warranted. Significantly, the October 2010 VA opinion provides a positive nexus linking the Veteran's low back disorder to his service-connected bilateral knee disorders, due to the Veteran's altered gait. Therefore, these examinations are inadequate. While the June 2011 and January 2017 VA examiners concluded that the Veteran's current low back disorders were not related to his service-connected disorders, they do not consider the argument or evidence regarding the Veteran's altered gait. While recent VA treatment records dated as early as March 2014 now show the Veteran to have a normal gait, there is medical evidence that he did have an altered gait beginning in November 2009. Furthermore, while the January 2017 VA examiner noted that the Veteran's low back disability is related to the Veteran's age, obesity, and occupational history of X-ray technician work, hospital work, and working in the home, such does not refute the Veteran's allegation that the low back disorder is aggravated by his service-connected bilateral knee disorders. As a consequence, this examination is also inadequate. On balance, the October 2010 VA opinion regarding the lumbar spine provides a positive and well-reasoned opinion. As such, the Board finds that remand for an additional VA examination and opinion would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not warranted. Indeed, obtaining such additional evidentiary development in this instance would only result only in additional delay with no benefit to the Veteran. Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989 (2004). With resolution of all reasonable doubt in the Veteran's favor, the Board determines that the evidence supports service connection for a low back disability. 38 U.S.C. § 5107(b). III. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the veteran meets the schedular requirements. If there is only one service connected disability, this disability should be rated at 60 percent or more, if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is service-connected for status post total left knee arthroplasty to include scar (previously rated as left knee posterior cruciate ligament injury, status post reconstruction, with degenerative arthritis), evaluated as 60 percent disabling; and right knee strain with DJD associated with the left knee, evaluated as 10 percent disabling. As above, service connection for a back disability has been granted as well but no disability rating has been assigned for this disability yet. A combined disability evaluation of 70 percent is in effect from November 1, 2011. Review of the claims file reveals that the Veteran was unemployed at some points during this appeal due to left knee surgeries in October 2008 and September 2010, however, the Veteran was in receipt of temporary 100 disability ratings pursuant to 38 C.F.R. § 4.30 following each of these surgeries. However, the record shows that the Veteran is currently employed. Specifically, a May 2017 VA knee examination report shows that the Veteran had been employed for the past three years as an in-home service provider, helping individuals with mental and physical disabilities who reside in their own homes but require assistance. It was noted that he had missed five days of work over the past 12 months due to knee pain. VA's Schedule for Rating Disabilities is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 C.F.R. § 4.1. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Id. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Id. The Veteran's multiple disability ratings compensate him for the interference his disabilities has on his occupational functioning. While the Veteran may have difficulty working due to his service-connected disabilities, he is currently gainfully employed. Thus, he does not meet the criteria for a TDIU. ORDER Service connection for a low back disability is granted. A TDIU is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs