Citation Nr: 1826210 Decision Date: 04/27/18 Archive Date: 05/07/18 DOCKET NO. 10-45 332 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a low back disability, to include as secondary to service-connected left knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Polly Johnson, Associate Counsel INTRODUCTION The Veteran had active service from February 1971 to January 1979. He also served on active duty for training (ACDUTRA) from February 1979 to May 1981, and had subsequent service with the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2011, the Veteran testified at a hearing before the undersigned; a transcript of that hearing is of record. In December 2013, June 2016, and August 2017, the Board remanded the case for additional development and it now returns for further appellate review. FINDING OF FACT The Veteran's current low back disability does not relate to an in-service injury, did not manifest in or within a year of service, and was not caused or aggravated by a service-connected left knee disability. CONCLUSION OF LAW Service connection for a low back disability, to include as secondadry to a service-connected left knee disability, is not warranted. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Procedural Duties VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Neither the Veteran nor his representative has raised any issues with the duty to notify or to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As degenerative joint disease (DJD) of the spine has been diagnosed, see October 2016 VA examination report, and arthritis is defined as chronic in section 3.309(a), the provisions of subsection 3.303(b) for chronic diseases apply and the claim may be established with evidence of chronicity in service or a continuity of symptomatology after service. See Walker v. Shinseki, 708 F.3d 1331, 1338-1339 (Fed. Cir. 2012). Additionally, for Veterans who served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Further, entitlement to service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, a service connected disease or injury. 38 C.F.R. § 3.310(a). The Court has construed this provision as entailing "any additional impairment of earning capacity resulting from an already service connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service connected condition." Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a). Factual Background The Veteran contends that his low back disability may be related to service; or alternatively, that his service-connected left knee disability which manifests in hyperextension puts pressure on his back causing pain. See August 2011 Board Hearing Transcript. Service treatment records show that in September 1974, the Veteran reported back pain and muscle spasms in his upper lumbar area. A March 1976 treatment record shows back pain. In his September 1978 report of medical history, the Veteran reported recurrent back pain off and on. In connection with his December 2009 claim, the Veteran underwent a VA examination in March 2010. The Veteran was not sure when his back became problematic but said he noticed that favoring his left knee caused back pain. The examiner opined that the back condition was less likely than not related to any incident in service or as a result of his knee injury. The rationale was that the Veteran was treated in service in 1976 for back pain related to the T6-T10 region, which was unrelated to where the Veteran was currently experiencing pain. With respect to whether his back pain was related to his left knee, the examiner stated that his left knee was not documented as problematic until recently and would not cause degenerative change unless the Veteran had long established an abnormal gait and treatment. The examiner did not consider the Veteran's other complaints of back pain in service. At his August 2011 Board hearing, the Veteran testified that his knee problems have caused his back pain, though he noted that no doctors had suggested that to him. See Board transcript at p. 21. He stated that he did not walk with a limp and that his knee hyperextended. He also said that he did not believe that he injured his back in the March 1972 motorcycle accident, and that he was not treated at the time for any back injury. The Veteran underwent another VA examination in January 2014. The Veteran again stated that he was unsure of when his back pain onset, but that it had been present for "a long time." He stated that he believed his back pain to be secondary to his left knee condition. The examiner stated that the Veteran had no history of an abnormal gait. The examiner opined that the Veteran's low back disorder was less likely than not incurred in or caused by the Veteran's military service, after noting that a March 1976 service record reflected the Veteran's complaint of back pain in the thoracic region of the spine. The examiner also noted that despite the Veteran's statements that he had back pain for a long time, the Veteran was not specific and there was no documentation for back pain until recently. Finally, the examiner noted that the slight osteophytes to the L4 and L5 vertebral bodies were minimal and were likely age-related. Furthermore, the examiner opined that the Veteran's low back disorder was less likely than not caused or aggravated by his service-connected left knee disability. The examiner reasoned that, while longstanding limping or antalgic gait in some instances can lead to back pain, he did not have a history of either. A June 2016 Board decision noted that the examiner who conducted the January 2014 VA examination only considered the March 1976 treatment record and did not consider other back-related complaints in service. Accordingly, a new examination was ordered. The October 2016 examiner noted a review of the claims file and listed the history of the Veteran's low back complaints beginning in service, to include a March 1972 motorcycle accident where he suffered injuries to his elbow and knee; the September 1974 treatment record showing back pain; a March 1976 treatment record indicating sharp pain and tightness in the Veteran's back; and a September 1978 record showing that the Veteran had on and off back pain. The examiner noted that from 1979 through 1997, including while in the Reserves, the Veteran did not mention back pain. Notably, the examiner noted that there were in fact no complaints of back pain until 2010. Ultimately, the examiner opined that the claimed back condition was less likely than not incurred in or caused by the claimed in-service injury. The rationale was that the Veteran did not complain of back pain at the time of a March 1972 motorcycle accident, and though he did complain of back pain in 1974 and 1976, the examiner attributed those to acute muscle spasms that were treated conservatively. The examiner reasoned that there was no documentation to suggest the condition failed to respond to conservative therapy or became chronic. Moreover, the Veteran did not mention back pain in any military service forms from 1979 to 1997, nor did he mention back pain at all until 2010 (32 years after the last complaint of pain in 1978). Citing to medical literature, the examiner stated that back pain is the second most common symptom-related reason for clinician visits in the United States, and up to 84 percent of adults have low back pain. Accordingly, it was the examiner's opinion that the Veteran's low back disorder was not likely related to his in-service motorcycle accident in 1972, or a continuation of his isolated complaints of mid-back and upper lumbar pain in 1974 and 1976. There was no evidence of continuity and chronicity, and the degenerative arthritis was most likely age-related. In a September 2017 addendum opinion addressing secondary service connection, the examiner opined that the Veteran's low back disability was less likely than not caused or aggravated by the Veteran's service-connected left knee disability. The examiner cited to medical literature as well as to various VA treatment records indicating that the Veteran had a normal gait. Specifically, the examiner noted that, based on the medical literature, there was nothing to confirm that the left knee condition alone, in the absence of other factors like leg length discrepancy or abnormal gait, would result in disability to or limitation of joints/articulations contralateral to or superior of the affected joint. One study indicated that it was "unlikely that injuries such as a meniscal tear involving either the medial or lateral meniscus or any condition, e.g. chondromalacia of the patella, etc., that caused a mild or moderate degree of limping over a relatively short period of time would have any major detrimental effect on the lumbar spine or opposite lower extremity." As there was no documentation of a temporary or prolonged sustained limp in the Veteran, the examiner found it to be less likely than not that the back strain was caused or aggravated by the knee disability. Analysis Upon review of the foregoing evidence, the Board concludes that the Veteran is not entitled to service connection for a low back disability, to include as secondary to a service-connected left knee disability. As an initial matter, the Board notes that the Veteran has been diagnosed with a low back disability, to include degenerative joint disease of the lumbar spine. As such, the Board finds that the current disability element is established. See Shedden, 381 F.3d at 1167. Moreover, the Veteran's service treatment records show multiple complaints of back pain in service; affording the Veteran all due consideration, the second element of service connection is also met. Id. Thus, the issue turns on whether there is a nexus between the in-service events and the present disability, or whether there is evidence of a nexus between the service-connected knee disability and the present low back disability. Acknowledging the Veteran's complaints of low back pain in service, it was not until 2010, more than 30 years after separation from active duty service, that low back pain was reported by the Veteran. This multi-year gap between discharge from active duty service is for consideration in determining whether the Veteran's low back disability is related to service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim). Moreover, there is no VA opinion of record that otherwise links the Veteran's current back disability to an incident of his military service. Indeed, at his VA examinations, the Veteran could not pinpoint when his back pain started, and at his Board hearing, the Veteran affirmatively noted that he did not injure his back in the March 1972 motorcycle accident. The Board finds the October 2016 medical opinion to be the most probative, insofar as the examiner reviewed the Veteran's medical history and considered the in-service complaints of back pain. Accordingly, the Board finds that service connection is not warranted for a low back disability on a direct basis. In order to establish service connection on a presumptive basis for a chronic disease, the Veteran's arthritis of the back must have become manifest to a degree of 10 percent or more within one year from the date of termination of his period of active duty service. In this case, there is no medical evidence or competent lay evidence that the Veteran's arthritis manifested to a compensable degree within one year of his separation from active duty. Indeed, the diagnosis of arthritis is not within the ability of a lay person to diagnose because a competent medical expert could not diagnose the Veteran based on reported symptoms alone and required specialized testing beyond ordinary clinical evaluation. See Mattke v. Deschamps, 374 F.3d 667, 670 (8th Cir. 2004) (providing that a diagnosis by laboratory testing is distinctly not within the realm of common lay knowledge). Hence, the evidence is against establishing that the Veteran is entitled to service connection on a presumptive basis for his current low back disability. The Board acknowledges the Veteran's assertions that he has been feeling symptoms of low back pain as the result of his service-connected left knee disability. It is acknowledged that the Veteran is competent to give evidence about his observable symptomatology. See Layno v. Brown, 6 Vet. App. 465 (1994). It is further acknowledged that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Here, however, the Veteran has not alleged that he began having symptoms of low back pain during military service and ever since service. Indeed, at his VA examinations, he stated that he was not sure when back pain onset. For these reasons, continuity of symptomatology has not been established. The Veteran's claim for service connection on a secondary basis includes his own assertions that his current low back disability was caused by his service-connected left knee disability. As noted above, the Veteran is competent to report on symptoms; however, as a lay person not trained in medicine, his opinion that his current disability is secondarily related to his left knee is not persuasive evidence sufficient to establish service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The nexus issue presented in this case is medically complex because it requires expert knowledge of the body's mechanics and its impact on the spine. Thus, medical evidence on this point is required. In this regard, the Board finds the January 2014 and September 2017 VA examiners' opinions to be highly probative on causation and aggravation. The examiners thoroughly review the Veteran's records, VA treatment records, lay testimony, and medical literature, and concluded with supporting rationale that the Veteran's low back disability was less likely than not caused by or aggravated by his service-connected left knee disability. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (providing that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against any contrary opinions). Both examiners noted that without evidence of a longstanding limp or antalgic gait, it was less likely than not that the Veteran's back pain was caused or aggravated by his left knee disability. There is no medical evidence to the contrary. Accordingly, service connection cannot be established on a secondary basis. In sum, taking into account all of the relevant evidence of record, the preponderance of the evidence is against a finding of a relationship between the Veteran's low back disability and his military service, or his service-connected left knee disability. Accordingly, the Board finds that the claim of entitlement to service connection for a low back disability, to include as secondary to a service-connected left knee disability, must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a low back disability, to include as secondary to a service-connected left knee disability, is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs