Citation Nr: 20043577 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 12-33 696A DATE: June 29, 2020 ORDER Resolving reasonable in the Veteran’s favor, service connection for a low back disorder secondary to service-connected bilateral knee disabilities is granted. FINDING OF FACT There is competent evidence that the Veteran’s low back disability is aggravated by his service-connected bilateral knee disabilities. CONCLUSION OF LAW The criteria for service connection for a low back disorder as secondary to service-connected bilateral knee disabilities 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 August 1969 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2014. In August 2017, the Board denied service connection for a low back disorder. In June 2018, the United States Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Remand (JMR) and vacated the Board’s decision. The Board remanded this appeal in March 2015 and March 2019. 1. Entitlement to service connection for a low back disorder secondary to service-connected bilateral knee disabilities is granted. The Veteran seeks service connection for a low back disability, to include as secondary to his service-connected knee disabilities. At the hearing before the undersigned, the Veteran testified that clinicians have told him that his low back disability is related to the way he has been walking, and specifically, the favoring of one leg. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.38 C.F.R. § 3.303 (2016). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Further, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. Establishing service connection on a secondary basis essentially requires evidence sufficient to show that a current disability exists and that the current disability was either caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. Service treatment records do not show any injury to the back, or any abnormality of the lumbar spine while in service. The separation examination in June 1970 also showed an examination of the spine was normal. There is no evidence of a diagnosed chronic low back disability, such as arthritis, within one year of service discharge. The Veteran has testified that his back pain started around 1976 or 1977. See April 2014 Hearing Transcript. SSA records show that the Veteran received emergency medical treatment in early August 1993 related to a back injured sustained at work several days prior. SSA and private medical records show continued complaints of back symptoms involving the lower extremities as well, and the Veteran underwent back surgeries in June 1994, December 1994, and in March 1995. Given that a low back disorder was not assessed in service, and given that the Veteran’s first complaint and documented treatment for back pain was many years after service, the Board finds that a lumbar spine disability did not have onset during service per 38 C.F.R. § 3.303 (a). In addition to arthritis not being shown in service, a continuity of symptomatology is neither asserted nor established so as to presume a nexus for arthritis, as a chronic disease under 38 C.F.R. § 3.303 (b). A presumption of service connection for arthritis, as a chronic disease, is also not warranted because the evidence does not establish that this disability manifested to a compensable degree within a year of separation from service in June 1970. Rather the objective medical evidence shows a diagnosis of arthritis beginning in 1993. See 38 C.F.R. §§ 3.307, 3.309(a). Nonetheless, the Board has also considered whether service connection is warranted under a theory of secondary service connection. The Veteran asserts that his back disability is related to his service-connected knee disabilities. In support of this assertion, the Veteran submitted a private medical opinion in November 2008 from a clinician at CHMG. In the letter, the clinician opined, “It is as likely as not that his spinal degenerative disease resulted from gait disturbances which were caused by the degenerative disease of his knees.” A negative nexus opinion on the theory of secondary service connection was previously provided by a VA examiner in April 2015. In the June 2018 JMR the parties stipulated that this opinion was inadequate. In October 2019, a VA examiner offered a persuasive opinion and underlying rationale as to whether the Veteran’s service-connected knee disabilities proximately caused or aggravated his low back disability. The examiner determined that the service-connected knee conditions less likely as not caused the Veteran’s low back conditions or, aggravate the Veteran’s low back condition beyond its natural progression. In support of his claim, the Veteran most recently submitted a January 2020 private opinion of Dr. McGlaston. Dr. McGlaston indicated that the gait abnormalities caused by the Veteran’s left knee replacement contributed to the exacerbation of his low back pain. Although Dr. McGlaston did not provide a very illuminating rationale for his opinion, the Board observes that his opinion is consistent with the prior nexus opinion provided in November 2008 from the clinician at CHMG. The Board notes further that treatment records reflects that the Veteran has undergone a number of knee surgeries and has had longstanding complaints of gait abnormalities and knee and back pain. After careful consideration of the pertinent lay and medical evidence in this case, the Board resolves all reasonable doubt regarding causal nexus in the Veteran’s favor. Service connection for a low back disability secondary to bilateral service-connected knee disabilities is granted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Vuong, 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.