Citation Nr: 1803142 Decision Date: 01/17/18 Archive Date: 01/29/18 DOCKET NO. 09-26 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder as secondary to service-connected bilateral knee disabilities. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Cooklin, Associate Counsel INTRODUCTION The Veteran served from November 1967 to April 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 and February 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO), which in pertinent part denied service connection for a lumbar spine disorder. The lumbar spine claim was remanded by the Board in February 2013. It was returned to the Board in March 2014, at which time the Board denied service connection for the Veteran's lumbar spine disorder on a direct basis only; the Board remanded the claim of service connection for the lumbar spine disorder as secondary to his service-connected bilateral knee disabilities for further development. The secondary service connection claim for a lumbar spine disorder was further remanded by the Board in February and September 2016. The Board again remanded the claim in March 2017 for failure to consider secondary aggravation for service connection. The Board finds there has been substantial compliance with its remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) [holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)] violation when the examiner made the ultimate determination required by the Board's remand.) FINDING OF FACT The probative, competent evidence does not establish that a current disability of the lumbar spine is causally or etiologically related to active duty service, or causally related to or aggravated by the Veteran's service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.30, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background In addition to being 100 percent service connected for depression since 2010, the Veteran is service connected for arthritis of the left knee and degenerative disc disease (DJD) of the right knee at 30 percent each. His right knee was injured in April 1970 while in Vietnam, and he underwent a medial meniscectomy. See service treatment records (STR). He asserts his lumbar spine problems are caused by his bilateral knee disabilities, and therefore entitlement to secondary service connection. Specifically, he argues his knee injuries require use of a cane to walk, which in turn causes an altered gait that has caused or aggravated degenerative changes to his spine. In July 1993, the Veteran was diagnosed with chronic back pain by VA. In February 2002, x-rays revealed mild degenerative changes in the Veteran's back. In June 2002, the Veteran underwent a magnetic resonance imaging (MRI) scan. The scan revealed mild to moderate central stenosis and moderate central canal stenosis at L4-L5 and L5-S1 levels. Records from April 2004 indicate the Veteran reporting back pain for about a year, but having tingling sensations for 5-6 years prior. In June of 2006, the Veteran was seen again by VA for back pain, reporting pain over the past two years in his spine and left hip. The following month, the present claim was filed. In November 2006, an MRI revealed a disk bulge at L4-L5and Sl nerve impingement. An EMG in May 2007 disclosed chronic L5-S1 radiculopathy with no evidence of peripheral neuropathy. In December 2008, a follow-up MRI showed stable degenerative joint disease (DJD) at L4-5 and L5-S1, with no changes from 2006, though some foraminal narrowing at some levels. In December 2009, spondylitic changes were seen at C4-5, C5-6 and C6-7. In February 2007, a VA exam was performed. That record reveals the Veteran had previous employment in construction and as a roofer In March and December 2003 VA treatment records, the Veteran reported that his back hurt when his knees hurt. The VA assessment was low back pain secondary to DJD and history of spinal stenosis. The examiner did not address whether the Veteran's left lumbar spine disability was aggravated by (permanently worsened beyond normal progression) his arthritis, left knee and DJD right knee. The Veteran underwent a VA examination of his lumbar spine in November 2013. The examiner found his low back condition not service connected, indicating rheumatoid arthritis, polyarthritis and osteoarthritis from normal and progressive wear and tear were the more likely causes. The Board asked for addendum opinions regarding the aggravation portion of the secondary service connection claim in the March 2014, February and September 2016 remands. In an April 2014 addendum, the November 2013 examiner stated that it would be speculative to opine as to aggravation, and continued to indicate that he was diagnosed with osteoarthritis which was at least as likely as not consistent with the normal aging process and less likely as not a result of being chronically aggravated by his bilateral knee condition. In a November 2016 addendum opinion, a different examiner reviewed the file, and reached a similar conclusion based on the Veteran's age and osteoarthritis. In May of 2017, a new VA examiner reviewed the Veteran's records, giving rise to the present appeal. Legal Criteria Service connection is granted for disability resulting from personal injury suffered or disease contracted during active military service or for aggravation of such pre-existing matter during service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2016). Service connection may 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 there must be evidence of: (1) a present disability for which service connection is sought; (2) incurrence or aggravation of a disease or injury in service, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis when the evidence demonstrates that the claimed disability is proximately due to, or the result of, a veteran's service-connected disability, 38 C.F.R. § 3.3 1 0(a) (2016), or when the claimed disability is aggravated by a service-connected disability. 38 C.F.R. § 3.3 1 0(b); Allen v. Brown, 7 Vet. App. 439 (1995). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Then, the Board must determine whether the evidence is credible. The Board must make an express credibility finding regarding lay evidence. Dalton v. Nicholson, 21 Vet. App. 23 (2007). Finally, the Board must weigh the probative value of the proffered evidence in light of the entirety of the record. Analysis In his May 2015 Statement in Support of Claim, the Veteran states his back was hurt in Vietnam in April 1970 when he sustained his knee injuries; however, it was "secondary on the pain scale" to his knees, intimating it was not addressed due to the urgency of focusing on his knees. His claim on a direct service connection basis was denied without appeal in March 2014, and is final. Therefore, only service connection on a secondary basis is under consideration. There is evidence for and against the Veteran's claim on a secondary basis. Evidence in favor of the Veteran's includes a report from the Veteran's VA primary care physician, Dr. D.A.S. He notes the Veteran's statement that he feels his altered gait is causing his spine problems. The doctor indicated in a June 2014 treatment record that it would be "reasonable to assume that (the Veteran's) knee DJD and related unsteady gait and favoring one side can exacerbate his back issues." A VA physical therapist, Dr. R.G., indicated in a November 2003 VA treatment record that the Veteran's "low back pain (was) secondary to DJD." Additionally, the Veteran's spouse is an orthopedic RN, who provided a May 2016 statement. She also indicated that the Veteran abnormal gait and weight bearing due to his bilateral knee disabilities may have caused or aggravated the Veteran's lumbar spine issues. The Board recognized the Veteran's spouse has medical training, and has carefully weighed her statement. As such, her opinion should be afforded more weight than the typical layperson. See Jones v. West, 12 Vet. App. 460, 465 (1999); see also Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). The spouse stated that since the Veteran has DJD in the knees, ". . . it is my opinion that it is reasonably accurate to acknowledge that it is caused and/or aggravated by his diseased knees and femur bone to some degree and effect." Evidence against the claim is substantial. The Veterans service treatment records (STRs) are devoid of any treatment or complaints relating to his back. He was returned to "full duty" five months later in September 1970 after tearing the right medial meniscus. All of his STRs reflect a normal spine without complaint. January 1971 and March 1973 reports of medical examinations specifically indicate no recurrent back pain. The evidence of record indicates some 20 years lapsed before any complaints relating to his spine were made; it was not until July 1993 during a VA examination that the Veteran reported his back began hurting "about a year ago." An X-ray of the lumbosacral spine at that time was normal. As the Veteran aged, in 2001 mild osteoarthritis in the L5-S1 regions was noted. Between 2004 and 2013, his body mass index varied between 40 and 45 (BMI reflects obesity greater than 30). A MRI in December 2008 showed stable disc disease at L4-5 and L5-S1 areas without change. A MRI June in 2013 indicated spondylitic changes with canal stenosis at L4-5, with disc extrusion at L5/S1. Several VA exams have found against the Veteran's claim, largely indicating the Veteran's spine condition is more likely caused by ageing or his comorbid conditions of rheumatoid arthritis, polyarthritis as well as osteoarthritis. While the examinations were found inadequate for various reasons (failure to consider the Veteran's altered gait claim, or service connection on a secondary basis) they nonetheless contain relevant history, radiology and diagnostic information. In May 2017, a VA medical doctor conducted another examination. In reviewing the medical records, the examiner stated the Veteran's spine was normal until the 1990's. The examiner found the current symptoms consistent with normal aging. Importantly, the examiner found no nexus between the development of or treatment for knee conditions and the development of degenerative changes (DDD, spondylolisthesis) of the lumbar spine. The examiner stated the Veteran has been diagnosed with DDD of the lumbar spine, and MRI findings were consistent with changes related to aging ("spondylitic changes"). Regarding his antalgic gait, the examiner noted the MRI reflected asymmetric changes that "are not expected to be found due to an antalgic gait or due to abnormal weight bearing due to knee problems. These are findings due to changes in the anatomy of the back due to either age related changes or chronic injuries to the back." While the examiner stated that there was a slight antalgic gate due to use of a cane, he found that these changes were not severe enough to cause anatomical/physiological changes to the structure of the lumbar spine and the discs. Even if use of the cane caused periodic back pain such as due to muscle strain or spasm, the examiner stated "it would not be expected to cause such dramatic structural changes found on the MRI" from April 2015. Therefore, the examiner concluded it less likely than not that the current lumbar spine condition was caused by or aggravated by the Veteran's knee condition, his antalgic gait or abnormal weight bearing. Overall, the Board finds the May 2017 VA examination and opinion to be highly persuasive to the issue at hand. The Board notes that the probative value of medical opinion evidence is based on the medical expert's examination of the Veteran's medical history, VBMS, CPRS, VA medical records, and STRs. Additionally, the doctor noted the Veteran worked after service until 1984 in distributing and delivering groceries, an occupation typically involving heavy lifting. The credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Nieves-Rodriguez, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In weighing the credibility and weight of the evidence of record, the Board finds the May 2017 opinion to be especially persuasive. The Board has considered the statements of the Veteran. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Although a layperson is competent in certain situations to provide a diagnosis of a simple condition, a layperson is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the Veteran does not have the medical expertise to diagnose the causality of his lower spine condition under the facts presented. The Board notes and has considered the assertions of the VA primary care provider, the physical therapist, and the Veteran's wife. The Board finds more probative, however, the opinion of the May 2017 VA examiner, particularly in light of the fact that the examiner conducted a thorough review of the evidence of record and reported that the weight of the medical literature is against the conclusion that there is a correlation between the knee disabilities and the back disability, in contrast to the speculative opinion of the physician's assistant and primary care provider. Additionally, there is no evidence such statements were made after a review of the complete record or for purpose of diagnosis. Likewise, the Veteran's spouse, while undoubtedly familiar with the Veteran, does not possess the higher degree of education and skill that an M.D. possesses. See Black, supra. Additionally, her opinion does not apply the correct legal standard, it does not indicate a review of the entire record, and it does not indicate a review of the medical literature for this issue. Upon review, and considering all of the evidence, the Board finds that the most probative evidence does not demonstrate that the Veteran's back disability is caused or aggravated by his service-connected knee disabilities. Hence, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection. Thus, there is no reasonable doubt to resolve in his favor, and the appeal must be denied. See 38 U.S.C.A. § 5107(b) (2012); 38 C.F.R § 3.102(2017). Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs