Citation Nr: 18156739 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 10-13 999A DATE: December 11, 2018 ORDER Entitlement to service connection for degenerative disc disease of the lumbar spine as secondary to service-connected residuals, right knee surgery is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, the Veteran’s degenerative disc disease of the lumbar spine is proximately due to his service-connected residuals, right knee surgery. CONCLUSION OF LAW The criteria for a grant of service connection for degenerative disc disease of the lumbar spine as secondary to the service-connected residuals, right knee surgery, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1996 to December 1998. This issue on appeal arises from an August 2008 rating decision. The Board observes that the claim for service connection for a back condition was originally denied in a September 2007 rating decision. However, the September 2007 rating decision did not become final because new and material evidence (including a February 2008 medical nexus opinion) was submitted within a year following the decision and the matter was readjudicated in August 2008. See 38 C.F.R. § 3.156 (b). As such, there is no need for the Board to reopen the claim prior to appellate review of the matter on the merits. The Veteran was scheduled for a Board hearing in June 2018 and again in November 2018. However, the hearing was cancelled as the Veteran is incarcerated. As such, his hearing requested is deemed withdrawn. Entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected residuals, right knee surgery The Veteran has asserted that his low back disability is caused his service-connected right knee disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). Initially, the Board notes that VA clinical records show that the Veteran has been diagnosed with degenerative disc disease of the lumbar spine. However, there is no evidence of a low back disability in service, within one year of discharge or directly linking the Veteran’s back disability to service. Rather, the Veteran has primarily asserted that his low back disability is secondary to his service-connected right knee disability. After considering the totality of the evidence, the Board finds that, when resolving the benefit of the doubt in favor of the Veteran, service connection for degenerative disc disease of the lumbar spine is warranted as secondary to the Veteran’s right knee disability. In this regard, a February 2008 VA medical doctor determined that the chronic gait disturbances caused by the Veteran’s right knee disability had resulted in the deterioration of the lumbar spine. The examiner concluded that the lumbar spine spinal affliction was exacerbated and secondary to his right knee dysfunction. VA clinical records document that the examiner had treated the Veteran for his low back disorder as well as his right knee disorder since 2006 and, thus, appears to have been aware of the Veteran’s medical history. Significantly, there is no other medical opinion of record. The Agency of Original Jurisdiction appeared to deny the claim on the basis that the medical evidence showed that the Veteran’s low back disorder pre-existed his January 2007 right knee surgery and there was some indication of a prior work injury. However, the evidence clearly shows that the Veteran’s right knee disability was incurred during service and had existed since 1996, many years prior to any reports of back pain. Moreover, as the work-injury is documented in the clinical records, it be would reasonable to assume that the Veteran’s doctor was aware of such injury. The Board also finds it significant that although not directly addressing the back disability, the March 2009 VA fee-based examination observed that the Veteran’s right knee disability resulted in uneven weight-bearing, which caused the Veteran’s left knee and bilateral hip conditions. In light of the February 2008 VA opinion and when resolving the benefit of the doubt in favor of the Veteran, service connection is warranted for degenerative disc disease of the lumbar spine as secondary to the service-connected residuals, right knee surgery. In reaching this conclusion, the Board finds that the evidence is in at least a state of equipoise. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.N. Moats