Citation Nr: 1753931 Decision Date: 11/27/17 Archive Date: 12/07/17 DOCKET NO. 14-09 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for chronic lumbosacral spine strain with degenerative changes and left sided radiculopathy as secondary to the service-connected disability of right knee realignment with patellofemoral pain. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Veteran and her mother ATTORNEY FOR THE BOARD S. Schick, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1981 to August 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge in October 2016. A transcript of that proceeding has been associated with the claims file. FINDING OF FACT There is an approximate balance of negative and positive evidence as to whether the Veteran's current back disability is related to her service-connected right knee realignment with patellofemoral pain disability. CONCLUSION OF LAW Having resolved doubt in favor of the Veteran, the criteria for entitlement to service connection for a back disability have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Legal Criteria A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection may be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d) (2017). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. In order to establish service connection for a claimed disability on a secondary basis, there must be (1) medical evidence of a current disability; (2) a service-connected disability; and (3) medical 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). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans' Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Analysis The Veteran filed a September 2010 claim for service connection for a lower back issue secondary to knee issue. See September 2010 Statement in Support of Claim. She contends that she started having problems with her lower back while she was in service after hurting her knees and when a cast was put on her knee it started to hurt her back. Id. The Veteran contends that her back disorder is a result of a fall which was caused by her service-connected knee disability. See March 2011 Notice of Disagreement. In this case, the evidence shows that the Veteran has a current diagnosis of chronic lumbar spine strain with left leg radiculopathy. See January 2014 VA examination report. She is also service connected for bilateral knee realignment with patellofemoral pain disabilities. Thus, the first two elements are met with respect to secondary service connection, and the crux of the case rests with establishing a nexus. With regard to the third element of secondary service connection, medical evidence of a nexus between the service-connected disease or injury and the current disability, the Veteran was afforded an October 2010 VA back and knees examination and the VA examiner opined that the Veteran stated that her knee gave out, and she fell and hurt her back, and that he had no reason to doubt the Veteran's statements; however there was no documentation of her treatment for her back and without such information he would not be able to resolve the issue without resorting to mere speculation. In an October 2010 VA Addendum opinion, the October 2010 VA examiner addressed the Veteran's altered gait and opined that it would be left to pure speculation to state whether altered gait had a greater impact on the Veteran's low back condition that her body habitus and he was unable to connect the altered gait to bilateral knee service-connected condition to her current low back condition. Therefore, he opined that it was less likely as not that her bilateral knee condition that resulted in altered gait caused her current back condition. The Board finds the VA examiner competent and credible but finds the opinions nonprobative as the examiner indicated that he would be resorting to mere speculation because he lacked sufficient information to resolve the issue. The Veteran was afforded a January 2014 VA back examination and the examiner explained that the Veteran had no objective evidence that the fall she had was from the knees. She had statements from her husband but no statement at time the of injury and the cause sounded like fatigue on small stairs at the end of a long walk as she had no assistive devices and she still does not have assistive devices. The examiner opined that the pertinent question was whether the fall was from the instability in the knees and the examiner determined that there was not enough evidence at the time to support that the knees gave out from instability versus the from not watching her step on tight set of stairs in the attic, of a rehabbed theater. Therefore, the examiner opined that it was not at least as likely as not that service related to the knees as she has no instability on her knee exam without any ligament laxity to cause her fall therefore the fall she had is consistent with falling from walking on tight set of old rehabbed attic steps and this is a fall that is reasonable for anyone to have increased risk for falling. The Board finds the VA examiner competent and credible but affords reduced probative weight as the examiner first indicated that there was not enough evidence to support that the knees gave out from instability versus the from not watching her step but then opined that it was less likely than not that her knees caused her fall and stated that the fall was not at least as likely as not that service related to the knees and that her fall was consistent with falling from walking on tight set of old rehabbed attic. In light of these inconsistent determinations by the examiner based in part on an absence of evidence, the Board affords reduced probative weight. In resolving the question of whether the fall was from the Veteran' service-connected knee disabilities, the Board has considered the competent and credible lay statements of record. In a March 2011 statement, the Veteran's spouse reported that they attended a comedy event and while touring the theatre before the show began the Veteran's knee gave out while coming down the stairs. She fell from three to four stairs up, and fell to the floor. She was shaken up but was able to get up. The Veteran's spouse reported that it was not unusual for her knees to give out on her. He reported that by the time the show was over, the Veteran's back was starting to cause discomfort which became worse in the coming weeks. He indicated that she eventually had two surgeries on her back and has been left with chronic pain. See March 2011 Statement in Support of Claim. In a May 2015 statement, the Veteran's spouse indicated that the Veteran often fell and reasserted that her current back injury is a result of the fall she experienced while walking down steps at a comedy show after her knees gave out. See May 2015 Statement in Support of Claim. In a May 2015 statement, the Veteran's parents indicated that while visiting the Veteran in 1983 they witnessed the Veteran's right knee collapse and the Veteran fall. In addition they reported that while living in a mobile home in 1986, they constructed new steps and a porch with a hand rail because the Veteran experienced problems with her knees including difficulty entering and exiting her mobile home due to entry steps and unexpected falls from her knees collapsing. See May 2015 Statement in Support of Claim. In a May 2015 statement, the Veteran's coworker indicated that he witnessed the Veteran's knees lock and buckle backwards which caused her to fall at work in August 2014. See May 2015 Statement in Support of Claim. In May 2015 statements, the Veteran's children reported that the witnessed the Veteran fall because of her knees on several occasions including when the Veteran's knees gave out and she fell as a result while trying to board a flight and while at the beach she fell after her knee gave out. See May 2015 Statements in Support of Claim. In a May 2015 statement, the Veteran's friend indicated that she has known and witnessed the Veteran fall because of her knees for approximately 10 years. See May 2015 Statements in Support of Claim. The Board notes that the Veteran is competent to report on symptoms that are capable of lay observation such as joint and muscle pain and falling. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran, her family, and her friends are are competent to report witnessing the Veteran's knees lock, give out, and collapse and subsequently witnessing her fall. Regardless of the VA opinions, the Board finds that their testimony is competent and credible as to the role the knee symptoms played in the fall. They are not competent, however, to opine as to the underlying etiology of the back disability, to include whether it is the result of her fall. In this regard, the Board notes a December 2014 Ambulatory Surgery Preoperative Report indicated that the Veteran fell down the stairs in 2003 which resulted in her lumbar spine surgery and at that time she had severe left radicular pain all the way to her foot and currently had persistent numbness and leg spasms. Further, a March 2014 private treatment note indicated that the Veteran was referred for a fall in her garage with low back injury and radiation into her leg. In light of this evidence, the Board finds that the evidence of record is in relative equipoise as to whether the fall that caused the Veteran's current back disability is due to her service-connected knee disability. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. 38 C.F.R. § 3.102; 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Because a state of relative equipoise has been reached in this case, the benefit of reasonable doubt applies, and service connection for a back disability is granted. Whereas the Board is granting service connection for a back disability on a secondary basis, all other theories of entitlement to service connection need not be discussed. ORDER Service connection for chronic lumbosacral spine strain with degenerative changes and left sided radiculopathy is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs