Citation Nr: 18144955 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 14-39 855 DATE: October 25, 2018 ORDER TO VACATE On May 23, 2018, the Board issued a decision denying entitlement to service connection for a right knee disorder to include as secondary to a service-connected left knee disorder. The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In his motion for reconsideration, the Veteran’s representative claimed that a progress note from the VAMC in Palo Alto, CA was not discussed in the May 2018 decision, and that this evidence could have changed the outcome of the right knee issue. A review of the record shows that an orthopedic surgery consultation note dated November 2017 did indeed consider that it was “reasonable to consider right knee pain is secondary to chronic problems with [the Veteran’s] left knee. Given its relevance to the Veteran’s secondary service connection claim, the absence of a discussion of this evidence in the Board’s May 2018 decision amounts to a denial of due process. See 38 U.S.C. § 7104(a); 38 C.F.R §20.904. Accordingly, the May 23, 2018 Board decision is vacated, and replaced by this decision.   ORDER Entitlement to service connection for a back disorder, to include as secondary to a service-connected left knee disability is denied. Entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disability is denied. FINDINGS OF FACT 1. The competent evidence of record does not show that the Veteran’s current lower back disorder was noted during active service or is related to service or to a service-connected disability. 2. The competent evidence of record does not show that the Veteran’s current right knee disorder was noted during active service or is related to service or to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disorder, to include as secondary to a service-connected left knee disability have not been satisfied. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for entitlement to service connection for a right knee disorder, to include as secondary to a service-connected left knee disability. have not been satisfied. 38 U.S.C. §§ 1110, 5103(a), 5103A, 1131, 1112, 1113 (2014); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1967 to November 1967. Regarding the Veteran’s right knee claim, the Board is aware that per a letter dated February 2014, medical records from two institutions are unavailable. In cases where service medical records are unavailable, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board’s analysis of the Veteran’s claim was undertaken with this duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). As mentioned above, the Board’s decision dated May 23, 2018, in which entitlement to service connection for a right knee disability was denied, is vacated. Service Connection The Veteran asserts that his service-connected left knee disorder caused, or at least contributed to his back disorder and his right knee disorder. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2014). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; 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); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases are subject to presumptive service connection if manifested to a compensable degree within one year from separation from service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113 (2017); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2017). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology for diseases, not including scoliosis, that qualify as a chronic disease listed in 38 C.F.R. § 3.309(a) (2016). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (2017). Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of if the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. Based on the evidence of record, service connection is not warranted for a back disorder or a right knee disorder because the evidence does not show that either disability is related to or onset during the Veteran’s service or within a year of separation, nor is it related to any of his service connected disabilities. First, a claim for secondary service connection does not preclude a claim based on direct service connection. In this vein, the Board concedes that the Veteran has current diagnoses of herniated nucleus pulposus and spondylolisthesis. The Board also concedes that despite the lack of physical symptoms such as effusion or joint space narrowing, the Veteran has a right knee disability as well. See Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018). However, the preponderance of the evidence is against finding that the Veteran’s disabilities are proximately due to or the result of, or aggravated beyond their natural progression by his service-connected left knee disability. 38 U.S.C. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc); 38 C.F.R. § 3.310(a). Next, the Veteran’s service treatment records, including his separation examination dated November 1967, do not reflect treatment in service for a back disorder or right knee disorder. The first indication of a treatment for a back disorder was February 1999, when the Veteran’s back pain first manifested. The first indication of a right knee disorder was noted in the late 1980’s, when the Veteran underwent a right knee arthroscopy. The Veteran does not contend, nor does the record reflect, that the back and right knee symptoms have presented since service. Therefore, with regard to both disabilities on appeal, continuity is not established based on either the competent clinical evidence or the Veteran’s statements. Next, service connection may also be granted when the evidence establishes a medical nexus between the Veteran’s current disability and his military service. However, the medical evidence does not warrant secondary service connection for the Veteran’s back or right knee disorders. The Veteran’s July 1999 private examiner opined that the Veteran’s back disorder is instead most likely due to his post-service occupational activity of lifting and carrying cases of liquor up and down stairs, as a bartender. The examiner’s rationale was that no other “causative factors” of the Veteran’s back disorder were uncovered by examination of the Veteran, and the history of the Veteran’s injury is consistent with the clinical findings in July 1999. Moreover, the Veteran’s September 2013 VA examiner reviewed the Veteran’s medical and claims records and opined that his back problems are related to the injury he suffered while working as a bartender. While the examiner did not expressly address whether the Veteran’s back disorder could have been aggravated by his service or his service connected disabilities, including his left knee disability, the examiner was clear that the Veteran’s back disorder is predominantly and proximately a result of his post-service occupation. From this, the Board infers that the Veteran’s left knee disability was immaterial to the onset of his back symptoms. Likewise, the medical evidence, to include his September 2014 examination report, does not show that the Veteran’s service connected left knee disability caused or aggravated his right knee disorder. First, the right knee surgery for which the Veteran seeks service condition took place some twenty years after the surgery that led to the Veteran’s service connected left knee injury. Second, the Veteran had no history of altered weight bearing, and was able to work a fairly strenuous position as late as thirty years after the onset of his right knee disability. Third, the radiographic evidence of record indicates only mild degenerative changes in the right knee. The VA examiner reasoned that therefore, a gait alteration from the left knee severe enough to cause degeneration in the right knee is highly unlikely. The examiner’s conclusion is supported by the indication that if there were an etiological connection between the right knee and the service-connected left knee, then pain in the intervening joints, i.e. the left and right hip, would precede right knee pain. However, this was not the case. Finally, the examiner concluded that the right knee symptoms are mild and consistent with normal wear and tear, rather than being due to the Veteran’s service connected left knee disability. The Board has specifically considered a November 2017 orthopedic surgery note indicating a possible nexus between the Veteran’s service connected left knee and the right knee disability currently on appeal. The author of the note states that “it is reasonable to consider right knee pain is secondary to chronic problems with [the Veteran’s] left knee.” It is clear that this is evidence that supports the Veteran’s claim. However, in the Board’s view, it is insufficient to establish service connection. First, this statement falls short of an actual opinion that can be afforded probative value. Instead, it merely suggests that it is “reasonable to consider” such a connection. The mere statement like this perhaps invites additional development such as a VA examination (which was obtained), but does not stand alone as an opinion. Moreover, even if the author does state an opinion, he does not substantiate it with clear reasoning, which gives it very limited probative value. By contrast, the medical evidence discussed above discusses the history and etiology of the disability on appeal, and concisely determines that it is less likely that the Veteran’s left knee disability contributed to his right knee pain. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Other Considerations While the Veteran believes that his back and right knee disorders are proximately due to or aggravated beyond their natural progression by his service-connected knee disability, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the July 1999 and September 2013 opinions. The Board has considered the Veteran’s assertions that his back disorder and right knee disorder were caused by a service connected left knee disability. The Veteran is competent to report symptoms such as pain, and his reports are credible and entitled to probative weight. His reports have been internally consistent, and are consistent with other evidence of record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the September 2013 VA examiner, upon physical examination of the Veteran, opined that the Veteran’s back disability is less likely as not related to an in-service injury, event, or disease, including his service-connected left-knee disability. According to the examiner, it was so clear from the Veteran’s medical records and examination that his back disability is due to his occupation as a bartender, that it is the proximate and predominant cause of his current disorder. In support of his claim, the Veteran mentions a statement of Dr. J.L. According to the Veteran’s statement dated May 2013, Dr. L. stated that it was understandable that favoring the left knee for a long period of time could contribute to the need for right knee surgery Dr. L. also is reported to have said that the Veteran’s knee problems could “most certainly” lead to the Veteran’s back injury. As stated, this opinion offers a possibility, but falls short of an actual opinion that can be afforded probative value for service connection purposes. The VA examiner’s opinion, by contrast, offers adequate reasoning for the conclusion that the Veteran’s back pain is due to her post-service occupation, rather than the Veteran’s left knee disability. The Board assigns more probative value to the VA examination. It points to objective studies of the Veteran’s musculoskeletal system using radiographic imaging technology, whereas the private orthopedic surgeon’s statement, as related by the Veteran, does not discuss specific medical records or studies. Consideration has been given to the statements made by the Veteran relating his back disorder to active service. The Federal Circuit has held that “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). However, the Veteran is not competent to provide testimony regarding the etiology of a back disorder or a right knee disorder. See Jandreau, 492 F.3d at 1377, n.4. Because such disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, any unsubstantiated statements that Veteran’s disorders are due to service are found to lack competency.   Considering the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. The appeal is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Z. Maskatia, Associate Counsel