INTERVERTEBRAL DISC SYNDROME

Summary

The Veteran, who served in the U.S. Armed Forces from January 1983 to August 1994, appeals the denial of service connection for a back disability, claimed as secondary to his service-connected left knee disability. The Board reviewed the evidence, including a January 2021 private medical opinion and an October 2020 VA examination. The VA examiner opined that the Veteran's degenerative joint disease of the lumbar spine was less likely than not caused or aggravated by the service-connected left knee disability, citing age and obesity as primary factors, and noting a lack of persuasive evidence for a causal link. Conversely, the private examiner concluded that the back disability was more likely than not caused by the Veteran's work as a firefighter and exacerbated by his service-connected left knee disability and resulting limp, referencing medical literature supporting this correlation and critiquing the VA examiner's sources. The Board found the evidence to be in approximate balance regarding the secondary service connection for the back disability. Applying the benefit of the doubt, the Board resolved the reasonable doubt in the Veteran's favor. Consequently, service connection for the back disability as secondary to the left knee disability was granted.

Rationale

Private medical opinion found back disability more likely than not caused/aggravated by service-connected left knee disability and limp.; VA examiner opined back disability less likely than not related to service-connected left knee disability, citing age and obesity.; Board found evidence in approximate balance, applying benefit of doubt to grant service connection.

Full Decision Text

Citation Nr: A25013105
Decision Date: 02/12/25	Archive Date: 02/12/25

DOCKET NO. 210129-138357
DATE: February 12, 2025

ISSUE

Entitlement to service connection for a back disability, claimed as secondary to the service-connected left knee disability.

ORDER

Entitlement to service connection for a back disability, claimed as secondary to the service-connected left knee disability, is GRANTED.

FINDING OF FACT

Resolving reasonable doubt in the Veteran's favor, the claimed back disability is at least as likely as not related to his service-connected left knee disability.

CONCLUSION OF LAW

The criteria for service connection for a back disability as secondary to his service-connected left knee disability are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102.

FACTUAL AND PROCEDURAL HISTORY

The Veteran served on active duty in the Armed Forces of the United States from January 1983 to August 1994. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 2020 by a Department of Veterans Affairs (VA) Regional Office.? 

In the January 2021, VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket.  Therefore, the Board may only consider the evidence of record at the time of the October 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182.?38 C.F.R. §20.303.?

If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision.?38 C.F.R. §§20.300, 20.303, 20.801.? 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this Decision. 

REASONS AND BASES FOR THE FINDING AND CONCLUSION

Although the Board has an obligation to provide adequate reasons and bases supporting this Decision, there is no requirement that every piece of evidence submitted be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Legal Criteria

The regulations adopted after, and because of, Allen v. Brown, 7 Vet. App. 439 (1995) (en banc),  provide that service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury.  38 C.F.R. § 3.310(a).  And that secondary service connection may be granted for aggravation of a disease or injury by a service-connected disability.  Id. § 3.310(b).  

However, during the pendency of the appeal, the law of secondary service connection changed materially.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) had recent occasion to consider matters relevant to the instant case and their holding illuminates the Board's way.

In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit held that: 

§ 1110 of Title 38 of the United States Code] plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability.  This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability.  Stated another way, § 1110 provides for compensation for a worsening of functionality
 Circuit (Federal Circuit) had recent occasion to consider matters relevant to the instant case and their holding illuminates the Board's way.

In Spicer v. McDonough, 61 F.4th 1360 (Fed. Cir. 2023), the Federal Circuit held that: 

§ 1110 of Title 38 of the United States Code] plainly requires compensation when a service-connected disease or injury is a but-for cause of a present-day disability.  This broad language applies to the natural progression of a condition not caused by a service-connected injury or disease, but that nonetheless would have been less severe were it not for the service-connected disability.  Stated another way, § 1110 provides for compensation for a worsening of functionality-whether through an inability to treat or a more direct, etiological cause.  Nothing in the statute limits § 1110 to onset or etiological causes of a worsening in functionality.  

Id. at 1364 (alterations added).  

The Federal Circuit concluded the causation standard "proximately due to" under section 3.310(b) of the regulations is inconsistent with section 1110 of the statute and, therefore "unlawful".  Consequently, for "aggravation of non-service-connected disabilities" it is enough to show that "but-for" the service-connected disability the incremental increase in severity of a nonservice-connected disease or injury would not have occurred.  Id. at 1364-66.

So, the question for the Board is whether the Veteran has a current disability that would have been less severe "but-for" a service-connected disability.

Analysis

The Veteran asserts that service connection for a back disability is warranted because the claimed disability was caused or aggravated by the service-connected left knee disability. 

Because 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.

The Veteran's DD Form 214 indicates that his primary specialty was fire protection craftsman (instructor).  The Veteran's service medical records do not document complaints of back pain, but show the Veteran received ongoing treatment for the left knee disability and complained of a limp.

In an October 2020 VA medical opinion, the examiner opined that the Veteran's degenerative joint disease of the lumbar spine was less likely than not caused or aggravated by the service-connected left knee disability. In support of this, the examiner highlighted medical treatment records noting "on and off" back pain in April 2016, and that the Veteran did not have back pain in October 2019. The examiner provided a definition of osteoarthritis, as well as statistics showing its prominence among certain age groups. Specifically, "by age 40, 90% of persons have radiographic evidence of osteoarthritic changes in weight-bearing joints, although they are asymptomatic and among persons under age 45, prevalence is greater in men . . . ."  Obesity was also indicated as a risk affiliated with chronic diseases, to include osteoarthritis. Medical literature was provided in support of the examiner's findings. 

Ultimately, the examiner indicated that it is less likely than not "that injuries such as a meniscal tear involving either the medial or lateral meniscus or any condition, e.g. chondromalacia of the patella etc., that caused a mild or moderate degree of limping over a relatively short period of time would have a major detrimental effect on the lumbar spine or opposite lower extremity."  In addition to noting that a causal relationship was not supported by medical literature, the examiner remarked that the Veteran had no obvious gait abnormality.  "There is no persuasive conclusive relevant medical evidence of ongoing orthopedic evaluations of the left knee to confirm recurrent subluxation or lateral instability."

The October 2020 VA examiner opined that the Veteran's back disability is instead more likely due to the Veteran's age. The rationale was "current medical literature supports the degenerative changes of the lumbar spine are more likely secondary to expected aging process as commonly seen at this veteran's age group . . . and that were likely accelerated and/or aggravated by overweight status (BMI>29)." 

In a January 2021 private medical opinion, Dr. V.A.C. concluded that the back disability is more likely than not caused by his work as a firefighter while on active duty and exacerbated by the left knee disability during active duty. Dr. V.A.C. found that the Veteran developed a back disability several years after his in-service knee surgery and after developing a chronic limp from his service-connected left knee injury. The examiner referenced the service medical records showing that the Veteran needed a walked with a limp in 1994 as a result of the knee disability.  Dr. V.A.C. implied that the left leg limp subsequently led to the need of the back brace and back problems.
/or aggravated by overweight status (BMI>29)." 

In a January 2021 private medical opinion, Dr. V.A.C. concluded that the back disability is more likely than not caused by his work as a firefighter while on active duty and exacerbated by the left knee disability during active duty. Dr. V.A.C. found that the Veteran developed a back disability several years after his in-service knee surgery and after developing a chronic limp from his service-connected left knee injury. The examiner referenced the service medical records showing that the Veteran needed a walked with a limp in 1994 as a result of the knee disability.  Dr. V.A.C. implied that the left leg limp subsequently led to the need of the back brace and back problems. The physician pointed out that individuals with leg length discrepancies have a noticeable limp similar to the Veteran. "It is been [sic] long established that limp inducing leg length discrepancy is both a biomechanical impediment and a predisposing factor for associated musculoskeletal disorder."  

Dr. V.A.C. highlighted that the October 2020 VA examiner did not provide complete citations in their medical opinion. She stated that the citations that were provided were from a literature search on PubMed or from the "Workplace Safety and Insurance Appeals Tribunal" which is composed by attorneys and not medical professionals. Regarding the negative opinion, Dr. V.A.C. highlighted that "The statement he quotes regarding the relationship between knee injuries and back pain is contrary to all of the scientific data available on the subject . . . . " The private physician also highlighted a correlation between firefighters, even during non-fire calls, experience repetitive stress that can lead to back pain and the development of degenerative joint disease.

The October 2020 VA examination shows the Veteran has a current disability of degenerative joint disease of the spine, and the January 2021 private examiner opined that it is at least as likely as not due to the service-connected left knee disability. The VA examiner also highlighted that the duration of time in which the Veteran experienced a limp would not have resulted in a back disability and was unsupported by medical literature. 

The January 2021 private examiner provided medical literature regarding a correlation between a walking with a limp and developing a back disability. The January 2021 private examiner also highlighted information regarding the Veteran's military occupational specialty and long-term effects that could include a back disability. Lastly, the January 2021 private examiner reconciled her findings with that of the October 2020 VA medical examiner by discrediting the sources used to reach the negative opinion and providing opposing findings that were supported by medical records and the literature. 

Upon review of the record, the Board finds the evidence to at least be in approximate balance as to whether the Veteran's current back disability is secondary to his service-connected left knee disability. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for a back disability is warranted, and the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.

 

 

STEVEN V. ADLER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. Cross, 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.