Citation Nr: 20032271 Decision Date: 05/07/20 Archive Date: 05/07/20 DOCKET NO. 17-25 028 DATE: May 7, 2020 ORDER Entitlement to service connection for a back disability to include as secondary to a service-connected bilateral knee disability is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, the most probative evidence establishes that the Veteran’s current back disability is proximately due to, the result of, or aggravated by his service-connected bilateral knee disability. CONCLUSION OF LAW The criteria for entitlement to service connection for a back disability to include as secondary to a service-connected bilateral knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1979 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) denying the Veteran’s September 2012 claim. In February 2020, the Veteran provided testimony before the undersigned Veterans Law Judge. A copy of the Board hearing transcript (2020 Hearing Transcript) has been associated with the electronic claims file. Service connection may be considered on a secondary basis under 38 C.F.R. § 3.310. The three elements that must be met to grant secondary service connection are: (1) a current disability that is not already service-connected, (2) at least one service-connected disability, and (3) evidence that the non-service-connected disability is either: (a) proximately due to or the result of a service-connected disability, or (b) aggravated beyond its natural progress by a service-connected disability. 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439 (1995). To meet the third element, the evidence must demonstrate an etiological relationship between a service-connected disability (knee disability) and the non-service-connected disability (back disability) as being proximately due to or the result of the service-connected disability. See Buckley v. West, 12 Vet. App. 76 (1998). In other words, there needs to be a nexus of the current disability and the service-connected disability for secondary service connection. Decisions of the Board shall be based on the entire record and consideration of all evidence, lay and medical, that is material. 38 U.S.C. § 7104(a); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.303.(a). In evaluating the evidence in any given appeal, it is the responsibility of the Board to make appropriate determinations of (a) competence; (b) credibility; and (c) weight. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Entitlement to service connection for a back disability to include as secondary to a service-connected bilateral knee disability The first element to be met for secondary service connection is whether a current non-service-connected disability exists. The evidence in the case file includes two diagnoses of a current non-service-connected back disability since the Veteran filed his claim in 2012. A January 2017 VA treatment record diagnosed the Veteran with degenerative disc disease (DDD) relating to his back relying on a July 2015 radiological study. Additionally, a February 2020 VA treatment record diagnosed the Veteran with ongoing/chronic sacroiliitis that was noted to be present since his military injury and is secondary to his knee disability. Therefore, the first element of a current non-service-connected back disability is met. The Veteran has several service-connected disabilities, which would satisfy the second element. According to the February 2013 rating decision code sheet, the Veteran’s service-connected disabilities include status post of the left total knee replacement, medial meniscal tear of the right knee, traumatic arthritis of the right knee, and traumatic arthritis of the left knee. Thus, the Veteran has a service-connected bilateral knee disability, which meets the second element for secondary service connection. The third element of whether a nexus exists between the back disability and the knee disability is less clear. A medical nexus opinion must address both causation and aggravation by the service-connected disability in the opinion’s rationale for secondary service connection. If both are not addressed, then the medical nexus opinion is inadequate. El-Amin v. Shinseki, 26 Vet. App. 136 (2012). There are two VA compensation and pension exam (VAX) medical opinions and two VA treatment records in the case file addressing the issue of nexus. As with all types of evidence, it is the Board’s responsibility to weigh conflicting medical evidence to reach a conclusion as to the ultimate grant of service connection. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). The Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. See Evans v. West, 12 Vet. App. 22 (1998). Each piece of relevant evidence must be analyzed for competency, credibility, and weight. Medical opinions are deemed competent since they are from medical professionals. 38 C.F.R. § 3.159(a)(1). In July 2013, the Veteran underwent a VAX. After reviewing the case file and an in-person exam of the Veteran, the examiner stated the Veteran’s knee replacement could be contributing to back pain, but he could not solely blame the entire etiology on the knee replacement. He stated that the combination of the Veteran’s job and knee replacement could be contributing. These opinions are speculative because the examiner says these “could” be the causes. A speculative opinion has little to no probative value. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Moreover, the examiner does not include supporting data or a reasoned medical explanation of his conclusion that the Veteran’s occupation is at least as likely as not for causing the current back pain. Such supporting data and/or reasoned medical explanation of the examiner’s conclusion are required by Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 301 (2008). Without supporting data in the rationale to justify the degree of certainty, a medical opinion is inadequate. Bloom v. West, 12 Vet. App. 185 (1999). The premise of the examiner’s nexus opinion is based on a factual premise that ignored lay evidence in the case file. Specifically, the 2012 statement from the Veteran’s supervisor and the 2012 statement by the Veteran’s co-worker contradict the factual basis of the examiner’s opinion. As explained below, these two lay statements are given some to significant probative weight. The Veteran’s supervisor states that the Veteran is unable to perform his job duties as a CT Tech since the Veteran’s surgery in 2008. The co-worker states that the Veteran does not assist with transporting patients. Since the examiner relies on inaccurate facts and fails to provide a rationale to justify the degree of medical certainty, his nexus opinion is assigned no probative weight. A January 2017 VA treatment record diagnosed the Veteran’s back pain as degenerative disc disease (DDD) of the lumbar spine. The record noted that the back pain was likely exacerbated by left knee deformity which was surgically corrected 2008. This is the same physician who ordered the July 2015 lumbar study. The July 2015 radiologist report noted significant abnormalities of the lumbar spine. The lumbar spine study showed moderate disc space narrowing with degenerative spurring and probable slight retrolisthesis at L2-L3. This VA treatment record does not a provide a rationale explaining its conclusion or the degree of certainty, which makes the opinion inadequate. The VA treatment record is supported by a radiological report, which is objective evidence. In addition, this VA treatment record is issued by the Veteran’s primary care physician, who has been treating the Veteran for a lengthy period. Balancing the objective evidence, inadequate rationale, and the lengthy period of treatment from this physician, this VA treatment record opinion is assigned some probative weight. In March 2017, the Veteran had a VAX. The examiner concluded the Veteran’s back disability is less likely than not incurred or caused by the two in-service incidents in August 1988 because those incidents were acute and self-limiting. The examiner does not explain why the two incidents were self-limiting even though they were a few days apart. Thus, the examiner’s conclusory opinion is inadequate. The service treatment records reveal that the Veteran felt sharp back pain after lifting boxes in August 23, 1988, at which time he was diagnosed with a lumbar strain. He returned on August 26, 1988, stating the lower back pain was getting worse. The service treatment record of August 26, 1988 indicates the Veteran was seen for the same problem on August 23, 1988. These service treatment records directly contradict the examiner’s conclusion that the two incidents in August 1988 were isolated and separate. Therefore, the examiner’s opinion relies on an inaccurate factual premise. The Veteran testified at the February 2020 hearing that the two incidents in August 1988 was one continuous event involving his back. See February 2020 Hearing Transcript. The Veteran is competent to describe what he experienced first-hand in August 1998. He is also credible because the service treatment records corroborate the Veteran’s statements and it is facially plausible that two back pain incidents a few days apart in-service constituted one continual incident. Thus, the Veteran’s testimony is assigned significant probative weight in establishing the two August 1988 in-service events constituted one continuous event contrary to the VAX medical opinion. The examiner states the back disability is not chronic because no treatment or complaints of back disability exist after 1988 until 2013. The examiner ignores the Veteran’s statements made during the VAX. Specifically, the Veteran said his back pain was caused because his left knee was crooked and altered the alignment of his back. While the Veteran cannot provide a medical diagnosis, he is competent to state if he experienced pain, if his left knee was crooked, and if he felt an altered alignment of his back. Moreover, the Veteran’s service treatment records evidence that the Veteran complained about back pain four times while in service; specifically, in November 1985, July 1987, and May 1991 in addition to the August 1988 incident. Medical treatment records also reveal the Veteran complained of back pain in August 2002, August 2011, July 2012, and July 2013. During the August 2002 exam, the medical records note the exam did not include the Veteran to bend his knees because it caused him back pain. The Veteran also testified at the February 2020 hearing that he did not have insurance after he left the military so he self-medicated for his back disability with motrin, other over-the-counter-medications, and alcohol. See February 2020 Hearing Transcript. It is facially plausible that if a person lacked insurance, one would fail to seek medical care, creating a lack of any medical treatment records. The evidence in the case file confirms that the Veteran had an alcohol problem. Accordingly, the examiner’s justification that no treatment records for back pain means it was not a chronic disability is flawed. The examiner’s opinion ignores the medical and lay evidence of record and bases its conclusion on an inaccurate factual premise. The examiner believes the Veteran’s job and lifestyle caused wear and tear of the spine. There is no rationale explaining how lifestyle factors caused wear and tear of the spine or what “lifestyle” factors the examiner considered. Thus, the examiner’s belief is unsupported, conclusory, and speculative at best. The examiner’s opinion references contradictory statements made by the Veteran during the VAX. The examiner indicates the Veteran stated his back problems began 3-4 years prior (about 2013). This statement, if true, would bolster the examiner’s conclusion that the back disability is not chronic. However, the next statement referenced by the examiner is that the Veteran said he had back pain prior to his left knee replacement in 2008, which is corroborated by other treatment records. Accordingly, the March 2013 VAX medical opinion is assigned no probative weight because it contains several internal inconsistences, relies on inaccurate factual premises, ignores other medical and lay evidence on record, does not identify specific “lifestyle” factors considered, and lacks a rationale explaining the examiner’s degree of medical certainty. In a February 2020 VA treatment record, the Veteran was diagnosed with ongoing/chronic sacroiliitis that was noted to be present since his military injury and is secondary to his knee disability. The VA treatment record states that the Veteran’s knee disability causes the Veteran to compensate in his ambulation pattern which aggravates his back pain. This record includes a rationale that the service-connected knee disability causes the Veteran to compensate his movement and that compensated movement aggravates the Veteran’s current back disability. The Veteran testified at the February 2020 hearing that he walked with a limp and his legs were bowing so he stood crooked. See February 2020 Hearing Transcript. This testimony corroborates the VA February 2020 treatment record that the Veteran compensates with his ambulatory pattern. The February 2020 VA treatment record is adequate because the rationale only discusses aggravation. Since this is a secondary service connection claim and this is a favorable opinion, there is no prejudice to the Veteran that the rationale does not discuss causation. El-Amin v. Shinseki, 26 Vet. App. 136 (2012). The case file reveals that the Veteran has a lengthy treatment relationship with his primary care physician, which allows for greater probative weight to be assigned to this opinion. Accordingly, this VA treatment record is assigned great probative weight. The analysis of the four medical opinions results in two unfavorable VAX medical opinions that are each assigned no probative weight and two favorable VA treatment records that are assigned some probative weight and greater probative weight. The most probative medical evidence addressing nexus are the VA treatment records of January 2017 and February 2020. However, the analysis of the medical evidence relies on facts provided through lay evidence. In the supervisor’s 2012 statement, she states the Veteran often complains about knee and back pain and the Veteran is unable to perform his job duties as required in the past 3-4 years. The supervisor is competent to describe the Veteran’s job performance as the Veteran’s supervisor and what she observes first-hand. The supervisor’s statement is credible because it is consistent with the co-worker’s statement and the Veteran’s statements. Therefore, it is determined the supervisor’s lay testimony is assigned significant weight in support of Veteran’s claim. In the co-worker’s 2012 statement, he states the Veteran is unable to assist in transporting patients because the Veteran said he was experiencing back and knee pain. The co-worker is competent to describe what he observes first-hand. While the co-worker does not specify the timeframe of the Veteran’s inability to assist transporting patients began, the statement is credible because it corroborates the supervisor’s statement that the Veteran is unable to perform his job duties as required. Accordingly, it is determined the co-worker’s statement is assigned some probative weight. The evidence in the case file reveals the Veteran repeatedly complained about back pain while in service from November 1985 until July 1991. In the Veteran’s October 2012 statement in support of his claim, the Veteran said that he was injured in the military and favored his left knee, which put more pressure on his right knee. Due to his knees, he walked unnaturally and developed back pain. The Veteran believed he would be fine after knee surgery, but things got worse. He stated he has nearly constant back and knee pain and is unable to work. The job-related statements are corroborated by the Veteran’s supervisor. The Veteran is competent to describe how he walked and when he experienced back pain. Therefore, these Veteran statements have significant probative value. In July 2015, the Veteran stated that his “back went out” and he was unable to do much for about a week. This statement is consistent with the Veteran’s February 2020 hearing testimony that the last time his back went out, he was incapacitated for days and had to call a neighbor for help. The Veteran also testified that his back goes out about once a month annually. See February 2020 Hearing Transcript. These statements are credible and, along with the medical evidence of record, support the Veteran’s claim that the Veteran’s back disability is chronic. The most probative medical evidence, in addition to the lay evidence, establishes that the Veteran’s back disability is aggravated by his service-connected knee disability. Therefore, the third element for secondary service connection is met. In adjudicating this claim, the Board has considered the competent lay statements of record, afforded more evidentiary weight to the January 2017 and February 2020 VA treatment records, as well as the VA treatment records spanning the appellate period, which document continuity of symptomatology of the Veteran’s back pain. The Board finds by the preponderance of the evidence, the Veteran has a current back disability during the appellate period that is secondary to his service-connected bilateral knee disability. Having satisfied the regulatory and statutory requirements of 38 C.F.R. § 3.310, 38 U.S.C. §§ 1110, 1131, entitlement to service connection for a back disability to include as secondary to a service-connected bilateral knee disability is granted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Agarwal, 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.