Citation Nr: 18156493 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-60 196 DATE: December 11, 2018 ORDER Entitlement to service connection for lumbar spine disability, best characterized as degenerative disc disease and degenerative joint disease, as secondary to service-connected right knee disability, is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his lumbar spine disability, best characterized as degenerative disc disease and degenerative joint disease, is proximately due to service-connected right knee disability. CONCLUSION OF LAW The criteria for secondary service connection for lumbar spine disability, best characterized degenerative disc disease and degenerative joint disease, are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1972 to August 1980. In a November 2016 VA Form 9, substantive appeal, which perfected the appeal herein, the Veteran indicated he desired a hearing before a Veterans Law Judge. However, in August 2017 correspondence, the Veteran withdrew his request for a Board hearing. Thus, the hearing request is deemed withdrawn and the Board may proceed with appellate review. 38 C.F.R. § 20.704 (e). Additional evidence, including evidence developed by VA such as VA treatment records most recently dated in October 2018, was received by VA subsequent to the most recent, October 2016, statement of the case issued for the appeal herein. The Veteran did not waive Agency of Original Jurisdiction (AOJ) review of this additional evidence. See 38 C.F.R. § 20.1304 (c). Nevertheless, as the Veteran’s claim is granted in full in the decision below, there is no prejudice to the Veteran by the Board’s adjudication of this appeal without remand for AOJ consideration of this additional evidence. 1. Entitlement to service connection for a lumbar spine disability, to include as secondary to service-connected right knee disability The Veteran contends his low back disability is secondary to his service-connected right knee disability. Specifically, in his September 2015 notice of disagreement, he reported, in part, that his intervertebral disk syndrome was caused by many years of favoring his right leg due to instability of his right knee. In this regard, the Veteran was service-connected for instability of the right knee and right knee degenerative joint disease from September 28, 2005 to January 30, 2012. From January 10, 2012 his service-connected right knee disability has been characterized as total right knee replacement. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection on a direct incurrence basis, the Veteran 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, 1167 (Fed. Cir. 2004). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest 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. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Additionally, service connection on the basis of continuity of symptomatology can be established for the chronic diseases specified at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disability that is proximately due to or aggravated by service-connected disease or injury. 38 C.F.R. § 3.310. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The question for the Board is whether it is at least as likely as not that the Veteran has a current lumbar spine disability that began during service, is etiologically related to an in-service injury, event, or disease, or is secondary to service-connected right knee disability. The Veteran satisfies the existence of present disability service connection element with regard to a lumbar spine disability. In this regard, an August 2014 back conditions disability benefits questionnaire endorsed a diagnosis of lumbar spine intervertebral disc syndrome and a May 2015 back conditions disability benefits questionnaire endorsed diagnoses of degenerative disc disease and degenerative joint disease of the lumbosacral spine at L4. Also of record are other diagnoses to include an April 2014 VA treatment record which provided an impression of spondylosis of the lumbar spine with disc disease at L4-L5 and facet hypertrophy L4-L5 and L5-S1 and straightening of the lumbar spine which may be accentuated by positioning and/or muscle spasms, May 2014 and June 2014 private medical records which provided assessments of lumbar radiculitis right L4, lumbar disc degeneration, lumbar spondylosis, low back pain, and myalgia, and a June 2016 private medical which provided an assessment of lumbar facet arthropathy, lumbar spondylolisthesis, and lumbar degenerative disc disease. However, the Board finds the August 2014 and May 2015 back conditions disability benefits questionnaire examiners’ diagnoses of intervertebral disc disease/syndrome and degenerative joint disease are the best characterization of current disability. In this regard, forensic evaluators, such as VA examiners, generally have access to more sources of information, such as service treatment records, have more time to review relevant private and/or VA treatment records, are able to conduct objective testing, and are able to use structured diagnostic interviews, which are more accurate than unstructured interviews, as they do not have to worry about the impact of their diagnosis on the therapeutic alliance. The August 2014 examiner addressed the claim on a direct incurrence basis but not on a secondary basis. The May 2015 examiner provided an explicit opinion as to the Veteran’s L4 radiculitis, and found it was less likely as not caused by the service-connected right knee disability. The May 2015 examiner also explained the Veteran’s degenerative disc disease and degenerative joint disease of the lumbosacral spine with intermittent, self-limited episodes of nerve root inflammation (radiculitis) particularly after a fall (as seen here) were commonly associated with aging, and were longstanding problems that developed over many years. It was also opined that this spinal arthritis with nerve root inflammation at L4 was not caused by service-connected total right knee replacement two years earlier. However, the May 2015 examiner did not address any aggravation or the specific contention that an altered gait from the service-connected right knee disability led to the Veteran’s lumbar spine disability. Thereafter, an October 2016 examiner found it was less likely as not that the Veteran’s lumbar degenerative disc disease and/or degenerative joint disease were secondary to his service-connected right knee replacement as there was no historical evidence in the records reviewed of marked abnormality of gait or posture due to the right knee total knee arthroplasty that would have resulted in abnormal stresses to the lumbosacral spine. The October 2016 examiner explained that degenerative disc disease and/or degenerative joint disease of the spine were commonly associated with aging, and were longstanding problems that developed over many years. The October 2016 examiner’s opinion tends to weigh against the claim; however, consistent with the Veteran’s statements of right knee instability and an altered gait, a September 2006 VA joints examination report documented, in part, right knee with degenerative joint disease with moderate functional impairment and some incoordination/limp on the right. Similarly, a June 2011 joints examination report documented the Veteran’s gait was antalgic with poor propulsion and described that he swung his arms wide and had a severe limp on right. Thus, the evidence reflects the existences of a long-standing gait alteration due to a right knee disability. Thus, the October 2016 examiner’s findings lack probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Conversely, as noted above, a June 2016 private medical record endorsed diagnoses of lumbar facet arthropathy, lumbar spondylolisthesis, and lumbar degenerative disc disease, and stated the Veteran’s knee issues could be a contributor to his back pain, but not the entire cause of it. Thus, with resolution of doubt in the Veteran’s favor, the Board finds the June 2016 private medical record findings, that Veteran’s knee issues could be a contributor to his back pain, to be akin to a finding that the Veteran’s lumbar spine disability is proximately due to or a result his service-connected right knee disability. Therefore, the Board finds there is sufficient evidentiary weight to substantiate the claim. Further inquiry could be undertaken with a view towards development of the claim so as to obtain an additional medical opinion. However, to do so in this case would only serve the purpose of obtaining negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a veteran). Moreover, under the benefit of the doubt rule, 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. Thus, resolving any reasonable doubt in the Veteran’s favor, the Board finds that his lumbar spine disabilities, best characterized degenerative disc disease and degenerative joint disease, are proximately due to his service-connected right knee disability. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.310 (b); Gilbert v. Derwinski, 1 Vet. App. 4 (1990). Accordingly, the Veteran’s claim for service connection is granted on this basis and further discussion of other theories of entitlement is not warranted. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Espinoza, Counsel