On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina
THE ISSUE
Entitlement to service connection for a low back disability,
including secondary to an already service-connected left knee
disability.
REPRESENTATION
Appellant represented by: Sean A. Ravin, Attorney-at-Law
WITNESSES AT HEARING ON APPEAL
The appellant, his spouse, and C. B., MD.
ATTORNEY FOR THE BOARD
J. Fussell, Counsel
INTRODUCTION
The veteran had verified active duty from September 1970 to
September 1972 and from January 1991 to May 1991. He also
served in the reserves and had verified periods of active
duty for training (ACDUTRA) in July and August 1974, and in
July and August 1975.
This appeal to the Board of Veterans' Appeals (Board) arose
from an October 1997 rating decision of the Department of
Veterans (VA) Regional Office (RO) in Columbia, South
Carolina - which denied service connection for a low back
disability. But the RO granted service connection for a left
knee disability and assigned an initial 10 percent rating for
it. This is currently the veteran's only service-connected
disability.
A hearing was held at the RO in November 2000 before a
Veterans Law Judge (VLJ) of the Board. This type of hearing
is often called a travel Board hearing. A transcript of that
proceeding is of record.
The Board remanded the case to the RO in March 2001 for
further development and consideration. In July 2002 the
Board denied the claim for service connection for a low back
disability on both direct and secondary bases. That Board
decision was appealed to the United States Court of Appeals
for Veterans Claims (Court). And pursuant to a February 2003
Joint Motion, the Court entered an Order in February 2003
vacating that July 2002 Board decision and remanding the case
to the Board for compliance with the Veterans Claims
Assistance Act (VCAA).
In response, the Board remanded the case to the RO in
September 2003. And more recently, in March 2005, the
veteran, his spouse, and Craig Bush, M.D., testified at a
hearing at the Board's offices in Washington, DC, before the
undersigned VLJ. A complete transcript of the hearing is of
record.
The Board advanced this case on the docket pursuant to a
motion filed under 38 C.F.R. § 20.900 (2004).
During the March 2005 hearing, the veteran and his attorney
raised additional claims for a rating higher than 10 percent
for the service-connected left knee disability and for a
total disability rating based on individual unemployability
(TDIU). See page 2 of the hearing transcript. These
additional claims, however, have not been adjudicated by the
RO, much less denied and timely appealed to the Board, so
referral to the RO for initial development and consideration
is required since the Board does not currently have
jurisdiction to consider them. See 38 C.F.R. § 20.200
(2004).
FINDINGS OF FACT
Based on the medical and other evidence currently of record,
it is just as likely as not the veteran's current low back
disorder is attributable to functional impairment from his
service-connected left knee disability.
CONCLUSION OF LAW
Resolving all reasonable doubt in the veteran's favor, his
low back disorder is proximately due to and the result of his
service-connected left knee disability. 38 C.F.R. § 3.310(a)
(2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONThe Veterans Claims Assistance Act (VCAA)
The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002), became effective on November 9,
2000. Implementing regulations are codified at
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The
VCAA requires that VA notify the veteran of the type of
evidence needed to substantiate his claim, including insofar
as whose specific responsibility - his or VA's, it is for
obtaining the supporting evidence. The VCAA also requires
that VA assist the veteran in obtaining evidence necessary to
substantiate a claim, but is not required to provide
assistance if there is no reasonable possibility that it
would aid in substantiating the claim. Charles v. Principi,
16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16
Vet. App. 183, 186-87 (2002).
The Board has determined that the evidence and information
currently of record supports a complete grant of the benefit
requested. Therefore, no further notification and/or
development is required to comply with the VCAA or the
implementing regulations because it would be inconsequential.
So the Board will address the merits of the veteran's claim
for service connection for a low back disorder.
Legal Analysis
Disability that is proximately due to or the result of a
service-connected disorder shall be service-connected.
38 C.F.R. § 3.310(a) (2004). Service connection will also be
granted for aggravation of a nonservice-connected condition
by a service-connected disorder, although compensation is
limited to the degree of disability (and only that degree)
over and above the degree of disability existing prior to the
aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995).
In determining whether service connection is warranted for a
disability alleged, VA is responsible for considering
evidence both for and against the claim. If the evidence, as
a whole, supports the claim or is in relative equipoise
(i.e., about evenly balanced), then the veteran prevails.
Conversely, if the preponderance of the evidence is against
the claim, then it must be denied. See 38 C.F.R. § 3.102;
Gilbert v. Derwinski, 1 Vet. App. 49 (1990);
Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
The veteran's only service-connected disability is impairment
of the left knee, which currently has a 10 percent rating.
In a January 2004 report, Dr. Craig Bash stated that he had
reviewed the veteran's claims file for the purpose of
providing a medical opinion concerning his low back
disability. Dr. Bash pointed out this case was well within
his area of expertise. And after reviewing the record he
stated, in pertinent part, that:
It is my opinion based on the medical record, x-
ray findings, and the patient's statements that
this patient's spine is most likely secondary to
his longstanding service connected lower leg
disability and his accompanying abnormal gait,
which likely damaged his perivertebral spinal
ligaments due to undue and abnormal stress.
It is also my opinion that this patient's spine
disc disease presented with sciatica, nerve
damage, gait abnormalities and muscle atrophy
in 1997 ....
A great deal of confusion is present in the C-File
record concerning this patient's spine disease.
He currently has very severe advanced degenerative
spine disease with sciatica, antalgic gait, uses a
cane for ambulation, has muscle atrophy, and has
had multiple epidural steroid injections and a
herniated disc. The question presented in the
file is whether or not the spine disease is
related to his service connected abnormal knee and
not whether his currently [sic] spine disease was
caused by his knee surgery in 1996 ..... It is well
known that patient's [sic] with lower extremity
orthopedic problems often have abnormal gaits and
these patients often rapidly develop abnormal
painful spines. The abnormal forces which are
secondary to the gait problems places excessive
stresses across the vertebral column, which in
turn damages the ligaments. As Turik states in
the following, once ligaments are damaged then the
patient will experience advanced degenerative
arthritis:
"... At the onset, tearing of ligaments and
subluxation are manifest by local symptoms
of low back pain accentuated by the motion
which stretches the ligaments ...
Eventually, symptoms of localized
degenerative arthritis are superimposed ...
(Turik page 853)
It is my opinion that this patient's spine disease
is most likely secondary to this longstanding
service connected lower leg disability and his
accompanying abnormal gait, which likely damaged
his perivertebral spinal ligaments due to undue
and abnormal stress for the following reasons:
1. The patient entered service with
normal legs and spine.
2. The patient had a serious in service
leg injury which is
service connected.
3. The patient has had a longstanding
abnormal gait.
4. The patient now has advanced premature
degenerative
spine disease with sciatica, atrophy
and a herniated
disc.
5. The patient does not have another
plausible etiology
for his spine disease.
6. The literature supports an association
between advance
spine disease and a longstanding
abnormal gait.
7. The medical opinions stating that this
patients [sic]
spine is not related to his leg
surgery are non germane
[sic] to the case because this
patient's spine disease is
most likely secondary to his
longstanding abnormal
gait.
The veteran underwent a VA orthopedic examination in May
2004, also to obtain a medical opinion concerning the
etiology of his low back disability at issue. His claims
file was apparently available for review by the evaluating
physician inasmuch as the examiner related the veteran's
medical history. In doing so it was reported that, in
February 1997, about six months after his left knee surgery,
he experienced the sudden onset of severe low back pain, for
which he underwent an MRI that revealed bulging discs. After
a physical examination it was reported that:
Given the apparently routine nature of the left
knee arthroscopy, and the subsequent negative
history relative to that joint as well as
currently normal examination of that joint, it is,
in my mind, very unlikely that the left knee
condition would have led to significant lumbar
spine abnormalities. While it is known that
chronic gait abnormalities can lead to lumbar
spine injury and wear and tear, the length of time
involved here makes this unlikely in my opinion.
[The veteran's] surgery was in August of 1996 and
his onset of low back pain was six months later in
February 1997. Again, given the apparently
satisfactory outcome of his knee arthroscopic
surgery, it is in my opinion very unlikely that
the degree and duration of gait abnormality
subsequent to that surgery was sufficient to cause
the currently observed degenerative disk disease
in the lumbar spine. The question relating to the
unusual physical therapy exercises is a highly
speculative one. Given the veteran's description
of what he did during these exercises they do
sound a bit unusual, but not potential [sic]
traumatic enough to have caused severe lumbar
spine injury without first significantly
exacerbating the knee symptoms. It is my opinion,
therefore, that it is less likely than not that
his degenerative disk disease of the lumbar spine
was secondary to either the knee injury with gait
abnormalities or to the physical therapy used
subsequent to the knee surgery.
The May 2004 VA examiner further stated that he had reviewed
Dr. Bash's opinion, and that it appeared that Dr. Bash had
not examined the veteran to ascertain the severity of the
degenerative disc disease or, more importantly, of the knee.
Given an essentially normal examination of the knee and an
admission on the part of the veteran that he has had very
little symptomatology from the knee since his convalescence,
the May 2004 VA examiner felt justified in disagreeing with
Dr. Bash's January 2004 opinion.
An addendum to the May 2004 VA examination report indicates
that X-rays revealed three compartment osteoarthritis of the
left knee associated with a large Baker's cyst containing
multiple osteochondral fragments.
At the March 2005 hearing at the Board before the undersigned
VLJ, Dr. Bash testified that he had reviewed the veteran's
claims files on two occasions. See pages 11 and 12 of the
transcript. He said there was no evidence of a spinal
herniated nucleus pulposis (HNP) or back pain prior to the
veteran's left knee injury, and that he first developed back
pain after the left knee injury. See pages 14 and 15 of the
transcript. After Dr. Bash had rendered his January 2004
opinion and after the VA examination in May 2004, Dr. Bash
had personally examined the veteran in March 2005 - just a
day prior to the hearing. See Page 16 of the transcript.
That examination found many more positive clinical findings
as to the veteran's left knee than were found on the May 2004
VA examination. Page 17. Of particular note, the veteran's
left thigh was smaller in circumference than his right thigh
- so atrophied, and he had crepitus (a grinding, clicking
sensation) in his left knee. Page 20. Dr. Bash felt that it
was most likely the veteran's left knee pain and abnormal
gait (due to his service-connected left knee disability)
contributed to his current spinal pathology. Page 22. Dr.
Bash further stated that he felt the report of the May 2004
VA examination was inaccurate because it did not incorporate
the results of imaging and the veteran did not have a normal
left knee, as indicated in the May 2004 VA examination
report. Page 22. So in substance, said Dr. Bash, the fact
that the veteran does not have a normal left knee invalidates
the opinion to the contrary expressed by the May 2004 VA
examiner. Page 23.
The veteran testified that the May 2004 VA examination only
lasted about 30 to 35 minutes, but that, in comparison, Dr.
Bash's examination was for an hour or even an hour and 15
minutes. Page 26. The veteran's wife, a nurse, also
testified that he had no complaints of low back problems
prior to June 1996, but since that time has experienced an
abnormal gait. Page 32.
Also during the March 2005 hearing, another statement from
Dr. Bash was submitted into evidence (it is dated in March
2005), along with a waiver of initial consideration by the
RO. In the statement Dr. Bash reported that he had reviewed
the veteran's claims files for, in part, the purpose of
providing a medical opinion regarding the relationship
between his left knee and spinal disabilities. Dr. Bash
reiterated this case is well within his area of expertise
because he is a Board Certified Radiologist with subspecialty
training as a Neuroradiologist and has special knowledge in
the area of spine disease. He submitted a copy of his
curriculum vitae as proof of his qualifications. He further
stated that:
It is my opinion that certain medical opinions and
certain findings provided by Dr. Anderson are
clearly erroneous and have no basis in fact.
Further, [the] opinion [of the May 2004 VA
examiner] is inconsistent with my recent physical
exam finding of 1 March; the patient's medical
history; and the radiology imaging evidence as
I have outlined in the table below:
Dr. Bash went on to state:
In addition to the above discrepancies, I noted
that the patient could not squat, bend, stoop,
walk un-aided or lift from chair without
assistance. The patient also was using a left
knee brace, cane, lumbar spine TENS unit/wet-heat
device.
The report [of the May 2004 VA examiner] is, in my
opinion very inaccurate, which may be due to the
fact that he dictated his findings about a
different patient into this patient's record or
that he did not integrate his addendum or the
imaging finding or his physical findings with his
medical history and/or that his medical training
in preventive/occupational medicine provides him
with an inadequate background to interpret this
complicated multi-joint/spine set of problems
and/or that he did not reference any literature to
support his opinions.
In addition, his report contains several medical
logic disconnects. For example, he basically says
that this patient's left knee is normal and
without crepitus but he also states that the knee
has moderate three-compartmental osteoarthritis.
This is a disconnect. This osteoarthritis is the
imaging equivalent to the crepitus that I felt and
heard on my exam. He also states that the patient
has had very little symptomatology over the years
but he also states that the patient uses a cane
and crutches, takes large doss of pain
medications, has difficulty with bathroom duties
and had to use a bed pain [sic] recently. This is
another disconnect.
Overall, I do not find any basis for his opinion
concerning the severity of this patient's left
knee or why/why not this patient's knee problems
contributed to his spine problems.
In my opinion this patient has had a longstanding
knee problems [sic] since service, which required
surgery and subsequently developed osteoarthritis
as documented on both imaging and exam. The
patient has had left knee pain for years and an
abnormal gait that has been documented in his
records and he now uses a cane/crutches and knee
brace and he has left knee swelling. The patient
developed back pain several months (9 months to be
exact - please note that [the May 2004 VA
examiner] inaccurately stated 6 months) following
his knee surgery. In my opinion 9 months is a
long enough period of time to develop serious back
problems secondary to an abnormal gait and or
chronic knee pain. I have seen back pain develop
immediately after an acute injury and within
several days following chronic gait abnormalities.
It is my opinion that this patient's longstanding
gait problems have caused his lumbar spine to fail
with resultant sciatica ... I have reviewed his
current MRI images dated 2 Aug 2004 and I agree
with [the May 2004 VA examiner] that this patient
has multilevel lumbar disc disease. It is my
opinion that this patient's physical exam (back
pain-spasm as documented on attached ER reports
and sciatica), medical history and imaging
findings are all consistent with his multilevel
lumbar disc disease and that this disease is due
to his longstanding service induced left knee gait
problems as his medical record does not contain
another likely etiology.
In summary, I do not find any new information in
this patient's medical record that convinces me to
change my previous opinion. On the contrary, my
recent medical exam supports my previous opinions
that this patient has serious service induced left
knee and spine problems ....
It is the obligation of the Board to weigh any contrasting or
conflicting medical diagnoses or opinions. See Schoolman v.
West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet.
App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429,
433 (1995). This responsibility is more difficult when
medical opinions diverge. The Board cannot make its own
independent medical determination and there must be plausible
reasons for favoring one medical opinion over another. Evans
v. West, 12 Vet. App. 22, 31 (1998); see also Rucker v.
Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v.
Derwinski, 1 Vet. App. 171 (1991). Probative weight should
not be given to medical opinions when the veteran's records
were not reviewed. See Bielby v. Brown, 7 Vet. App. 260, 269
(1994) (medical opinion is of no evidentiary value when
doctor failed to review veteran's record before rendering an
opinion).
Here, though, both the May 2004 VA examiner and Dr. Bash have
reviewed the veteran's claims files. Nevertheless, it must
be noted that Dr. Bash reviewed the claims files on two
separate occasions - and, like the evaluating VA physician,
has now actually examined the veteran to complement this. So
there are legitimate reasons for accepting this private
physician's medical opinion over the VA examiner's medical
opinion to the contrary.
The private physician's opinions are much more focused by
addressing the impairment cause by the veteran abnormal gait.
Also, Dr. Bash cited more specific evidence in the record to
support his opinion. In fact, Dr. Bash noted inconsistencies
in the May 2004 VA examiner's opinion and, in particular, the
fact that the VA examiner indicated the veteran's left knee
was essentially normal; whereas, X-rays revealed three-
compartment osteoarthritis in this knee.
So resolving all reasonable doubt in the veteran's favor, it
is certainly just as likely as not that his current low back
disorder is a residual of the functional impairment
(especially his abnormal gait) stemming from his already
service-connected left knee disability. Thus, service
connection for a low back disorder, as secondary to his
service-connected left knee disability, is warranted.
ORDER
Service connection for a low back disability is granted.
