Citation Nr: 1801073	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-30 017	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for a lower back disability, claimed as secondary to a service-connected right knee disability.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Marsh II, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1985 to August 1985, with additional Army National Guard service from 1986 to 1988. 

This matter is before the Board of Veterans' Appeals on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned in a January 2017 videoconference hearing. A transcript of that hearing is of record.

Additional evidence consisting of VA vocational rehabilitation records were added to the file after the issuance of the May 2015 Supplemental Statement of the Case.  Review of the evidence shows that the evidence is not pertinent to the issue adjudicated in the decision. 38 C.F.R. § 19.37 , 38 C.F.R. §  20.1304 (c) (2017). Therefore, the Board finds that the Veteran is not prejudiced from the Board proceeding with a decision below.


FINDING OF FACT

The weight of the evidence of record does not establish that the Veteran's lower back disorder was proximately due to, or aggravated by, his service-connected right knee disability.


CONCLUSION OF LAW

The criteria for an award of service connection for a lower back disability, as secondary to the service-connected right knee disability, have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.310(a) (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

II. Service Connection

A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet.App. 439 (1995).

By way of an April 1988 decision, the Board granted service connection for a post- operative meniscectomy with patellar chondromalacia of the right knee. The Veteran's primary contention is that he now suffers from a lower back disability that is secondary to his service-connected right knee disability. Additionally, the Veteran contends that he suffered a spinal fracture in service, during an incident in which he also injured the service-connected right knee. 

The Veteran's service treatment records are replete with multiple right knee injuries and treatment related thereto. However, the service treatment records are silent for any complaints, injuries, or treatment for the lower back. A post-service treatment record from September 2008 indicates that the Veteran underwent an x-ray which did not reveal a spinal fracture.

The Veteran was afforded a VA examination in August 2010 that resulted in a negative nexus opinion. The examiner reviewed the claims file in conjunction with the examination. Following the examination, the examiner diagnosed the Veteran with thoracolumbar myofascial pain with lumbar spine degenerative changes. The examiner opined that the degenerative changes in the Veteran's spine were within age expected findings, particularly given the type of work that he did previously as an iron worker and welder. Further, in a May 2015 addendum, the examiner opined that the claimed condition was not at least as likely as not aggravated beyond its natural progression by the service connected right knee. The examiner noted that it was not medically plausible.

The Veteran also submitted a March 2010 correspondence from Dr. D.H., who stated that the Veteran had been a patient in his practice since July 2007. Dr. D.H. stated that the Veteran had been evaluated for back pain. He stated that he performed a consultation, health history evaluation, orthopedic and neurologic testing, and chiropractic biomechanical analysis, as well as multiple treatments to address ailments, most particularly lower lumbar spine pain. He also noted that the Veteran's health history included a knee injury and spinal fracture while performing military service. Ultimately, he opined that the Veteran's current lumbar spine pain and discomfort is directly due to and compensation for his knee pain and spinal fracture incurred during service. See May 2010 Correspondence.

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. The first inquiry is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. The second inquiry involves consideration of whether the medical expert provided a fully-articulated opinion. The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008).

The Board finds that the August 2010 VA medical opinion is afforded high probative value. The examiner was fully informed of the pertinent facts. The VA examiner reviewed the claims file and satisfactorily addressed the service-connected disability. The examiner rendered a fully-articulated opinion that was not equivocal in nature, and which provided the degree of certainty required for a medical nexus opinion. Furthermore, the opinion was supported by a reasoned analysis, as the examiner addressed both the causation and aggravation of the Veteran's claimed lower back disability, as well as cited findings in the service treatment records.

In regard to the March 2010 correspondence from Dr. D.H., the Board finds that this medical opinion is inadequate, as it is based upon an inaccurate factual premise. Dr. D.H.'s opinion relies on the errant contention that the Veteran suffered a spinal fracture during service. However, the Veteran's service treatment records, and the record in its entirety, is absent of any evidence of a spinal fracture. Thus, the March 2010 opinion is afforded no probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value).

The Board notes that the Veteran submitted several lay statements in support of his claim. The Veteran, while competent to report his symptoms both current and past, as a lay person is not competent to associate his lower back disability with his service connected right knee disability. That is, the Veteran is not competent to opine on matters such as the etiology of his current disability. Such opinion requires specific medical training and is beyond the competency of the Veteran or any other lay person. In the absence of evidence indicating that the Veteran has the medical training to render medical opinions, the Board must find that his contentions with regard to the causal relationship between his lower back disability and service are of minimal probative value and outweighed by the probative objective evidence of record which is absent a finding of such. See also 38 C.F.R. § 3.159(a)(1) (2017) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). Accordingly, the statements offered by the Veteran in support of his own claim are not competent evidence of a medical nexus between the current disability and the service connected disability.

Although the Veteran has established a current disability, the preponderance of the evidence weighs against a finding that the Veteran's lower back disability is causally related to his service-connected right knee disability. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied.

ORDER

Entitlement to service connection for a lower back disability, to include as secondary to the service-connected right knee disability is denied.




____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs