Citation Nr: 21022042 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 16-15 195A DATE: April 14, 2021 ORDER Entitlement to service connection for bilateral knee osteoarthritis, as secondary to a service-connected lumbar spine disability, is granted. Entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to a service-connected lumbar spine disability, is granted. The appeal as to the claim of entitlement to service connection for a bilateral hip disability is dismissed. The appeal as to the claim of entitlement to service connection for a bilateral shoulder disability is dismissed The appeal as to the claim of entitlement to service connection for a bilateral ankle disability is dismissed The appeal as to the claim of entitlement to service connection for bilateral upper extremity radiculopathy is dismissed The appeal as to the claim of entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include major cognitive disorder and Alzheimer’s Disease, is dismissed. The appeal as to the claim of entitlement to service connection for a cervical spine disability is dismissed. The appeal as to the claim of entitlement to service connection for cardiovascular disease is dismissed. The appeal as to the claim of entitlement to service connection for a prostate disability is dismissed. The appeal as to the claim of entitlement to a disability rating in excess of 40 percent for a lumbar spine disability from March 11, 2013 to the present is dismissed. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran’s favor, his current bilateral knee osteoarthritis is related to his service-connected lumbar spine disability. 2. Resolving all reasonable doubt in the Veteran’s favor, his current bilateral lower extremity radiculopathy is related to degenerative disc disease (DDD) of the lumbar spine, which in turn is causally related to his service-connected lumbar spine disability. 3. In March 2021, prior to the promulgation of a decision in the appeal, the Board of Veterans’ Appeals (Board) received written notification from the Veteran, through his lawyer, of his intent to withdraw his appeal as to the claims of entitlement to service connection for bilateral hip, bilateral shoulder, bilateral ankle, bilateral upper extremity radiculopathy, acquired psychiatric disability, cervical spine, cardiovascular, prostate disability, and a rating in excess of 40 percent for lumbosacral spine. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral knee osteoarthritis, as secondary to a service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.310. 2. The criteria for service connection for bilateral lower extremity radiculopathy, as secondary to a service-connected lumbar spine disability, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303(a), 3.310. 3. The criteria for withdrawal of the appeal by the Veteran (or his authorized representative) as to his claims of entitlement to service connection for bilateral hip, shoulder, and ankle disabilities, bilateral upper extremity radiculopathy, an acquired psychiatric disorder other than PTSD, a cervical spine disability, cardiovascular disease, a prostate disability, and entitlement to a rating in excess of 40 percent for a lumbar spine disability from March 11, 2013 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1953 to August 1955; he had additional service in the U.S. Army Reserves. The appellant, the Veteran’s wife, was appointed his fiduciary for VA adjudication purposes in September 2016. These matters arose before the Board from rating decisions issued in June 2014, March 2015, and February 2016 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board denied the issues of entitlement to service connection for bilateral hip, bilateral shoulder, bilateral knee, and bilateral ankle disabilities, bilateral lower and upper extremity radiculopathy, and an acquired psychiatric disorder other than PTSD. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the parties agreed to a Joint Motion for Partial Remand (JMPR), vacating and remanding all seven of the issues listed above. In its December 2018 decision, the Board also remanded the issues of entitlement to service connection for a cervical spine disability, cardiovascular disease, a gastrointestinal disability, and a prostate disability, as well as entitlement to a rating in excess of 40 percent for a lumbar spine disability from March 11, 2013 and entitlement to a TDIU. The RO subsequently granted service connection for a gastrointestinal disability. The remaining issues are addressed below. The JMPR directed the Board to discuss whether the Veteran’s documented July 1981 injuries were incurred in “active service.” The term “active military, naval or air service” as defined within 38 U.S.C. § 101(24) includes any period of active duty for training during (ACDUTRA) which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. Here, the Veteran was granted service connection for a lumbar spine disability that occurred as a result of a July 1981 injury suffered during a period of ACDUTRA; the rating decision granting service connection conceded this injury was incurred in the line of duty. Accordingly, that period of ACDUTRA became active service for subsequently claimed disabilities. See Hill v. McDonald, 28 Vet. App. 243, 252 (2016). Service Connection 1. Entitlement to service connection for bilateral knee osteoarthritis, as secondary to a service-connected lumbar spine disability The Veteran contends he is entitled to service connection for bilateral knee osteoarthritis, secondary to his service-connected lumbar spine disability. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In addition to the provisions regarding direct service connection outlined above, service connection may also be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). Initially, the record shows the Veteran has been diagnosed with bilateral knee osteoarthritis during the appeal period. Thus, the current disability element of his service connection claim has been met. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); see also Holton, 557 F.3d at 1366. As for the nexus element, the Veteran submitted an extremely detailed medical opinion from a private doctor (dated in February 2021) which links the Veteran’s knee problems with his service-connected lumbar spine disability. The Board finds this opinion highly probative. The doctor cited medical literature and provided a thorough review of the Veteran’s medical history, noting the Veteran had long struggled with altered gait. The doctor concluded the Veteran’s lower back disability “clearly impacted the development of his knee disabilities.” Importantly, the doctor addressed negative opinions from VA examiners, which held the Veteran’s knee problems were “due to the normal aging process.” The doctor cited a “large body of medical evidence” which demonstrates the relationship between knee and back pain; as such, the doctor noted, the VA examiners’ findings could not be relied upon—particularly as they lacked detailed supporting rationales. In light of the above, the Board finds the weight of the evidence is in equipoise as to whether the Veteran’s current bilateral knee osteoarthritis is causally related to his service-connected lumbar spine disability. There is credible lay and medical evidence, including a detailed positive nexus opinion from a medical expert, that supports a nexus between his knee disability and his service-connected lumbar spine disability. See 38 C.F.R. § 3.310. Although the record does contain multiple negative nexus opinions from VA examiners, the private doctor addressed these opinions and provided evidence and fact-based analysis questioning their findings and supporting a finding of service connection. The Board finds the positive and negative evidence is evenly balanced in this case. Accordingly, service connection for bilateral knee osteoarthritis will be granted. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310. 2. Entitlement to service connection for bilateral lower extremity radiculopathy, as secondary to a service-connected lumbar spine disability As noted above, the Veteran was previously service connected for “lumbar strain and myositis” following an injury in the line of duty. He contends his current lower extremity radiculopathy is attributable to this disability. The Board reiterates that service connection may be established on a secondary basis for a disability which is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen, 7 Vet. App. 439. Initially, the record shows the Veteran has been diagnosed with bilateral lower extremity radiculopathy during the appeal period. Thus, the current disability element of his claim has been met. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303(a); see also Holton, 557 F.3d at 1366. As for the nexus element, as an initial matter, there appears to be no dispute that the Veteran’s radiculopathy is attributable to DDD and/or intervertebral disc syndrome (IVDS) of the lumbar spine. An October 2015 VA medical opinion reflects the examiner’s conclusion that the Veteran’s DDD/IVDS was not causally linked to the Veteran’s service-connected lumbar spine injury. However, the Veteran submitted an extremely detailed medical opinion from a private doctor (dated in February 2021) which links the Veteran’s lumbar spine DDD with his service-connected injury, and in turn links DDD to his radiculopathy. The Board finds this opinion highly probative. The doctor cited medical literature and provided a thorough review of the Veteran’s medical history, stating: “The medical literature clearly demonstrates that an initial low back injury, just like the one suffered by [the Veteran] in service in 1981, and one that would have been diagnosed as a lumbar strain or myositis at the time, is the proximate event which eventually leads to DDD and intervertebral syndrome.” The doctor continued: “DDD of the spine is the result of insults to the functional spinal unit such as mechanical trauma or metabolic injury.” Furthermore, the Veteran’s “1981 back strain likely resulted in an acute tear of the [anulus fibrosis] at the L3-L4 functional spinal unit” that began the spinal degenerative cascade leading to his eventual DDD and IVDS. (As noted in the JMPR, the Veteran reported pain radiating into his right leg shortly after his 1981 back injury, and was diagnosed with radiculopathy that same year.) Importantly, the doctor addressed negative opinions from VA examiners, which held the Veteran’s DDD was due to “normal” or “natural” aging processes. The doctor countered that the severity of the Veteran’s symptoms suggested his disability was not a normal progression but rather triggered by traumatic injury. As such, the doctor noted, the VA examiners’ findings could not be relied upon—particularly as they lacked detailed supporting rationales. In light of the above, the Board finds the weight of the evidence is in equipoise as to whether the Veteran’s current DDD/IVDS of the lumbar spine is causally related to his service-connected lumbar spine disability. There is credible lay and medical evidence, including a detailed positive nexus opinion from a medical expert, that supports a nexus between degenerative changes in the spine and his service-connected injury. Moreover, there is no dispute that the Veteran’s bilateral lower extremity radiculopathy is due to degenerative changes in his lumbar spine. See 38 C.F.R. § 3.310. Although the record does contain multiple negative nexus opinions from VA examiners, the private doctor addressed these opinions and provided evidence and fact-based analysis questioning their findings and supporting a finding of service connection. The Board finds the positive and negative evidence is evenly balanced in this case. Accordingly, service connection for bilateral lower extremity radiculopathy will be granted. See 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.310. 3. Entitlement to service connection for bilateral hip, bilateral shoulder, and bilateral ankle disabilities, bilateral upper extremity radiculopathy, an acquired psychiatric disability, a cervical spine disability, cardiovascular disease, a prostate disability, and entitlement to a rating in excess of 40 percent for a lumbar spine disability from March 11, 2013 The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. In this case, while the appeal was pending at the Board, the Veteran’s lawyer submitted a statement, dated in March 2021, clearly expressing his intent to withdraw his appeal as to his claims of entitlement to service connection for bilateral hip, shoulder, and ankle disabilities, bilateral upper extremity radiculopathy, an acquired psychiatric disorder other than PTSD, a cervical spine disability, cardiovascular disease, a prostate disability, and entitlement to a rating in excess of 40 percent for a lumbar spine disability from March 11, 2013. The Board finds this correspondence satisfies the requirements of 38 C.F.R. § 20.205, and consequently the Veteran has withdrawn his appeal as to these issues. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). Hence, there remain no new allegations of errors of fact or law for appellate consideration concerning these matters, and they are dismissed. REASONS FOR REMAND 4. Entitlement to a TDIU is remanded. In March 2021, the Veteran’s lawyer submitted a detailed brief explaining why the Veteran deserved service connection for bilateral knee osteoarthritis and bilateral lower extremity radiculopathy. The lawyer further stated that an award of TDIU was contingent on grants of service connection for those disabilities, and noted the TDIU issue was more appropriately deferred for argument at the RO level. The Board agrees the issue of entitlement to a TDIU must be remanded pending the assignment of initial ratings for the Veteran’s bilateral knee osteoarthritis and bilateral lower extremity radiculopathy. (Continued on the next page)   The matters are REMANDED for the following action: After the Board’s grants of service connection for bilateral knee osteoarthritis and bilateral lower extremity radiculopathy have been implemented, and initial ratings have been assigned, complete all indicated development with regard to the Veteran’s application for a TDIU (including, if necessary, a medical opinion to evaluate the overall functional impairment caused by the Veteran’s service-connected disabilities). Then, readjudicate the issue of entitlement to a TDIU in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ryan, 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.