Citation Nr: 21020784 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 13-09 114A DATE: April 8, 2021 ORDER Service connection for lumbar spine arthritis with intervertebral disc disease, status post spinal fusion L4, L5, is granted. REMANDED Service connection for a left knee disability is remanded. FINDING OF FACT The Veteran’s lumbar spine arthritis with intervertebral disc disease, status post spinal fusion L4, L5, is proximately due to his service-connected right knee disability.   CONCLUSION OF LAW Lumbar spine arthritis with intervertebral disc disease, status post spinal fusion L4, L5, is proximately due to service-connected disease or injury. 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 ot January 1972. He appeals a September 2010 rating decision. In January 2014, he appeared at a hearing before the undersigned Veterans Law Judge (VLJ). In April 2015, the Board issued a decision denying the Veteran’s claims. He appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In July 2016 the Court issued a decision vacating the April 2015 Board decision and remanded the case to the Board for further consideration. In July 2017 the Board remanded the matters to the Agency of Original Jurisdiction (AOJ) to obtain new medical opinions to determine if there is a nexus between the Veteran’s service-connected right knee disability and his left knee and low back disabilities and to clarify the qualifications of the writer of a March 2017 private nexus opinion. The matters returned to the Board in March 2020, and the Board issued another decision denying the Veteran’s claims, which he appealed to the Court. In October 2020 the Court granted a Joint Motion for Remand (JMR) vacating the March 2020 Board decision and remanding the case to the Board for further consideration consistent with the JMR. The matters return to the Board for further consideration. 1. Service connection for lumbar spine arthritis with intervertebral disc disease, status post spinal fusion L4, L5. The Veteran seeks service connection for a lumbar spine disability. His only contention is that his lumbar spine disability is secondary to his service-connected right knee disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110. In general, to establish a right to compensation for a present disability, a Veteran 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection is warranted on a secondary basis for disability which is proximately due to, aggravated by or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (b). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disease or injury; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Certain chronic diseases such as arthritis will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309 (a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). There have been multiple lumbar spine diagnoses during the period relevant to the appeal. The April 2018 VA examination reflects lumbar spine arthritis and intervertebral disc disease diagnosed in 2008, a spinal fusion of the L4 and L5 vertebrae in 2012. Lumbar spondylosis and arthritis of both sacroiliac joints was shown on 2018 x-rays provided for the examination. We note that the Veteran was service connected for internal debridement of the right knee from April 24, 1974 through March 15, 2011, with a separate rating for degenerative changes of the right knee in effect from July 31, 2008 to March 15, 2011. Effective March 15, 2011, both ratings were replaced by a single rating for total right knee arthroplasty. After reviewing the record, the Board concludes that service connection is warranted for lumbar spine arthritis with intervertebral disc disease, status post spinal fusion L4, L5, as secondary to the Veteran’s service-connected right knee disability. Initially, we note that the Veteran does not contend, and the record does not suggest, service connection on a direct or presumptive basis is warranted for either the low back disabilities. Service treatment records do not reflect any findings of a lower back disability, and the back was normal at the December 1971 separation examination. While the Veteran’s low back disorders include some which constitute chronic disease under 38 U.S.C. § 1101 (3) and 38 C.F.R. § 3.309 (a), such did not manifest in service or within a presumptive period, and continuity of symptomatology is not established. Rather, as observed by the VA examiner in April 2018, these are all first documented years after the Veteran’s period of service. The treatment record is consistent with this finding as well. 38 U.S.C. §§ 1101 (3), 1112, 1113, 1137; 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The preponderance of the evidence is against direct or presumptive service connection. Regarding the Veteran’s primary contention, the preponderance of the evidence is in favor of granting service connection for the Veteran’s low back disabilities as secondary to his service-connected right knee disorders. There are multiple VA opinions of record addressing whether the Veteran’s low back disabilities are proximately due to or the result of his service-connected right knee disorders. However, the United States Court of Appeals for Veterans Claims (the Court) has determined that each of the VA nexus opinions are inadequate. In a July 2016 memorandum decision, the Court determined that September 2010, October 2012, and May 2013 VA opinions did not adequately consider the Veteran’s lay statements. The Court vacated the Board’s prior April 2015 decision and remanded the claim for further proceedings. In our July 2017 remand, the Board acknowledges that all VA nexus opinions were inadequate in part because they did not consider the Veteran’s lay statements and remanded the claim to obtain new VA examinations and opinions. The new examinations and opinions were provided in April 2018, and the Board denied the claim in March 2020 decision. The Veteran appealed to the Court of Appeals. In October 2020 the Court granted a Joint Motion for Remand (JMR) vacating the March 2020 Board decision and remanding the case to the Board for further consideration consistent with the JMR. In relevant part, the parties to the JMR essentially determined that the April 2018 VA opinions were based on an inaccurate factual premise. The parties noted that the examiner failed to acknowledge that, prior to an arthroplasty in 2011, the Veteran’s right knee was service connected for internal derangement from April 24, 1974. The examiner also found that the Veteran’s gait issues began in 2013 but had failed to acknowledge documented gait issues in 2010. Given the above, the April 2018 VA nexus opinions rely an inaccurate factual premise and are inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal). However, there is an adequate opinion addressing whether the Veteran’s lumbar spine disorders are proximately due to or the result of his service-connected right knee disorders. The Veteran has submitted a March 2017 private “expert independent medical review” completed by Dr. D.M., an attorney and retired orthopedic surgeon. Dr. D.M. determined that the Veteran’s orthopedic problems fall under what is known as “chronic mechanical low back syndrome,” which he explained is an umbrella diagnosis that covers a multitude of abnormal pathologies including postural low back pain, facet joint syndrome, unbalanced gait, bulging discs, traumatic degenerative changes, and degenerative joint and disc diseases. Dr. D.M. also noted the Veteran’s specific low back diagnoses and relevant VA treatment records. Following a review of the Veteran’s claims file, medical literature, and an interview with the Veteran, Dr. D.M. determined that it was at least as likely as not that the Veteran’s service-connected right knee right knee pathology and symptoms resulted in the Veteran walking with an unbalanced gait for decades, and that it is at least as likely as not that the Veteran’s chronic mechanical low back syndrome was the direct result of his unbalanced gait, which resulted in abnormal forces being applied ot the lumbar spine and resulted in the present lumbar conditions. The Board previously requested clarification on Dr. D.M.’s qualifications as part of the July 2017 remand instructions, as it was initially unclear whether he was competent to draw medical conclusions. Dr. D.M. submitted a letter clarifying his current qualifications in September 2017. We also note that Dr. D.M.’s curriculum vitae shows he was a Navy flight surgeon from 1969 to 1972, then had privately practiced orthopedic medicine from 1975 to 1996. He was certified as an orthopedic surgeon in 1977. We find Dr. D.M. was competent to offer the March 2017 nexus opinion. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Most of the probative value of a medical opinion comes from its reasoning. “It is the factually accurate, fully articulated, sound reasoning for the conclusion . . . that contributes probative value to a medical opinion.” Id. at 304 Here, the Board finds the Dr. D.M.’s private opinion to be highly probative evidence as to whether the Veteran’s low back disorders are proximately due to his service-connected right knee disability. The Board notes that Dr. D.M. rendered the opinion after thoroughly reviewing the claims file and relevant medical records, and that the Veteran was interviewed as part of the opinions process. Dr. D.M. noted the Veteran’s pertinent history, cited relevant medical studies, and provided a reasoned analysis supporting his conclusion. Furthermore, Dr. D.M.’s opinion was based on an accurate recital of the Veteran’s history, including the Veteran’s lay statements and that he had been service connected for a right knee disability since 1974. Pertinently, there is no contrary, “adequate” negative nexus opinion. In sum, the only probative nexus opinion states that the Veteran’s low back disability, described by Dr. D.M. as a “chronic mechanical low back syndrome” and currently consisting of lumbar spine arthritis with intervertebral disc disease, status post spinal fusion L4, L5, is proximately due to his altered gait, which itself is proximately due to his service-connected right knee disability. Multiple VA nexus opinions attributed the Veteran’s low back pathology to aging alone, each opinion has been found deficient by the Board, the Court of Appeals, or both. Accordingly, service connection is granted for lumbar spine arthritis with intervertebral disc disease, status post spinal fusion L4, L5, as secondary to the Veteran’s service-connected right knee disability. 38 C.F.R. § 3.310 (a). To be clear, the grant of service connection is akin to repetitive trauma and mechanics, rather than a generalized of systemic process. (Code 5010 versus 5003.) REASONS FOR REMAND 1. Service connection for a left knee disability. The Veteran seeks service connection for a left knee disability. His only contention is that his left knee disability is secondary to his service-connected right knee disability. Unfortunately, another remand is required because the Board does not have an adequate record upon which to base a decision. Specifically, there are no adequate nexus opinions of record addressing whether the Veteran’s left knee disabilities are proximately due to, the result of, or aggravated by his service-connected right knee disability. There are multiple relevant opinions of record, but none are adequate. Private opinions from Dr. S. and Dr. D.P. support the theory that the Veteran’s left knee was aggravated by his right knee but do not identify a pre-aggravation baseline for the left knee, which is required to grant service connection under 38 C.F.R. § 3.310 (b). The March 2017 private independent medical review from Dr. D.M. does not contain an opinion for the left knee. Both the Court of Appeals and the Board have previously determined that the September 2010, October 2012, and May 2013 VA opinions were inadequate because they did not address the Veteran’s lay statements and did not address aggravation. As noted, the Board remanded the claim in July 2015 to obtain a new VA examination and opinion, which were provided in April 2018. The examiner determined it was less likely than not that Appellant’s left knee condition was related to his service-connected right knee disability because the left knee condition occurred prior to the development of right knee arthroplasty in 2011. The examiner also concluded that the left knee condition was not aggravated by his service-connected right knee disability, noting that the Veteran did not complain of gait issues until 2013. The Board denied the claim in March 2020 decision, and the Veteran again appealed to the Court of Appeals. In October 2020 the Court of Appeals granted a Joint Motion for Remand (JMR) vacating the March 2020 Board decision and remanding the case to the Board for further consideration consistent with the JMR. In relevant part, the parties to the JMR essentially determined that the April 2018 VA opinions were based on an inaccurate factual premise. The parties noted that the examiner failed to acknowledge that, prior to an arthroplasty in 2011, the Veteran’s right knee was service connected for internal derangement from April 24, 1974. The examiner also found that the Veteran’s gait issues began in 2013 but had failed to acknowledge documented gait issues in 2010. In light of the above, the Board concludes that the April 2018 VA nexus opinions are inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion based on an inaccurate factual premise has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal). When VA undertakes to obtain an opinion, it must ensure that the opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As such, the Board concludes that our July 2017 remand instructions have not been substantially complied with, and that another remand is required to obtain an adequate opinion s to whether the Veteran’s left knee disability is proximately due to, the result of, or aggravate by service connected disease or injury. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38. C.F.R. § 3.310. The matters are REMANDED for the following action: 1. Return the claims file to an examiner of appropriate expertise to issue an addendum medical opinion regarding the etiology of the Veteran’s left knee disability. The examiner must provide an opinion as to whether it is at least as likely as not that a left knee disability is (1) proximately due to or the result of service-connected disease or injury, or (2) aggravated by service-connected disease or injury. If a service-connected disease or injury aggravated the left knee disability, the examiner must identify the percentage of disability which is attributable to the aggravation. Review of the entire claims file is required. The examiner is notified that the Veteran has been service connected for the following right knee disabilities since April 1974: (1) internal derangement of the right knee was in effect from April 1974 to March 2011, (2) right knee degenerative changes was service-connected from July 2008 to March 2011, and (3) the current right knee arthroplasty has been service-connected since March 2011. The Veteran is competent to report symptoms, including left knee symptoms and altered gait. His reports must be considered along with the other evidence of record. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.