Citation Nr: 18153898 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-20 967 DATE: November 28, 2018 ORDER Entitlement to service connection for degenerative joint disease of the lumbar spine is denied. REMANDED Entitlement to service connection for a right hip condition, to include as secondary to service connected right ankle fracture is remanded. Entitlement to service connection for a right knee condition, to include as secondary to service connected right ankle fracture is remanded. Entitlement to a disability rating in excess of 10 percent for spondylosis with degenerative joint disease of the cervical spine, mild at C5-C6, C6-C7, secondary to trauma is remanded. FINDING OF FACT The probative evidence of record demonstrates that the Veteran’s degenerative arthritis of the lumbar spine did not originate in service or for many years thereafter, is not related to any incident during active service and is not caused or aggravated by his service-connected disabilities. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1110, 1116, 5107 (West 2016); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, to include arthritis, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability can be service connected on a secondary basis if it is proximately due to or the result of a service-connected condition. 38 C.F.R. § 3.310 (a). Moreover, secondary service connection may be established, as well, by any increase in severity (i.e., aggravation) of a nonservice-connected condition that is proximately due to or the result of a service-connected condition. See 38 C.F.R. § 3.310 (b), effective October 10, 2006. See 71 Fed. Reg. 52,744 -52,747 (September 7, 2006); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. In short, in order to establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) probative evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for degenerative joint disease of the lumbar spine The Veteran is seeking service connection for a low back condition. His service treatment records (STRs) reflect that in August 1977 he underwent a thoracic spine x-ray which showed no significant abnormalities. However, in December 1977 he sought treatment for an injury to his back. In January and October 1986, the Veteran was treated again for thoracic back pain. During his October 1986 treatment, the Veteran was diagnosed with thoracic back pain/strain. Later, in March 1989 it was noted that the Veteran experienced pain and tenderness near T1 of his lower back. Despite this treatment, there were no notations relating to the Veteran’s thoracic or lumbar spine on his March 1992 retirement examination. On the contrary, his spine was clinically evaluated to be normal. Post service, in June 2013, the Veteran underwent a lumbar spine x-ray, which showed normal vertebral heights, narrowing of intervertebral disc spaces at L4-L5 and L5-S1. Minor degenerative osteophytes were seen ventrally at L2-L3. Vascular calcification was seen in the anterior soft tissue. It was noted had chronic cervical/lumbar DJD/DDD with constant pain. In December 2013, the Veteran sought treatment for low back pain and was diagnosed with lumbago. In March 2014 the Veteran was afforded a VA back examination. Based upon an in-person examination and a review of the Veteran’s claims file, the examiner determined that the Veteran did not now have, nor had he ever, been diagnosed with a thoracolumbar spine condition. The Veteran’s medical history included low back pain particularly with walking that radiates to the left and right leg and down below the knee. Based upon this in-person examination and a review of the claims file, the examiner determined that it was less likely than not that the Veteran’s low back pain with degenerative changes were less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner reasoned that degenerative lumbar disc disease is a multifactorial disease with genetic, activity and physiological causes that are more commonly associated than an isolated in-service lumbar strain. Following the exam in July 2014, the Veteran continued to seek treatment for increased back pain. The Board finds that the preponderance of the evidence is against the Veteran’s claim for service connection for a low back condition and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In reaching this conclusion the Board has considered the various statements submitted by the Veteran in support of his claim. The Veteran, while competent to report his symptoms, is not competent to render a medical opinion linking his diagnosed degenerative changes of the lumbar spine to service as this requires specialized knowledge and training. The accuracy of the Veteran’s reports of symptoms is better assessed by a medical professional, here the March 2014 VA examiner. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, the Board has placed greater weight on the opinions reached by the VA examiner who, as a trained health care profession, is competent to render opinions regarding medical nexus. To the extent that the Veteran has implied a continuity of symptomatology in asserting that his current low back disability originated during service and is a continuation of his inservice back complaints, the Board finds that this assertion is simply outweighed by the other evidence of record, including the opinion of the March 2014 VA examiner and the lack of findings or complaint of low back symptomatology at the time of his separation from service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As the preponderance of the evidence is against the Veteran’s claim for service connection for a low back disability, that claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107 (b). REASONS FOR REMAND 1. Entitlement to service connection for a right hip condition, to include as secondary to service connected right ankle fracture is remanded. The Veteran claims that he has right knee condition which was caused by his active duty service, to include a service connected right ankle fracture. The Veteran’s postservice treatment record contain various complaints of right hip pain. On remand, the Veteran should be afforded a VA examination to determine whether he currently has a disability of the right hip that is etiologically to service or his service connected right ankle disability. 2. Entitlement to service connection for a right knee condition, to include as secondary to service connected right ankle fracture is remanded. The Veteran claims that he has right knee condition which was caused by his active duty service, to include a service connected right ankle fracture. In March 2014 the Veteran was afforded a knee and lower leg examination, but there was no diagnosis noted and no opinion was provided. However, an April 2015 an x-ray showed the Veteran had mild degenerative changes to the right knee and with joint space narrowing. A May 2015 x-ray also showed mild arthritis of the right knee. His STRs also show that he sought treatment for knee pain in service, including a stiff and painful knee in December 1977. When VA undertakes to provide an examination, “[the Secretary] must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. The Board must ensure that the examination is adequate.” Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 3. Entitlement to a disability rating in excess of 10 percent for spondylosis with degenerative joint disease of the cervical spine, mild at C5-C6, C6-C7, secondary to trauma is remanded. Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an increased rating of cervical spine disability. The Veteran was provided VA examinations for his cervical spine disability in April 2013 and May 2016. Although the Veteran has been afforded examinations which were fairly recent and contemporaneous in time, the Board finds the examinations were not fully adequate. Specifically, the Court in Correia v. McDonald, No. 13-3238 (Vet. App. July 5, 2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. A review of the claims file reveals that the May 2016 VA cervical spine examination, nor VA or private treatment records, demonstrate range of motion testing for the cervical spine in passive motion, weight-bearing, and nonweight-bearing situations. In short, the VA examinations were inadequate. Thus, at present, none of the medical evidence of record fully satisfies the requirements of Correia and 38 C.F.R. § 4.59. As such, a new VA cervical spine examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran’s service-connected cervical spine disability. In order to comply with the Correia case, it is requested that the VA examiner test the range of motion for the cervical spine in active motion, passive motion, weight-bearing, and nonweight-bearing situations. If such testing cannot be performed, the examiner must explain why such testing could not be performed. The matters are REMANDED for the following action: 1. Update the claims folder with the Veteran’s VA treatment records from VA medical facilities. 2. After the above development has been completed to the extent possible, arrange for the Veteran to undergo a VA knee examination with an appropriate medical professional in order obtain a medical opinion on the nature and etiology of the Veteran’s claimed right hip and knee disabilities, to include as secondary to his right ankle fracture. The claims folder and a copy of this REMAND must be made available to the examiner. The examiner should indicate receipt and review in any report generated. All indicated studies, tests, and evaluations should be performed. All pertinent symptomatology and findings should be reported in detail. Based on a review of the claims folder and the evidence from clinical evaluation, the examiner should identify the nature of any current right hip and/or knee disorder and then provide an opinion for the following: (a) Whether it is at least as likely as not (i.e. 50 percent probability) that such right hip and/or knee disorder was related to the Veteran’s active service; taking into account the Veteran’s lay statements. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the currently diagnosed right hip and/or knee disorder is proximately caused or aggravated by his service-connected right ankle fracture. Note: The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. If the Veteran’s current right knee disorder is aggravated by his service-connected right ankle disability, the examiner should report the baseline level of severity prior to the onset of aggravation and the increased manifestations which, in the examiner’s opinion, are proximately due to the service-connected right ankle disability. 3. The AOJ should secure the appropriate VA cervical spine examination to ascertain the current severity and manifestations of the Veteran’s service-connected cervical spine disability. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the Veteran’s service-connected cervical spine disability on the Veteran’s occupational functioning and daily activities. The VA examiner should provide a complete rationale for any opinions provided. In particular, in order to comply with the Court’s recent precedential decision in Correia v. McDonald, No. 13-3238 (Vet. App. July 5, 2016), the VA cervical spine examinations must include range of motion testing in the following areas: * Active motion; * Passive motion; * Weight-bearing; and * Nonweight-bearing. If the VA examiner is unable to conduct all the required testing or concludes that certain aspects of the required testing are not necessary or are not relevant for the cervical spine, he or she should clearly explain why that is so. 4. Thereafter, the AOJ must readjudicate the issues on appeal with consideration of secondary service connection as applicable. If any benefit is not granted, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nelson, Associate Counsel