Citation Nr: 20021709 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 12-23 961A DATE: March 26, 2020 ORDER Service connection for degenerative disease of the spine as secondary to service-connected left knee disability is granted. FINDING OF FACT Degenerative disease of the spine is caused by the Veteran’s service-connected left knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative disease of the spine have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the Army from May 1973 to May 1978. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In November 2017, the Veteran presented testimony at a video hearing before the undersigned Veterans Law Judge (VLJ). In a September 2019 rating decision, service connection for a left knee disability was granted. This represents a full grant of the benefits sought, and the issue is no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record contains no indication that the Veteran has disagreed with the initial rating or effective date assigned, thus, those matters are not in appellate status. See Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). This issue was previously before the Board in March 2018, when it was remanded for further development, that development was completed, and the case has since been returned to the Board for appellate review. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2019). In light of the Board’s favorable decision, however, any deficiencies in VA’s duties to notify and assist the Veteran with his claim decided herein are moot. The Board finds that there has been substantial compliance with the prior March 2018 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The issue was remanded for an adequate VA examination and opinion. The Veteran received a VA examination and opinion in May 2019 that adequately complied with the March 2018 remand directives. Accordingly, the Board will proceed with appellate review. Service connection 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 (2012); 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a 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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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) (2019). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310 (2019); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran alleges that his back disorder is result of his service- connected left knee disability. During the November 2017 Board hearing, the Veteran explained that he was told by his private treatment providers that his left knee disabilities caused his back problems. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The May 2019 VA examination showed a diagnosis of degenerative disease of the spine. The examiner explained that the other diagnosis in the file including degenerative disc disease (DDD) and degenerative joint disease (DJD) of the spine encompasses degenerative disease of the spine. Accordingly, the first element of service connection has been met. Second, the Board finds that the most probative evidence of record supports a finding that the Veteran’s arthritis of the spine was caused by his left knee disability. The Veteran received a VA back examination in May 2010. The examiner performed a knee and back examination. During the knee examination the examiner noted antalgic gait. During the back examination the examiner noted normal gait. The examiner opined the Veteran’s back disorder was at least as likely as not cause by the Veteran’s left knee disorder. The examiner explained that current literature does support the idea of abnormal transmittance of force to contralateral joints, and other supportive structures to include the spine, as a result of pain/ damage in the weight bearing joint as a means of compensation and “favoring.” The examiner made this opinion based on lack of an additional back injury, near normal lumbar spine radiographically, and current lumbar examination. The Veteran submitted a September 2013 private treatment provider opinion. The private provider stated they believed the Veteran’s left knee pain was related to his low back pain. The private provider explained the Veteran is favoring his left knee and that is adversely affecting his posture. The Veteran received a March 2017 VA examination. The examiner opined the that the Veteran’s degenerative arthritis of the spine was less likely than not caused by the left knee disability. The examiner stated there was insufficient medical evidence to substantiate a nexus related to inservice complaints of knee pain. The examiner noted, during the September 2010 VA examination the Veteran was 55 years old with minimal marginal disease, not too unusual for his age, especially for someone who worked on concrete floors for long period of time. The Board affords no probative weight to the March 2017 opinion. First, while the opinion was for secondary service connection, the examiner seemed to address direct service connection in the rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (noting that, generally, a medical opinion should address the appropriate theories of entitlement). Second, the examiner failed to address aggravation. In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). Third, the examiner noted the incorrect date for the May 2010 VA examination. A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Lastly, the examiner failed to address the positive opinion in the May 2010 VA examination. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician’s access to the claims file and the thoroughness and detail of the opinion). Accordingly, the Board affords the March 2017 VA examination and opinion no probative weight. The Veteran submitted a separate October 2017 private provider opinion from his chiropractor. The private provider indicated they treated the Veteran for the past three years. The private provider opined the Veteran’s back pain is most likely related to him favoring his left knee. The private provider explained the left knee favoring is affecting the Veteran’s posture and causing the back pain. The Veteran received an additional VA examination in May 2019. The examiner opined that Veteran’s degenerative disease of the spine was less likely than not caused by any diagnosed left knee disorder. The examiner explained that typically the claim of degenerative spine disease is predicated on altered gait and/or posture. The examiner stated that in order to cause changes in the spine secondary to a knee problem, significant force would be expected to have applied to the spine through significant alterations in gait and/or posture. The examiner stated that after reviewing the records, the Veteran’s treatment providers did not note alterations in gait or posture. The examiner stated that if the Veteran’s gait and posture does not attract the notice of orthopedists and chiropractors such that it is documented as being abnormal, then it is not medically reasonable to attribute back problems to left knee problems. The examiner determined that based on lack of notation the alterations in gait and/or posture were not medically significant. The examiner specifically addressed the September 2013 and October 2017 medical opinions. For the September 2013 private opinion, the examiner stated the treatment provider did not note posture issues on an ongoing basis and so the opinion was not probative. For the October 2017 private opinion, the examiner stated that over the course of treatment the chiropractor did not attribute the back problems to the left knee disability by means of postural alteration. The Board affords no probative weight to the May 2019 VA examinations it is based on an erroneous picture of the Veteran’s medical history. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The examiner’s opinion is based solely on the finding that the private treatment records do not show posture and/or gait issues. A review of the record showed the Veteran’s private chiropractor, that rendered the October 2017 private opinion, regularly noted antalgic/altered posture. The Veteran’s private chiropractor sought to improve antalgic/ altered posture as noted in the following treatment plans: November 2016, March 2016, May 2016, July 2017, August 2017, September 2017, and October 2017. The May 2019 VA examination failed to address these treatment plans and based the opinion on an inaccurate factual premise. The several notations by the Veteran’s chiropractor to improve antalgic/altered posture indicatet that it was factually significant. The Board affords significant probative weight to the October 2017 private opinion and May 2010 VA examination. First, the October 2017 private provider is a chiropractor and specializes in spinal disorders. Second, the October 2017 private provider noted they have treated the Veteran for three years. Lastly, the May 2010 VA examination opinion is consistent with the Veteran’s private treatment records as the VA examiner noted an antalgic gait. The Board notes the May 2019 VA examiner’s rationale supports the October 2017 private opinion and May 2010 VA opinion. Unfortunately, the May 2019 VA examiner overlooked the treatment plans that showed the Veteran’s posture was altered. Resolving reasonable doubt in the Veteran’s favor, the Board finds the most probative evidence of record supports a finding that the Veteran’s left knee disability caused his degenerative disease of the spine. Accordingly, service connection is granted. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bruton, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.