Citation Nr: 21010621 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-19 276 DATE: February 25, 2021 ORDER Service connection for a low back disability, diagnosed as a lumbosacral strain with degenerative arthritis, as secondary to the service-connected knee disability, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s low back disorder is secondary to his service-connected knee disabilities. CONCLUSION OF LAW The criteria to establish entitlement to service connection for a low back disorder as secondary to the service-connected knee disabilities are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army Reserve and his service included a period of active duty for training (ACDUTRA) between January and May of 1995. This case came to the Board from a January 2013 decision of the Agency of Original Jurisdiction (AOJ). The Board remanded this issue for further development in July 2018 and, most recently, in July 2020. Service Connection for Low Back Disorder—Laws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, 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 preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Initially, the Board finds that the Veteran has a current low back disability, diagnosed as a lumbosacral strain and degenerative arthritis. See May 2019 VA spine examination report. Next, the Veteran has been awarded service connection for right knee chondromalacia and left knee patellofemoral syndrome. The Board further finds that the evidence is at least in equipoise as to whether the Veteran’s low back disorder is secondary (either caused or aggravated by) his service-connected bilateral knee disabilities. In a written statement, dated May 2010, the Veteran claimed that his service-connected right knee “gave out” causing an injury to his back. An April 2010 VA primary care note confirms the Veteran’s injury. Specifically, the Veteran presented to the VA clinic with complaints of back pain following a fall due to his right knee giving way. The Veteran indicated that he tried to catch himself and, in the process, twisted his left side of his back with resulting severe backpain and radiating pain down both thighs. The Veteran was diagnosed with suspect bilateral sciatica “sec” [secondary] to the recent fall. Subsequent VA treatment records show continued complaints of low back pain and an altered gait associated with knee pain. The evidence also includes a May 2019 examination report. The examiner explained that, in her opinion, it was less likely than not that either condition was caused by the service-connected right knee disability. To explain this opinion, the examiner wrote that, “A fall as the result of a knee injury that has contributed to back pain was not found in those records reviewed in [the electronic claims file].” The examiner also rejected the possibility that gait changes associated with the knee disability may have caused one of the back disabilities, either by gradually interfering with the normal motion of the back or by causing or contributing to the April 2010 injury: “The Veteran’s gait issues are not clearly documented in the medical records . . . and are not attributable to his knees or back.” Both of these quoted portions of the opinion are potentially undermined by earlier medical records. VA treatment records indicate that the Veteran “twisted the left side of his back with resultant severe left sided abdominal pain and back pain” in April 2010. The treating physician’s assessment was suspected bilateral sciatica secondary to fall on April 7, 2010 with severe back pain. Although the subsequent April 2010 CT scan of the back was normal, previous records from the month, contrary to the May 2019 opinion, do report a knee injury contributing to back pain. Much earlier records describe the Veteran as limping and walking with an antalgic gait in May 2003 and as ambulating with an antalgic gait in September 2008. These records, of course, undermine the examiner’s statement that there were no record documenting the “gait issues” associated with the service-connected right knee disability. A medical opinion may be inadequate when it relies on an inaccurate factual premise. Cf. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Because the May 2019 opinion relies on the inaccurate premise that none of the available medical records document a fall caused by the service-connected knee injury or an abnormal gait, it is inadequate to decide the claim. The more recent opinion in August 2020 on the issue of secondary service connection by way of aggravation indicates that the degenerative changes in multiple spinal segments – cervical and thoracolumbar – are the result of the natural aging process. Unfortunately, this addresses only one of the two lumbar spine diagnoses mentioned in the May 2019 examination report. As such, this opinion lacks probative value. Upon review of the evidence of record, the Board finds that the record is clear regarding the Veteran’s April 2010 injury (i. e., that the Veteran fell and injured his back as a result of his knee giving way). Moreover, the evidence demonstrates that the Veteran continued to have an altered gait as a result of his service-connected knee disabilities. The Board notes that in Ward v. Wilkie, the United States Court of Appeals for Veterans Claims held that, for secondary service connection, “aggravation” need not be permanent in nature. 31 Vet. App. 233, 241-42 (2019). For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds the criteria to establish service connection for a low back disorder as secondary to the service-connected knee disabilities are met. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The appeal is granted. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.