Citation Nr: 20043833 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 09-34 758 DATE: June 30, 2020 ORDER Entitlement to a lumbar spine disorder as secondary to service-connected left knee patellofemoral degenerative joint disease and right patellofemoral degenerative joint disease, total knee replacement (bilateral knee disorder), is granted. FINDING OF FACT The Veteran’s lumbar spine disorder is secondary to his service-connected bilateral knee disorder. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disorder as secondary to service-connected bilateral knee disorder 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 May 1977 to April 1978 and from July 1978 to June 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before a Veterans Law Judge (VLJ) in June 2011. A hearing transcript is included in the file. When that VLJ retired from employment with the Board, a January 2019 letter was sent requesting clarification whether the Veteran wanted a new hearing. In February 2019, the Veteran responded and declined a new hearing. This matter was previously before the Board in March 2011, January 2012, November 2014, January 2017 and May 2019. The case has returned to the Board for adjudication. The Veteran also appealed decisions for increased ratings for service-connected right knee condition, service-connected left knee condition, and service-connected tinnitus, earlier effective dates for tinnitus and evaluation for right knee condition, as well as entitlement to service connection for bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, sleep apnea, right hip condition, left hip condition, psychiatric condition, and entitlement to special monthly compensation for aid and attendance. These issues have not returned to the Board for adjudication and therefore, will not be discussed in this decision. The Veteran contends that his back condition is a result of his active duty service, or in the alternative, secondary to his service-connected bilateral knee disorder. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a claimant 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When there is an approximate balance in the 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 claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The only mention of a back disability in the Veteran's service treatment records (STRs) is in September 1978. The radiographic report notes that there is a light curvature of the lumbar spine with convexity to the left. During the course of the appeal, the Veteran was granted service connection for his bilateral knees. The November 2014 Board decision remanded the issue of entitlement to service connection for the lower back, as the RO did not consider the secondary theory of entitlement for service connection for the Veteran’s back condition. The Veteran was afforded a VA examination in March 2017 and was diagnosed with lumbar spine degenerative joint disease. The VA examiner found that it was less likely than not that the Veteran’s lumbar spine condition was related to his military service as there was no evidence of treatment of a lumbar spine injury or condition in his STRs. His separation examination in April 1979 did not reveal any complaints of back pain or problems. The VA examiner also found that it is less likely than not that the Veteran’s lumbar spine condition is due to his knee disability, gait disturbance, or weight shifting. While the Veteran does have ongoing back pain related to his mild degenerative joint disease, she cannot attribute the condition solely to his bilateral knee disability due to lack of a clear associated nexus of findings. Additionally, the VA examiner stated that there is no evidence of permanent aggravation or aggravation beyond the natural progression of the Veteran’s lumbar spine condition by his knee condition. In May 2019, the Board remanded the issue again to obtain a medical opinion regarding whether the Veteran’s lumbar spine disability is at least as likely as not related to the finding of slight curvature of the lumbar spine with convexity to the left in September 1978. The Veteran was afforded another VA examination for his back condition in November 2019. The VA examiner opined that the lumbar spine disorder is less likely than not (less than 50 percent probability) incurred in or caused by the September 1978 slight curvature of the lumbar spine with convexity to the left during service. She reasoned that in service, an EMG was performed and showed a chronic C8 and T1 radiculopathy that affects the right upper extremity more than the left. The VA examiner stated that the problem with the Veteran’s cervical spine has nothing to do with the Veteran’s lumbar spine. Here, it appears that the VA examiner was providing an opinion for secondary service connection for the Veteran’s lumbar spine disability due to a cervical spine disability. As such, the RO obtained an addendum medical opinion in February 2020 from the same examiner who provided the November 2019 medical opinion. The RO requested that the VA examiner specifically address the September 1978 STR. She opined that it is less likely than not that the slight curvature in the lumbar spine is associated with convexity found in service in September 1978. She stated that it is not uncommon to have mild levoscoliosis and this usually does not result in pain syndromes and the Veteran’s musculoskeletal examination was normal revealing good muscular tone and strength and his neurological examination was also normal. With regard to the nexus of the Veteran's lumbar spine condition, in a June 2020 private medical opinion, Dr. S.E., opined that it is as likely as not that the Veteran’s bilateral knee patellofemoral joint disease was an initial cause of the low back condition and continues to play an aggravating role by complicating his prognosis of spinal recovery and pain management due to his limping gait. The physician noted that in January 2013, a VA treatment record indicated that the Veteran walks very slowly with a cane and limping on the right. The VA treatment note from September 2014 showed that he continued to ambulate with a limp. The VA examiner from October 2016 noted continued right knee pain radiating above and below the knee. The examiner stated the Veteran walks with a limp, makes constant use of a cane and cannot do prolonged standing or walking. Additionally, the physician found that low back pain is discussed throughout the Veteran’s medical treatment records and the Veteran has been granted Social Security Disability benefits due to disorders of the back. The Veteran reported at the interview that he had difficulty with ambulation for many years due to his knee pain and swelling and he continues to walk with a limp. He stated his back pain has continued to increase over the years to the point he has difficulty with walking and standing for more than a few minutes and sitting for greater than ten minutes is painful for him and he must constantly shift and move about in his seat and stand up and move often. Furthermore, the physician reasoned that medical research states, with limping, there is a shift of the body’s center of gravity towards the affected leg and this results in lateral bending of the trunk towards that side. When weight is transferred to the good leg, the repositioning of the center of gravity in the mid-line is in part due to the pull of the para-lumbar and abdominal muscles. The increased muscle pull increases the force transmitted across the lumbar discs, facet joints, hip, knee and ankle due to the mechanical leverage and in turn, does cause or aggravate degenerative chance of the disc and facet joints. To support his rationale, he submitted a medical discussion article regarding limping and back pain. The Board assigns great probative value to the independent medical review from Dr. S.E. as the physician indicated he review the entire claims file to include the previous examinations, VA treatment records, and conducted a telephonic interview with the Veteran to obtain information regarding his condition. There is no indication that the physician was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Indeed, the physician provided pertinent recitation of the record and fully supported his conclusions with specific citation to the record. The Board accords probative weight to such opinion, as the opinion provided a complete rationale, relying on and citing to the records reviewed, and offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). Weighing the probative values of these opinions, both for and against service connection, the Board finds that the evidence is at least in equipoise. As the record appears to be in relative equipoise on the question of whether the current back disorder was caused by the Veteran's service-connected bilateral knee disorder, all reasonable doubt is resolved in favor of the Veteran. In reaching this conclusion, the Board has reviewed the available lay statements, his medical history, and the available medical opinions. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a lumbar spine disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.