Citation Nr: 21025464 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-35 239A DATE: April 28, 2021 ORDER Entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right knee disability, is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disorder is not secondary to (caused or aggravated by) his service-connected right knee disability. 2. The Veteran’s lumbar spine disorder was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right knee disability, have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1975 to April 1977. This matter comes before the Board of Veterans’ Appeals (“Board”) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (“VA”) Regional Office (“RO”). In September 2017, the Veteran had a videoconference hearing before a Veterans Law Judge (“VLJ”). A transcript of that hearing is associated with the claims file. That VLJ is no longer with the Board. The Board notified the Veteran of this fact in a December 2018 letter and provided an opportunity for a new hearing. The record does not show an affirmative response from the Veteran regarding this matter, and assuming the Veteran did not want another hearing based on the December 2018 correspondence, the Board proceeded accordingly. The Board remanded this matter recently in February 2021 to obtain a new VA medical opinion on the nature and etiology of the Veteran’s lumbar spine disorder, to include as secondary to service-connected right knee disability. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board finds that the RO substantially complied with the directives set forth in the February 2021 remand, and medical opinion obtained in February 2021 is consistent with and responsive to the remand directives, and adequate for deciding the issue on appeal. See Stegall, 11 Vet. App. at 271; See also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board’s remand directives is required under Stegall). Entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right knee disability. The Veteran filed a claim for entitlement to service connection in August 2011 for lower back problems, to include as secondary to his service-connected right knee disability. The Veteran testified at the September 2017 Board’s hearing that in shifting his weight to his left knee to compensate for his right, he has caused damage to his lumbar spine. Additionally, his spouse testified that she had seen the Veteran fall several times due to his right knee disability that might have caused or aggravated his lumbar spine disorder. The Veteran also explained in a November 2018 statement that his altered gait due to his service-connected right knee disability, has caused back impairment or aggravated it. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. See 38 C.F.R. § 3.310. Secondary service connection requires: (1) a service-connected disability; (2) a nonservice-connected disability; and (3) evidence that the nonservice-connected disability is either (a) proximately due to or the result of the service-connected disability or (b) aggravated (increased in severity) by the service-connected disability and not due to the natural progress of the nonservice-connected disability. Id. In determining whether service connection is warranted for a disability, VA must determine 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990); 38 C.F.R. § 3.102. Since the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board’s adjudication will consider only entitlement to secondary service connection. Initially the Board finds that the Veteran was granted service connection for right knee disability in April 1977. Also, the Veteran established service connection for left knee and right ankle disabilities with effective dates August 2011 and November 2018 respectively. Thus, the question for the Board is whether the Veteran has a current lumbar spine disorder that is proximately due to or the result of; or was aggravated beyond its natural progress by service-connected disabilities, including right or left knee disabilities. The existence of a current disability of lumbar spine is not in question because during the March 2018 VA examination the Veteran was diagnosed with lumbosacral strain and degenerative arthritis of the spine. Regarding the nexus between a lumbar spine disorder and service-connected right knee disability, the Veteran underwent a VA examination in November 2011. The examiner opined that it was less likely than not that the lumbar spine disorder was related to the right knee disability and explained that the orthopedic literature did not support such an association. The examiner also noted that the right knee disorder had protected the lumbar spine and other weight bearing joints by greatly reducing the total activity level. In a November 2016 VA opinion, the clinician opined that the Veteran’s lumbar spine condition was less likely than not due to or aggravated beyond its natural progression by his service-connected right knee disorder, and instead it was likely due to weight gain or obesity. During the March 2018 VA examination, the examiner diagnosed the Veteran with lumbosacral strain and degenerative arthritis of the spine, and opined that the Veteran’s lumbar spine disorder was less likely than not proximately due to or aggravated beyond its natural progression by the service-connected right knee disability. The examiner explained that the medical literature does not support that the arthritis in one joint is the cause of arthritis in another joint. Furthermore, the examiner explained that the Veteran experienced back pain twenty-seven years after he was separated from service, and the lumbar spine arthritis was likely due to the normal aging process and obesity. After finding the March 2018 VA opinion inadequate, the Board remanded the matter in August 2020 for an addendum opinion. In a September 2020 VA addendum opinion, the examiner opined that the Veteran’s diagnosed lumbar strain and degenerative arthritis were less likely than not caused or aggravated by the service-connected right and left knee disabilities. Regarding aggravation, the examiner noted that although there could potentially be temporary increase in the Veteran’s back pain (exacerbation) possibly from altered gait (if he walks long distance with altered gait) or with knee flare-up ups or related falls, however, there are no evidence of injury on imaging (such as fracture) suggestive of a fall related injury. Furthermore, the increase in pain during such period of altered gait or falls (if fall occurs) is expected to be temporary and not resulting in permanent aggravation beyond the natural progression of the Veteran lumbar strain and degenerative arthritis of the lumbar spine, because the natural history of these two conditions is progression over time. However, the Board found the September 2020 VA medical opinion inadequate and remanded the matter again in February 2021 for an addendum opinion. The Board specifically directed the examiner to review the December 2017 and April 2019 VA knee examinations noting the falls due to knee flare-ups; and provide an opinion as to whether the Veteran’s altered gait and falls during knee flare-ups caused or aggravated his lumbar spine disorder. Consequently the RO obtained a VA medical opinion in February 2021, where the examiner opined that the lumbar spine disability was less likely than not proximately due to or the result of, or aggravated by service-connected disabilities, including bilateral knee disabilities or resulted altered gait or falls during knee flare-ups. The examiner indicated the he reviewed the Board’s remand and the December 2017 and April 2019 VA examination reports regarding knees; cited Oxford’s Textbook on Orthopedics and Trauma and Wheeless’ Textbook of Orthopedics (11/3/2015) and provided a rationale. The examiner explained that there is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis. Or shortening of the injured limb resulting in length discrepancy of more than 5cm, so that the individual’s gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. The examiner noted that the March 2018 VA examination demonstrated between 25 and 60 percent decrease in range of motion with 4/5 lower extremity strength and no evidence of radiculopathy as well as no use of assistive devices (outside of the brace). The examiner concluded that this falls within the projected natural history of the condition and does not represent aggravation beyond natural progression. The Board finds the above February 2021 opinion adequate and responsive to the February 2021 Board’s remand directives because the examiner reviewed the relevant evidence and addressed the Veteran’s altered gait and falls during knee flare-ups. The Board carefully reviewed the evidence of record, including VA treatment records; all VA examinations regarding knees from November 2011, December 2017, and April 2019; hip and thigh examination from March 2013; and lumbar spine examinations from November 2011, November 2016, and March 2018. However, the Board did not find any notation of muscle or nerve damage; or shortening of the left or right leg resulting in leg length discrepancy. The Board has considered the Veteran, his spouse, mother, cousin, daughters, and brother’s statements in support of the claim and acknowledges that they may sincerely believe that the Veteran’s diagnosed lumbar spine disorder is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disabilities, including left or right knee disabilities. However, in this case they are not competent to provide a nexus opinion regarding this issue. The issue is medically complex, and the Veteran has not demonstrated that he or his relatives have the medical education, training, or expertise to make such a conclusion. See Bostain v. West, 11 Vet. App. 124, 127 (1998) (finding that assertions, in the absence of evidence that a veteran has the expertise to render opinions about medical matters, are not probative). Hence, the Board gives more probative weight to the medical evidence, including the February 2021 VA medical opinion, and finds that the Veteran’s lumbar spine disorder is not proximately due to or aggravated by his service-connected left or right knee disabilities. Therefore, service connection is not warranted based on secondary service connection. As noted above the Veteran has been diagnosed with degenerative arthritis of the spine. The March 2018 VA examination noted the onset of degenerative arthritis of the spine in 2012. The Board notes that arthritis is enumerated as one of the chronic diseases under 38 C.F.R. § 3.309(a); and can also be analyzed for entitlement to presumptive service connection for a chronic disease. 38 C.F.R. § 3.309(a). If a Veteran has a current, chronic disability listed in 38 C.F.R. § 3.309(a), a nexus can be presumed if there is evidence of chronic disease manifested as such during active service; or chronic disease manifested to a compensable degree within a specified period after active service (usually 1 year); or if there is competent, credible, and persuasive evidence of continuity of symptomatology since active service. See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The competent and probative evidence of record does not demonstrate that the Veteran’s degenerative arthritis of the spine manifested to a compensable degree within one year of active duty service. The Veteran’s service and other treatment records do not indicate that the Veteran was diagnosed with degenerative arthritis during service or within one year of the service. As far as continuity of symptomatology is concerned, there are no symptoms of back pain in service or continually after the service. As noted by the VA examiner in March 2018, the Veteran’s degenerative arthritis of spine was diagnosed in 2012, which is more than 35 years after the separation from service. The careful review of the VA medical treatment records indicates the earliest complaints of back pain in the September 2002 treatment, where it was noted that the Veteran’s back pain started after lifting weights, which is 25 years after the separation from service. The Board does not find a continuity of symptomatology of back disorder since service; hence the chronic diseases presumption does not apply in this case under 38 C.F.R. § 3.309(a). After reviewing all the evidence of record and based on the above analysis, the Board concludes that, while the Veteran has a current disability of lumbar spine, however, the preponderance of the evidence is against the finding that the Veteran’s lumbar spine disorder is proximately due to or the result of, or aggravated beyond its natural progression by service-connected disabilities including left or right knee disabilities. 38 U.S.C. § 1131; Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. A preponderance of the evidence is against the claim, consequently entitlement to service connection for a lumbar spine disorder, to include as secondary to the service-connected right knee disability is hereby denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tariq, Nadeem, Associate Attorney 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.