Citation Nr: 1801870 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-13 704 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to service connection for back disability, to include degenerative joint disease of the lumbar spine and lumbar spondylosis ("hereinafter" back disability), claimed as secondary to service-connected bilateral knee disabilities. ORDER Service connection for a back disability, claimed as secondary to service-connected bilateral knee disabilities is granted. FINDING OF FACT Resolving all doubt in the Veteran's favor, the currently diagnosed back disability, is etiologically related to the service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria to establish service connection for a back disability, is approximated. 38 U.S.C. §§ 1131, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.310(a) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Introduction The Veteran had active military service from January 1971 to December 1974. In July 2016, the Board denied the Veteran's claim for service connection for a back disability. The Veteran appealed that portion of the Board's decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In a June 2017 Order, pursuant to a Joint Motion for Remand, the Court vacated and remanded the back disability claim to the Board for additional development and readjudication. The Veteran was provided a January 2015 hearing via video teleconference before the undersigned Veterans Law Judge. The Board notes that in July 2017, the Veteran submitted a waiver of any additional evidence submitted in support of the appeal. The Veteran further indicated that he wished for the Board to proceed with adjudication of his claim. Finally, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Furthermore, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Discussion The Veteran seeks service connection for a back disability, which he asserts is etiologically related to his service-connected bilateral knee disabilities. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran is currently service-connected for: (1) degenerative joint disease, right knee, evaluated at 30 percent; (2) degenerative joint disease, left knee, s/p left total knee replacement, evaluated at 30 percent; (3) tinnitus, evaluated at 10 percent; (4) residuals of a fifth finger fracture, evaluated at 0 percent; and (5) bilateral hearing loss, evaluated at 0 percent. As an initial matter, the Board finds that the Veteran has a current back disability. In January 2013, the Veteran underwent a VA back examination and was diagnosed with degenerative disc disease of the lumbar spine. Further, March 2017 VA treatment records show continued treatment for a back condition, including lumbar spondylosis. The Veteran underwent a VA examination in January 2013 to determine the etiology of the current back condition. However, the Board finds the January 2013 VA examination less probative than the other opinions of record because its medical opinion did not address service connection on a secondary basis. Therefore, the two pertinent opinions of record regarding the etiology of the Veteran's current back disability are a November 2015 VA examiner's opinion and a June 2017 private medical opinion. In November 2015, the Veteran underwent a VA examination to determine the etiology of the Veteran's current back disability. The VA examiner diagnosed the Veteran with degenerative changes of the lumbar spine. The VA examiner opined the Veteran's back disability was less likely than not caused or aggravated by his service-connected bilateral knee disabilities. However, the rationale provided by the VA examiner was the same used to find that the Veteran's back disability was not directly related to service. Specifically, the VA examiner stated that a review of VA and private treatment records did not indicate that the Veteran's back disability was caused or aggravated by the service-connected bilateral knee disabilities. No further rationale was provided. In contrast, the Veteran provided a June 2017 private opinion from Dr. L.S. that opined the Veteran's back disability was more likely than not a direct result of the Veteran's service-connected bilateral knee disabilities. Dr. L.S. stated that the effect of the arthritic knee was that the leg became shorter, causing an abnormal gait and pelvic shift, that caused the low back problems including disk herniation. The Board finds the June 2017 private physician's opinion more probative than the November 2015 VA examiner's opinion. Specifically, the June 2017 private physician's opinion provided a detailed rationale and adequately took into consideration the Veteran's medical history. In contrast, the November 2015 VA medical opinion lacks a probative rationale for the Board to rely on. As such, the June 2017 private physician's opinion provides a better basis for the Board to form a fully informed decision. The Board finds the June 2017 private medical opinion, thorough and adequate because it provides a sound basis upon which to base a decision with regard to the issue adjudicated in this decision. The opinion considers the pertinent evidence of record, to include the Veteran's medical history, and provided rationales for the opinions stated. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the etiology of the current back disability in relation to the service-connected bilateral knees. However, under the law, 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. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The Board therefore finds that the evidence is at least in equipoise on the question of whether the current back disability is related to the Veteran's service-connected bilateral knee disabilities. Resolving all reasonable doubt in favor of the Veteran, the criteria for a grant of service connection have been met. 38 U.S.C. § 5107 (West 2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel Copy mailed to: Veterans of Foreign Wars of the United States Department of Veterans Affairs