Citation Nr: 21003818 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 12-28 343 DATE: January 22, 2021 ORDER Entitlement to service connection for a low back disability, to include as secondary to a right knee disability is denied. FINDING OF FACT A low back disability was not manifested in service; arthritis of the low back was not manifested within a year following the Veteran’s discharge from active duty, and his current beck disability is not shown to be etiologically related to his service or to have been caused or aggravated by his service-connected right knee disability. CONCLUSION OF LAW Service connection for a low back disability, to include as secondary to a service-connected right knee disability, is not warranted. 38 U.S.C. §§ 1110, 1112, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from February 1963 to June 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision. In May 2015 a video conference hearing was held before the undersigned; a transcript is in the record. In September 2015, May 2018, and November 2019 this matter was remanded for additional development. Entitlement to service connection for a low back disability, to include as secondary to a right knee disability is denied. Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a claimed disability, there must be evidence of: (i) a present claimed disability; (ii) incurrence or aggravation of a disease or injury in service; (iii) and a causal relationship between the present disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303 (a). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time following separation from service (one year for arthritis). 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309(a). For chronic diseases listed in 38 C.F.R. § 3.309 (a), nexus to service may be established by showing continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303 (d); See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Secondary service connection is warranted for a disability that was caused or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection there must be evidence of (i) a current chronic disability (for which secondary service connection is sought); (ii) an already service-connected disability; and (iii) that the already service-connected disability (a) caused or (b) aggravated the disability for which service connection is sought. See Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). Competent medical evidence is necessary where the determinative question requires medical knowledge. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. Competent medical evidence may also include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). 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 claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Documents in the claims file show that the Veteran has established service connection for a now-post-total-knee-replacement (TKR) right knee disability, currently rated 30 percent. A June 1964 service treatment record (STR) notes the Veteran was seen for lower back pain. On June 1965 separation examination, his spine was normal on clinical evaluation. A January 2010 primary care record notes the Veteran was seen for a complaint of chronic low back pain radiating to the left leg. A March 2010 orthopedic consultation record notes the Veteran was seen for longstanding back pain which was described as constant and limiting standing and walking. A June 2012 primary care record notes the Veteran was seen with complaints of chronic low back pain. At the May 2015 videoconference hearing, the Veteran testified that he did not really have major problems with his back in service (he acknowledged that he was seen a couple times related to post-weightlifting complaints in service) and that his [current] back pain began ten to fifteen years prior to the hearing. See May 2015 Hearing transcript pg. 15. He testified that he was told his back condition was related to an altered gait relating to his right knee disability. On June 2017 back conditions DBQ, degenerative arthritis of the spine was diagnosed. The Veteran reported his back pain began approximately ten years prior to the examination. He felt he was hunched over because of leaning to the right due to his right leg. The examiner opined that it was less likely than not that the Veteran’s back disability was related to service. The examiner noted there was no chronicity to a low back condition from service, and opined that the Veteran’s low back disability was more likely related to aging and likely accelerated and/or aggravated by mechanical stress related to his occupation of boat builder (he was employed in such capacity for decades). The examiner also opined that it was less likely than not that the Veteran’s back disability was caused or aggravated by his service-connected right knee disability. The examiner explained that no medical provider documented a gait abnormality or leg length discrepancy due to right knee disability [the manners by which a knee disability would impact on the back] until after his right knee TKA. A June 2018 CT scan showed leftward curvature of the lumbar spine and associated severe degenerative changes. On February 2019 medical opinion, the examiner stated that the Veteran’s back condition was entirely separate and not at all related to his knee condition. On November 2020 back conditions DBQ degenerative arthritis of the spine was diagnosed. It was noted that a January 2010 X-Ray showed moderate DJD of the back. The examiner opined that it was less likely than not that the Veteran’s low back disability was due to or the result of the Veteran’s service-connected right knee disability. The examiner opined that the Veteran’s lumbar DJD was caused by chronic wear and tear due to age. The examiner explained that there was no evidence to support that the Veteran’s lumbar spine disability was aggravated beyond its natural progression by his right knee disability. The Veteran contends that his low back disability is secondary to his service-connected right knee disability. It is not in dispute that the Veteran has a low back disability. Degenerative arthritis is shown by the record. The Veteran’s STRs do not show a chronic low back disability. They show that he was seen with complaints of back pain (which he testified were related to weightlifting), which were acute and resolved without residuals. On service separation examination his spine was normal on clinical evaluation, and by his own accounts a chronic low back disability was not manifested until decades after service. He has reported his current low back disability became manifest approximately around 2000-2005 (by his hearing testimony 10 to 15 years prior to the 2015 Board hearing). As a chronic low back disability was not manifested in service or within a year following the Veteran’s discharge from active duty, service connection for a low back disability on the basis that such disability became manifest in service and persisted, or on a chronic disease presumptive basis (for arthritis of the lumbar spine) is not warranted. As post-service continuity of low back symptoms is also not shown, service connection under a continuity theory of entitlement (under 38 C.F.R. §3.303(b)) is also not warranted. Furthermore, there is no competent evidence suggesting, nor is it alleged, that the Veteran’s current low back disability is somehow otherwise directly related to service. Consequently, service connection for the disability under 38 C.F.R. § 3.303(d) is also not warranted. The theory of entitlement proffered is primarily one of secondary service connection, i.e. that the Veteran’s low back disability was caused and/or aggravated by his service-connected right knee disability. Whether a low back disability (such as the currently diagnosed degenerative arthritis) was indeed caused or aggravated by the Veteran’s post-TKR right knee disability is a medical question, beyond the realm of common knowledge and incapable of resolution by lay observation. It requires medical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Veteran testified at the video conference hearing that he believes his low back disability to be related to his service-connected right knee disability (alleging that his right knee caused him to “hunch over” because he was leaning to the right). He also indicated that he was told by a medical provider that his back disability is due to an altered gait due to his right knee disability. Notably, he is a layperson, and his own opinion (unsupported by citation to supporting medical treatise or opinion) has not probative value in this matter. He has not submitted (or identified for VA to obtain on his behalf) a medical opinion to the effect that his right knee disability caused or aggravated his low back disability. His account of what an unidentified medical provider purportedly told him regarding the etiology of his back disability is not competent medical evidence in the matter.t The competent (medical) evidence in the record that adequately addresses whether the Veteran’s low back disability was caused or aggravated by his service-connected right knee disability is against his claim. In June 2017 the consulting provider opined that that the Veteran’s low back disability is not secondary to his service-connected right knee disability, but instead is likely due to the aging process, likely accelerated or aggravated by mechanical stress due to his post-service occupation (as a boat builder for decades). The November 2020 examiner (on behalf of VA) also opined that the Veteran’s low back disability was caused by chronic wear and tear due to aging. The opinions provided by these examiners are probative evidence in this matter. They reflect familiarity with pertinent evidence in the record (including the Veteran’s post-service occupation and the lengthy postservice interval before his low back disability became manifest, and cite to medical principles, explaining that an altered gait (the anatomical process by which the service-connected right knee disability would impact on-cause or aggravate the current low back disability) was not shown in treatment records until after the TKR surgery, and the back disability pre-existed the surgery, and is not shown to have since progressed beyond its natural progression. The Board finds the opinions against the claim to cumulatively be probative evidence against this claim. The Veteran has not submitted any competent (medical) evidence in support of the claim and his asserted theory of entitlement. Considering the foregoing, the Board finds that the preponderance of the evidence is against this claim, and that the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.