Citation Nr: 1754944 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-05 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for post-operative residuals of lumbar spine disorder as secondary to service-connected post-operative bilateral knee disability. 2. Entitlement to service connection for a seizure disorder, to include as due to a service-connected disability. 3. Entitlement to an increased rating in excess of 10 percent for a left knee disability. 4. Entitlement to an increased rating in excess of 10 percent for a right knee disability. REPRESENTATION Veteran represented by: Lori Chism, Esq. ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1992 to July 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. These matters were previously before the Board in May 2016 at which time they were remanded for additional development, including obtaining VA examinations and opinions. Thereafter, in an October 2016 rating decision issued by the RO, service connection for adjustment disorder with mixed anxiety and depressed mood, service connection for surgical scars of the right and left knees, and entitlement to a total disability evaluation due to individual unemployability based on service connected disabilities was granted. These actions constitute a full grant of the benefits sought, and the issues are no longer on appeal. Review of the record shows that further development is required regarding the issues of increased ratings for the Veteran's left and right knee disabilities and the issue of entitlement to service connection for a seizure disorder. Stegall v. West, 11 Vet. App. 268 (1998). The claims for increased ratings for left knee disability and right knee disability, and entitlement to service connection for a seizure disorder are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the Veteran if further action is required. FINDING OF FACT There is no competent medical evidence of record that shows the Veteran has a lumbar spine disorder that had its onset during active service, or is otherwise related to active service, or is related to his service-connected bilateral knee disability. CONCLUSION OF LAW The criteria for service connection for post-operative residuals of lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1112, (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The requirements of the statues and regulation have been met in this case. Regarding the Veteran's claim for entitlement to service connection for a back disorder, the notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). Compliant VCAA notice was provided in April 2011. With respect to the timing of VCAA notice, the United States Court of Appeals for Veterans Claims (Court) and Federal Circuit Court have held that VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (Mayfield II); Pelegrini II, 18 Vet. App. at 120. In the present case, the RO issued the required VCAA notice prior to the September 2012 rating decision on appeal. Thus, there is no timing error. VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate his claim and affording him a VA examination. There is no evidence that additional examinations are in order or that any relevant records have yet to be requested. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Concerning the duty to assist, the record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records (STRs), records from Social Security Administration (SSA), post-service treatment records, and VA examination reports. The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of the responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. The Board will therefore proceed to the merits of the Veteran's appeal. II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 1999). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection may be granted on as 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). Such secondary service connection is also warranted for an increase in the severity of a nonservice-connected disability, a permanent worsening beyond the natural progress of the nonservice-connected disease, that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Post-Operative Residuals of Lumbar Spine Disorder The Veteran contends that he has a lumbar spine disorder that is related to his service-connected bilateral knee disabilities. The Board has considered both direct and secondary theories of entitlement. The medical evidence of record establishes that the Veteran underwent an L-4 lumbar laminectomy 2004. A June 2011 VA spine examination diagnosed grade 1 spondylolisthesis L4-5, 2-disc space narrowing L3-L4 and L4-L5, and post L4 laminectomy. Thus, the first element of service connection is met. The Veteran's service treatment records (STRs) are negative for treatment for complaints for back pain, back injury or a diagnosis of a back disability. The report of the Veteran's separation physical examination is negative for any back disability. The evidence of record does not establish an in-service occurrence of a back injury. Therefore, entitlement to service connection for a back disability on a direct basis is not warranted. Turning next to the theory of service connection on a secondary basis, the Veteran is service-connected for a bilateral knee disability. The Veteran asserts that this is the cause of his back disability; that his back condition - at a minimum - is aggravated by his service-connected bilateral knee disabilities. The Veteran underwent a VA spine examination in June 2011, as noted above. The Veteran reported that he began experiencing back pain sometime after he began having knee pain. The Veteran also reported that he was in a motor vehicle accident in 2003 in which he slid under a truck. He stated that when he sat up, he felt his back pop. He described his back pain as severe at that time. The Veteran reported that he underwent an L-4 lumbar laminectomy in 2004. The examiner noted that the medical history reported by the Veteran was confirmed by the medical evidence associated with his claims file. The examiner determined that the Veteran's lumbar spine disability was not caused by the Veteran's bilateral knee disability; however, the examiner did not provide an opinion on whether the Veteran's bilateral knee disability aggravates or chronically worsens the lumbar spine disability. In its May 2016 remand, the Board remanded this issue in order to obtain clarification of the VA examiner's opinion. In December 2016, an addendum opinion was furnished by the June 2011 VA examiner. The examiner determined that it is less likely than not that the Veteran's service-connected bilateral knee disability aggravates his lumbar spine disability. The examiner included a thorough rationale for her opinion, noting that the Veteran contended at his June 2011 VA examination that his back problems, with resultant foot drop, occurred gradually as a result of his bilateral knee disability. The examiner stated that in order for that to have been the case, the Veteran should have experienced similar symptoms bilaterally, since both knees are affected. However, the examiner noted that the medical evidence of record reveals the Veteran was never seen for back pain until his accident where he slid under a truck and felt his back pop. The Veteran had a lumbar laminectomy within one year of the accident. The foot drop occurred after the back injury, but prior to the back surgery. The examiner stated that this evidence "clearly notes the relationship between the 2003 accident where he slid under a truck, developed back pain with foot drop and had resulting back fusion." The examiner noted that, based on VA records, the Veteran had not had recent knee surgeries or knee procedures, which could cause stress on the back, and stated, "This evidence does not suggest aggravation." The VA examiner additionally noted that the Veteran's gait was observed to be normal on physical examination in November 2016, prior to repeat back surgery on December 6, 2016, "which does not suggest a possible link from his SC knee condition to his back condition." Therefore, the VA examiner concluded "that the Veteran's post laminectomy L-4, spondylolisthesis L4 on 5 and disc space narrowing L3-4 and L4-5 2011 and L3-4 extension of fusion 2016, is not due to his service connected bilateral knee condition, but is a result of his nonservice-connected back injury in 2003. Furthermore, there is no evidence that the knee condition aggravated the back condition." After careful consideration of the evidence of record, the Board finds that both direct and secondary service connection for the Veteran's back disability must be denied because the competent evidence of record does not show that a back disability was either caused or aggravated by service; and the evidence does not show a connection between the Veteran's current back disability and his time in service. The Board has considered the Veteran's lay statements regarding the etiology of his back disability. Although the Veteran is competent to testify to the facts surrounding his claim, such as symptomatology, as a lay person, he is not competent to offer opinions that require medical knowledge. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). While the Veteran may sincerely believe that he has a back disability that is related to his time in service and/or his service-connected bilateral knee disability, he does not have medical training and his statements as to medical diagnosis are simply outweighed by the evidence of record. The preponderance of the evidence is therefore against a finding of service connection for a back disability and the claim must be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). ORDER Service connection for post-operative residuals of lumbar spine disorder is denied. REMAND While the Board regrets the additional delay, it finds that a remand is necessary to adequately evaluate the Veteran's bilateral knee disabilities and to adjudicate the issue of entitlement to service connection for a seizure disorder. In May 2016, the Board remanded this matter to provide the Veteran with a VA examination of his knees, and to obtain an accompanying opinion which included comment on the effect of flare-ups on the Veteran's bilateral knee disability, specifically on whether pain could significantly limit his functional ability during flare-ups. The Veteran underwent a VA examination in September 2016, and a review of the examination report shows the examiner provided the requested opinions. However, the Board finds that this examination report is inadequate because it did not include competent findings as to the Veteran's functional impairment due to pain on active and passive motion, and during weight-bearing and nonweight-bearing in accordance with the range of motion testing protocol required by the Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158, 168-169 (2016). Additionally, recent Court precedent, citing to a VA clinician's guide, appears to require in cases such as this, that when evaluating impairment from a given disability, the VA examiner is to estimate additional range of motion loss during flare-ups after eliciting appropriate information from the Veteran, and considering all the information of record, or explain why he or she could not do so. See Sharp v. Shulkin __Vet. App.__ 2017 WL 3879425 (Sept. 6, 2017). As this Veteran asserted he experiences flare-ups and this symptom was addressed in the September 2016 VA examination; flare-ups should again be addressed in the new VA examination which is needed for compliance with the VA's duty to assist. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). With regard to the Veteran's claim for entitlement to service connection for a seizure disorder, to include as secondary to service-connected disabilities, the Board notes that there is no VA opinion associated with the electronic file that addresses the theory of entitlement to service-connection for a seizure disorder on a secondary basis. On remand, such an opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA medical treatment records dated from December 2016 forward and associate them with the electronic file. All records/responses received should be associated with the electronic file. All efforts to obtain the records should be fully documented, and the facility must provide a negative response if records are not available. 2. Provide the Veteran an opportunity to submit any outstanding private treatment records. Provide the Veteran with the appropriate authorization for release form(s). For any outstanding private treatment records identified and authorized by the Veteran, make at least two (2) attempts to obtain such records. All attempts made must be documented in the claims file, to include the unavailability of any identified records. For any identified records that are not obtained, notify the Veteran of such and provide him with an opportunity to submit those records directly. 3. After the development requested above has been completed, schedule the Veteran for a VA examination for the purpose of ascertaining the current nature and severity of his service-connected left and right knee disabilities, to include any functional effects. The Veteran's electronic file should be made available to and reviewed by the examiner, and (s)he must indicate whether such review was accomplished. The examiner should determine the range of motion of the Veteran's right and left knees, in degrees. Range of motion testing must include both passive and active motion, as well as in weight-bearing and nonweight-bearing conditions. It should be indicated whether and at what point during the Veteran's range of motion the Veteran experiences any limitation of motion that is specifically attributable to pain. Further, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use, weakened movement, excess fatigability, incoordination, and/or flare-ups should be indicated. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide and opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 4. Obtain a medical opinion from an appropriate VA examiner as to whether the Veteran's seizure disorder is secondary to a service-connected disability, and/or due to any medications prescribed for any service-connected disability. The complete record, including a copy of this remand and the electronic file, must be made available to and reviewed by the examiner in conjunction with the examination. The VA examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's seizure disorder, is proximately due to or chronically aggravated (permanently worsened beyond the natural progression) by service-connected disability, to include adjustment disorder, right knee disability, left knee disability, hearing loss, tinnitus and/or medications prescribed to treat adjustment disorder, right knee disability, left knee disability, hearing loss, and tinnitus. If it is determined that the requested opinion cannot be furnished without re-examining the Veteran, such examination should be scheduled and proper notice should be provided to the Veteran. The term "at least as likely as not" does not mean within the realm of possibility, but rather that the evidence both for and against a conclusion is so evenly divided that it is as sound to find in favor of a certain conclusion as it is to find against it. All findings, conclusions, and the rationale for all opinions expressed should be provided in a report. Please note that an examiner's report that (s)he cannot provide and opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. 4. Then, readjudicate the appeal. If the benefits sought are not granted in full, furnish the Veteran and his representative a supplemental statement of the case and, after allowing the appropriate period of time for response, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs