Citation Nr: 1801155	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  13-29 056	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUES

1.  Entitlement to service connection for a low back disorder, to include as secondary to the service-connected bilateral knee disorder and shin splints.

2.  Entitlement to service connection for a left hip disorder, to include as secondary to the service-connected bilateral knee disorder and shin splints.

3.  Entitlement to a disability rating in excess of 10 percent for chondromalacia patella of the right knee with mild degenerative changes.

4.  Entitlement to a disability rating in excess of 10 percent for chondromalacia patella of the left knee with mild degenerative changes.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

J. Smith, Counsel


INTRODUCTION

The Veteran served on active duty from August 1982 to February 1992 in the United States Army.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO's) in Lakewood, Colorado and Cheyenne, Wyoming, respectively.

In June 2017, the Veteran testified before the undersigned during a videoconference hearing.  A transcript of the hearing is included in the electronic claims file.  

With regard to the left hip claim, the Board has considered the decision of the United States Court of Appeals for the Federal Circuit  (Federal Circuit) in Boggs v. Peake, 520 F. 3d 1330 (Fed. Cir. 2008), which provides that a claim premised on a diagnosis not considered in prior decisions is treated as a new claim without the need for new and material evidence.  The RO denied a claim for service connection for left hip osteoarthritis in a March 2008 final rating decision.  Since then, another hip disorder, trochanteric bursitis, has been diagnosed.  As this diagnosis was not of record when the claim was previously denied, the Board finds that the present claim may be considered without regard to whether new and material evidence has been received.  

The issues of entitlement to ratings in excess of 10 percent for the right and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran's low back disorder was aggravated by his service-connected bilateral knee and shin disabilities.

2.  The Veteran's left hip disorder was aggravated by his service-connected bilateral knee and shin disabilities.


CONCLUSIONS OF LAW

1.  The criteria for the establishment of service connection for a low back disorder have been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § §§ 3.102, 3.303, 3.310 (2017).

2.  The criteria for the establishment of service connection for a left hip disorder have been met.  38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2012); 38 C.F.R. § §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999).

In addition, service connection is warranted for a disability which is 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 any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(b).  

The standard of proof to be applied in decisions on claims for Veterans' benefits is set forth at 38 U.S.C. § 5107.  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).  

The Veteran has current osteoarthritis and trochanteric bursitis of the left hip, documented in a July 2017 Disability Benefits Questionnaire (DBQ).  The Veteran also has current lumbar strain and radiculopathy, documented in a June 2014 DBQ.

On the matter of direct service connection, the record contains only the negative opinion of a March 2016 VA examiner pertaining to the low back.  As for secondary service connection based on causation, the record contains only the negative opinions of a January 2008 VA examiner pertaining to the left hip and the June 2014 DBQ provider pertaining to the low back.  The Board will thus turn to a discussion of secondary service connection based on aggravation.

In an August 2017 letter, the Veteran's private physician, Dr. L., noted the negative opinions previously obtained.  He reviewed the Veteran's service treatment records, private treatment records, and VA treatment records.  He opined that the current low back and left hip disorders have been aggravated beyond their natural progression by the service-connected bilateral tibial stress fractures and bilateral chondromalacia patella.  He summarized the Veteran's medical history, to include the presence of shin splints since 1982, and secondary knee and ankle disabilities in 2003.  Not long thereafter, in 2005, the Veteran began to experience hip and back problems, which had essentially been dormant since his reports of hip and back pain in service.  Since that time, he has been prescribed leg lifts, orthotics, and other treatment.  Dr. L. acknowledged that the Veteran's post-service occupation as a mail handler could account for some of the discomfort in his back.  However, it was his opinion, based on a comprehensive review of the records, that the Veteran's need to continuously compensate for shin and knee pain greatly accelerated and aggravated his hip and back disorders beyond their natural progression. 

In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to secondary service connection for his low back and left hip disorders, as aggravated by the service-connected bilateral knee disabilities and bilateral shin splints.  

The August 2017 positive nexus opinion constitutes the entirety of the evidence on the matter of secondary aggravation; there is no evidence to the contrary of this opinion.  The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted.  See Mariano v. Principi, 17 Vet. App. 305, 312 (2003).  

The August 2017 report is adequate for the purposes of adjudication.  The physician based his conclusions on a review of the record and provided a rationale for his opinions.  See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).  While he did not expressly quantify the baseline level of disability under 38 C.F.R. §  3.310, he did pinpoint a worsening in symptoms to 2005 when the Veteran started to experience continuous problems and require treatment.  The Board thus finds that there is a sufficient temporal reference point upon which the rater can determine the baseline and whether any offset in award is required.

In sum, the evidence is at least in equipoise in showing that the Veteran has a low back and left hip disorder that have been aggravated by service-connected disabilities.  In resolving all reasonable doubt in the Veteran's favor, secondary service connection is warranted.  


ORDER

Service connection for a low back disorder, as aggravated by the service-connected bilateral knee and shin disabilities, is granted. 

Service connection for a left hip disorder, as aggravated by the service-connected bilateral knee and shin disabilities, is granted. 


REMAND

In a June 2014 VA Form 21-4142, the Veteran reported receiving private medical treatment from a facility called Select Therapy.  At his June 2017 hearing, he again reported receiving physical therapy treatment at Select Therapy, as well as treatment through Kaiser Permanente.  The record does not contain any records from Select Therapy, and only isolated reports and records from the 1990s from Kaiser Permanente.  These records must be requested prior to appellate adjudication.

A VA examination has not been provided to assess the severity of the Veteran's bilateral knee disabilities since 2012, nearly 6 years ago.  A 2017 DBQ shows ranges of motion that suggest a worsening of the condition since 2012.  An updated examination should be provided. 

Accordingly, these claims are REMANDED for the following action:

1. The RO must contact the Veteran and request that he provide any authorization forms necessary to obtain private treatment records from Select Therapy and Kaiser Permanente.

2. Afford the Veteran a VA examination to ascertain the current severity of his service-connected bilateral knee disabilities, in accordance with the applicable worksheet for rating the disorders. 

The examiner must test the ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so.

3.  Thereafter, readjudicate the claims, considering all evidence.  If the benefits sought remain denied, the Veteran and his representative should be provided a SSOC.  An appropriate period of time should be allowed for a response.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).



______________________________________________
M. TENNER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs