Citation Nr: 21032958 Decision Date: 06/01/21 Archive Date: 06/01/21 DOCKET NO. 19-13 434 DATE: June 1, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine (low back disability), secondary to the service-connected cervical spine and bilateral knee disabilities, is GRANTED. Entitlement to a temporary total evaluation based on convalescence following lumbar laminectomy surgeries is DENIED. FINDINGS OF FACT 1. The preponderance of the evidence favors a finding that the Veteran's current low back disability is aggravated by the service-connected cervical spine and bilateral knee disabilities. 2. The Veteran's lumbar laminectomy surgeries pre-date her claim for service connection for a low back disability. The evidence does not reflect that the Veteran's lumbar laminectomy surgeries resulted in at least one month of convalescence; or severe post-operative residuals or the necessity for house confinement or continued use of a wheelchair or crutches; or immobilization by cast, after service connection was granted for a low back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to secondary service connection for a low back disability have been satisfied. 38 U.S.C. §§ 1101, 1131, 1133, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310 (2020). 2. The criteria for a temporary total disability evaluation following lumbar laminectomy surgeries have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.30 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1980 to April 2002. 1. Entitlement to service connection for degenerative arthritis of the lumbar spine (low back disability), secondary to the service-connected cervical spine and bilateral knee disabilities, is granted. On December 11, 2015, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated a claim for service connection for a low back disability. Service connection may 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 id; 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. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or aggravated by, a service-connected disease or injury. To prevail on the issue of secondary service connection, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease or injury, will be service-connected. The 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 the claim (in which case the claim is denied). Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b). In April 2016, correspondence from three physicians was associated with the claims file. Therein, all three physicians opined that, "it is as likely as not that the pain caused by (the Veteran's) service-connected Degenerative Disc Disease, Cervical Spine Status Post Cervical Fusion contributes to or aggravates her Back condition." Moreover, in April 2015, one physician opined that, "it is as likely as not that the pain caused by (the Veterans') service-connected Bilateral Knee condition contributes to or aggravates her Back condition." When determining service connection, all theories of entitlement, direct and secondary, must be considered if raised by the evidence of record, applying all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). The Board notes that the submission of the April 2015 physician's opinion raised the issue of whether the Veteran's current low back disability was aggravated by her service-connected bilateral knee disabilities and, therefore, a secondary service connection claim. In December 2018, the Veteran underwent a VA examination that addressed the nature and etiology of thoracolumbar spine disabilities. The VA examiner noted diagnoses for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine. The VA examiner opined that the current spinal diagnoses were less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness. The VA examiner remarked that, "Dr. (LW's) statements re: back condition and nexus dated 4/18/16 reflects on the pain caused by the veteran's SC cervical spine condition could contribute or aggravate her back condition. But it does not link the veteran's back condition to military service." In April 2019, the Veteran underwent a VA examination that addressed the nature and etiology of thoracolumbar spine disabilities. The VA examiner noted diagnoses for DDD and DJD of the lumbar spine. At that time, the Veteran relayed that lower back pain was aggravated by prolonged standing, sitting, and walking. The examiner opined that the Veteran's lumbar spine condition was less likely than not (less than 50 percent probability) proximately due to, or the result of, a service-connected disability. The examiner supplied the following rationale: "(o)n review of the private and government medical records following discharge from the military in 2002, the records are silent for the condition of lower back pain until April 2010. The veteran's LS spine condition is more likely explained by the physiologic changes in the LS spine associated with aging." In October 2019, the Board issued a decision, which denied the issues listed on the title page. In September 2020, the Court of Appeals for Veterans' Claims (Court) issued a Memorandum Decision. Thereby, the Court vacated the Board decision that denied service connection for a low back disability. The claim was remanded to the Board for additional consideration. The Board notes that the December 2018 and April 2019 VA examiner reported current diagnoses for lumbar spine DDD and DJD. The Board observes that the Veteran has been service connected for cervical spine and bilateral knee disabilities throughout the appellate period. Consequently, the first and second requisite elements for secondary service connection are substantiated. See Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 516-17. The Board notes that the December 2018 and April 2019 VA examiner supplied adverse opinions for the Veteran's claim for service connectiondirect and secondary. However, in both examination reports, the VA examiner failed to address whether the identified thoracolumbar spine diagnoses were aggravated beyond their natural course by the Veteran's service-connected cervical spine and bilateral knee disabilities. However, as noted above, three private physicians opined that the service-connected cervical spine disability aggravated the Veteran's thoracolumbar spine. Moreover, one private physician opined that the service-connected knee disabilities aggravated the Veteran's thoracolumbar spine. Consequently, the Board finds that the third requisite element for secondary service connection has been substantiated. See id. Ultimately, the preponderance of the evidence favors the Veteran's claim for secondary service connection for a low back disability. Accordingly, this service-connection claim must be granted. 2. Entitlement to a temporary total evaluation based on convalescence following lumbar laminectomy surgeries is denied. On December 11, 2015, the Veteran submitted a VA Form 21-526EZ. Therein, the Veteran initiated a claim for a temporary total evaluation following surgery on a low back disability. Under 38 C.F.R. § 4.30, a total rating will be assigned if treatment of a service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals or the necessity for house confinement or continued use of a wheelchair or crutches; or (3) immobilization by cast, without surgery, of one major joint or more. In September 2020, a Brief of the Appellee was associated with the claims file. Therein, the VA Secretary, through Counsel, noted that the issue of entitlement to service connection for a low back disability and the issue of entitlement to a temporary total evaluation based on the need for convalescence were inextricably intertwined. The Secretary conceded Court vacatur of both issues in order for the Board to supply an adequate reasons and bases for its decision(s). After thorough review of the Veteran's claims file, the Board notes that the Veteran underwent lumbar laminectomy surgeries on July 28, 2014 and February 9, 2015. These surgeries, however, occurred prior to the Veteran's December 11, 2015 service-connection claim for a thoracolumbar spine disability and, therefore, occurred outside the appellate period. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Board has considered whether the provisions of 38 C.F.R. § 4.30, which provides a 100 percent rating for surgery necessitating at least one month of convalescence, could be applicable. However, to the extent such regulation could apply to surgery conducted prior to the grant of service connection, there is no medical evidence indicating that the Veteran required convalescence from her lumbar laminectomy surgeries on or after the date she filed her claim for service connection. Ultimately, the Board finds that the preponderance of the evidence stands counter to the Veteran's claim for a temporary total evaluation based on convalescence following lumbar laminectomy surgeries. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107(b), regarding reasonable doubt, are not applicable. The Veteran's claim for a temporary total evaluation based on convalescence following lumbar laminectomy surgeries must be denied, because the preponderance of the evidence weighs against her claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.