Citation Nr: 21021444 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 15-28 691 DATE: April 13, 2021 ORDER Service connection for a thoracolumbar spine disability, claimed as secondary to service-connected right knee disability is denied. REMANDED Service connection for a bilateral hip disability, claimed as secondary to service-connected right knee disability, is remanded. Service connection for a left knee disability, claimed as secondary to service-connected right knee disability, is remanded. FINDING OF FACT 1. The Veteran does not have a thoracolumbar spine disability that was caused by or related to service, to include as due to or as aggravated by his service-connected right knee disability. CONCLUSION OF LAW 1. The criteria for service connection for a thoracolumbar spine disability, claimed as secondary to service-connected right knee disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1982 to March 1988. This case is before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to service connection for a bilateral hip condition, a left knee condition, and a thoracolumbar spine condition. The Veteran timely appealed the August 2012 rating decision, and in February 2019 the Board remanded the case for further development and adjudicative action. Service Connection 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 military, naval, or air service. 38 U.S.C. § § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Additionally, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). VA has amended 38 C.F.R. § 3.310 to explicitly incorporate the holding in Allen, except that it will not concede aggravation unless a baseline for the claimed disability can be established with evidence created prior to any aggravation. 38 C.F.R. § 3.310(b). 1. Entitlement to service connection for a thoracolumbar spine disability, claimed as secondary to service-connected right knee disability The Veteran contends that he has a thoracolumbar spine (low back) disability that is related to service, including as secondary to his service-connected right knee disability. Service Treatment Records (STRs) are silent as to any in-service complaints, treatment, or diagnosis of a back condition. Private chiropractic treatment notes show that the Veteran began seeking treatment for low back pain in April 2006, after a motor vehicle accident. An April 2006 private chiropractor’s note shows that the Veteran complained of lower back pain, upper back pain, and neck pain, and “denie[d] having these problems prior to the accident.” A February 2012 VA examiner diagnosed a lumbar strain which is worsened during work/with lifting weight. The examiner opined that the low back disability was less likely than not due to or a result of the service-connected right knee disability (noted as right knee ligament strain). The opinion was based upon review of the chiropractic notes, which indicated that the Veteran’s low back condition was the result of lifting at work and in the home. The examiner noted no “reference to the right knee as being involved nor can there be a connection to periodic back pain and a resolved ligamentous knee strain.” See February 2012 VA Back Conditions Disability Benefits Questionnaire (DBQ), p. 42. In February 2020, the Veteran had another VA back conditions examination. The examiner conducted an in-person interview, reviewed the medical records and STRs, and stated “there is no objective finding in the STR[s] to support aggravation of the thoracolumbar condition by [the service-connected] right knee condition.” See February 2020 VA Medical Opinion DBQ, p. 4. As so, the examiner found it less likely as not that the back condition was aggravated beyond natural progression by the right knee condition. The examiner also discussed the Veteran’s current right knee symptoms, including knee pain rated at 6/10. The examiner discussed various functional impairments caused by the knee pain, including difficulty walking up and down stairs, hiking, and performing his duties as a school custodian. The examiner found that “[l]iterature supports awkward walking due to right knee condition as a cause of thoracolumbar condition. Based on this fact finding, the low back condition is at least as likely as not (50 percent or greater probability) proximately due to or the result of [the service-connected right knee disability].” A VA examination prepared another VA back conditions DBQ in September 2020. The examiner detailed a thorough history of the back condition, including a review of the February 2012 DBQ and private chiropractic records. The examiner noted diagnosed degenerative arthritis of the spine, with a February 2012 date of diagnosis. The examiner noted a 26-year career of working at a school district. The veteran stated that he had never had a specific back injury, but that his right knee injury causes pain in the low back. He denied radicular pain or weakness, but noted pain in the right lateral upper thigh. The examiner opined that the low back pain and arthritis was less likely than not (i) proximately due to or the result of, or (ii) aggravated beyond natural progression, by the service-connected right knee disability. The examiner reviewed the private chiropractor’s notes, including his denial of any prior back injury or problems. The examiner noted degenerative arthritis at T11-12 and in the SI joints, bilaterally. She noted spina bifida occulta, a congenital condition, which had not been aggravated. She noted a family history of arthritis and stiffness after prolonged sitting. She noted a career which involved manual labor. She noted that he does not walk with a limp, but that if he did have a limp related to the knee it would not result in arthritis of the spine or SI joints. She stated that “the gait would have to be severely altered to affect the spine in any manner, and would certainly not cause arthritis in the spine. He is obese, and obesity contributes to osteoarthritis.” Moreover, the arthritis was “mild” in 2012, and if it had progressed since then any such progression would be typical of the condition due to the passage of time and age. In sum, the evidence does not show—nor does the Veteran contend—that he has a low back condition which began in or was otherwise incurred during his active duty. Rather, the evidence shows that he first complained of a back condition after an April 2006 motor vehicle accident—nearly twenty years after his separation from service. Therefore, service connection for a thoracolumbar spine disability on a direct basis is not warranted. However, service connection may still be warranted on a secondary basis, if the record shows that the Veteran has a thoracolumbar spine disability which was either caused or aggravated by a service-connected disability. As set out above, the Veteran contends that his back disability is related to his service-connected right knee disability. On that issue, the record contains three opinions: those of the February 2012, February 2020, and September 2020 VA examiners. First, the February 2012 VA examiner only opined as to whether the Veteran had a low back condition that was due to the right knee condition (and did not address the issue of aggravation). The examiner discussed how the records showed the low back condition was related to lifting at work and at home, and was conducted following an in-person interview as well as review of the STRs and post-service medical records. For those reasons, the opinion carries significant probative value concerning whether the low back disability was caused by the right knee disability. Second, the February 2020 VA examiner’s opinion that the right knee condition was less likely than not aggravated by the right knee condition was formed following a records review and an in-person interview. The examiner specifically cited the STRs as not supporting a finding that the back was aggravated by the right knee condition. However, the Veteran’s contention is not that his back condition was aggravated in service, but rather that since he injured his back in the April 2006 motor vehicle accident, the right knee disability has aggravated the back. For that reason, the February 2020 VA examiner’s opinion on whether the low back disability has been aggravated by the right knee disability carries little probative value on that issue. The February 2020 examiner also opined in favor of the right knee disability being a “cause of” the low back condition. The opinion was formed following a file review and in-person interview. The examiner consulted the relevant medical literature, and formed the opinion in light thereof. However, the examiner did not address the specific medical evidence which indicated that the low back pain began after the April 2006 motor vehicle accident. While the examiner cited to literature which may very well implicate a link between low back pain and knee conditions, the Veteran’s unique disability picture includes specific evidence as to the onset of the disability, which the examiner did not address. Because the examiner failed to adequately address the evidence concerning the April 2006 motor vehicle accident and ensuing onset of back pain which, per the Veteran’s admission, did not exist prior to the accident, the opinion carries little probative value in that regard. Third, the September 2020 VA examiner provided the same rationale in finding that the low back condition was neither due to, nor aggravated by, the right knee condition. The opinion is clearly worded and demonstrates that the examiner conducted a thorough review of the medical evidence and considered the Veteran’s unique disability picture in forming the opinion. Moreover, the examiner considered the Veteran’s post-service employment in manual labor which involved lifting heavy weights, and noted that the Veteran did not walk with a limp—and, if he did, it would nonetheless not result in arthritis of the spine or the SI joints. Additionally, the left knee would have to “severely alter[]” the Veteran’s gait to affect the spine. In light of the examiner’s detailed review of the record and her clearly worded rationale, the opinion carries substantial probative weight. In sum, on the issue of whether the low back condition was caused by the right knee disability, the record contains (i) the February 2012 and September 2020 VA examiners’ probative opinions against a link between the two and (ii) the February 2020 examiner’s opinion in favor of a finding that the right knee disability was “a cause of” the low back condition. In light of the reasons set out above, the Board assigns greater probative weight to the February 2012 and September 2020 VA examiners’ opinions. Therefore, the weight of the evidence reflects that the low back disability was less likely than not due to or the result of the service-connected right knee disability. Then, on the issue of whether the low back disability was aggravated by the right knee condition, the only opinions were provided by the February 2020 and September 2020 VA examiners. While the February 2020 examiner’s opinion carries little probative value, as set out below, the September 2020 examiner’s opinion is sufficiently probative to warrant a finding that the low back condition was less likely than not aggravated beyond natural progression by the service-connected right knee disability. Without any evidence to dispute that examiner’s finding, the weight of the evidence is against finding that the low back disability was aggravated beyond natural progression by the service-connected right knee disability. In light of the foregoing, the weight of the evidence is against finding that service connection for a thoracolumbar spine disability is warranted either (i) on a direct basis or (ii) on a secondary basis, as caused by or aggravated by the service-connected right knee disability. There is no reasonable doubt to resolve in the Veteran’s favor, and as a result, the claim must be denied. REASONS FOR REMAND 2. Entitlement to service connection for a left knee disability, claimed as secondary to service-connected right knee disability The Veteran contends that he has a left knee disability that is related to service, to include as secondary to his service-connected right knee disability. On that issue, the record contains medical opinions furnished by a VA examiner with whom the Veteran met in February 2020. The February 2020 VA examiner provided conflicting opinions in which he found that the Veteran does not have a left knee disability; but, also that “overuse of the left hip due to sparing of the right as a cause of left knee condition . . . [therefore,] the claimed condition is at least as likely as not . . . proximately due to or the result of the” service-connected right knee disability. The language of the second opinion is unclear, but a reasonable interpretation is that the examiner intended to discuss a link between the service-connected right knee and the left knee, linked together by the hips. In doing so, the examiner raises the possibility of a link from the left hip to the right knee. The record also contains an opinion from a September 2020 VA examiner. That examiner conducted an in-person examination and a file review, which included the DBQs prepared by the February 2020 VA examiner. The September 2020 VA examiner’s DBQ concerning the left knee disability contains a note indicating that she “did not find the opinion regarding the right knee.” As she only cited the February 2020 examiner’s first opinion (finding that there is no left knee disability), her language reflects that she was unable to review the other opinion in which he linked the overuse of the left hip to the right knee disability, and then to the left knee disability. A new opinion is necessary for two reasons. First, to clarify whether the Veteran has a left knee disability, since the aforementioned DBQs are unclear. Then, if the Veteran does have a left knee disability, an opinion must be obtained to reconcile the February 2020 examiner’s unclear opinion, which seems to raise the possibility that the Veteran has a left knee disability which is aggravated by the service-connected right knee disability; and his finding of no left knee disability. 3. Entitlement to service connection for a bilateral hip disability, claimed as secondary to service-connected right knee disability The Veteran contends that he has a bilateral hip disability that is related to service, to include as secondary to his service-connected right knee disability. As noted above, the February 2020 examiner appeared to suggest that the right knee caused “overuse of the left hip.” The September 2020 VA examiner’s opinion also addressed whether the Veteran has a hip disability that is due to, the result of, or aggravated by the service-connected right knee disability. However, in light of the February 2020 examiner’s opinion which appears to suggest a link between the right hip to the left hip, and from the left hip to the left knee, the claim for service connection for a bilateral hip disability is intertwined with the issue of service connection for a left knee disability. Specifically, the outcome of the claim for service connection for a bilateral hip disability may depend on the outcome of the claim for service connection for a left knee disability, because if service connection for the left knee disability were established, a link between the left knee and the hips may be implicated. For that reason, the claim for service connection for a bilateral hip disability is also remanded, as it is inextricably intertwined with the claim for service connection for a left knee disability. The matters are REMANDED for the following action: 1. Schedule an examination with a VA orthopedist, if possible, to identify the nature and etiology of all left knee disabilities, if any. Then, the examiner should first opine as to whether it is at least as likely as not (50 percent or greater probability) that any left knee disability has been caused or aggravated beyond its normal course of progression by the right knee disability. Next, the examiner should identify all hip disabilities, and opine as to whether any hip disability is at least as likely as not (a 50 percent probability or greater) either caused or aggravated by the right knee disability. Third, if the examiner finds that any hip disability is caused or aggravated by the right knee disability, the examiner should opine as whether it is at least as likely as not (a 50 percent probability or greater) that any left knee disability is caused or aggravated by the hip disability. In providing these opinions, the examiner should address the February 2020 VA examiner’s opinion which appears to suggest that overuse of one hip, necessary because of the right knee disability, has resulted in a left knee disability. The entire claims file, including a copy of this Remand, should be made available to and reviewed by the examiner. All opinions formed and conclusions drawn should be supported by a thorough rationale which addresses the (i) medical evidence, (ii) the February 2012, February 2020, and September 2020 VA examiners’ opinions, and (iii) any relevant lay statements from the Veteran or otherwise. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. KAYS HUKILL 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.