Citation Nr: 0004933 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 97-14 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a chronic acquired disorder of the right knee as secondary to service-connected degenerative joint disease (DJD) of the left knee with postoperative (PO) valgus osteotomy with total knee replacement. 2. Entitlement to service connection for a chronic acquired variously diagnosed back disorder as secondary to service- connected DJD of the left knee with PO valgus osteotomy with total knee replacement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Associate Counsel INTRODUCTION The veteran served on active duty from December 1972 to September 1979. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The RO denied the claims of entitlement to a rating in excess of 60 percent for DJD of the left knee with PO valgus osteotomy and total knee replacement, service connection for chronic acquired right knee and back disorders as secondary to service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement, a total disability rating for compensation purposes on the basis of individual unemployability (TDIU), and special monthly compensation by reason of being housebound. The veteran submitted a general notice of disagreement with the RO's November 1996 rating decision. After a statement of the case was issued, the veteran limited perfection of his appeal to the denials of service connection for back and right knee disorders as secondary to the service-connected disability of the left knee, and a TDIU. In March 1998 the RO granted entitlement to a TDIU. In November 1987, in response to the veteran's claim of service connection for an injury of the lumbar spine in service, the RO denied entitlement to service connection on a direct service incurrence basis for thoracic strain noted as the result of a motorcycle accident in service. The claims file does not appear to have a letter or record of notification to the veteran of the denial; as such the November 1987 determination would not become final. In any event, the veteran's current claim is for compensation for a chronic acquired variously diagnosed back disorder as secondary to the service-connected left knee disability. As there has been no prior denial of a disorder of the of the lumbar spine, the current adjudication is without regard to the prior denial of service connection for a disorder of the thoracic spine. At the time of the November 1987 rating decision the RO acknowledged the veteran's claim of service connection for residuals of an injury of the left little finger. The November 1987 rating decision includes the notation that a line of duty determination was required prior to consideration of the left little finger claim since the injury occurred as the result of a fight. Such a line of duty determination was never promulgated, nor was the claim for service connection for residuals of an injury of the left little finger addressed. As this issue has been neither procedurally prepared nor certified for appellate review, the Board is referring it to the RO for initial consideration and appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). In December 1997 the veteran submitted a claim of entitlement to service connection for a hip disorder as secondary to his service-connected left knee disability. This issue has been neither procedurally prepared nor certified for appellate review and is referred to the RO for initial consideration and appropriate action. Godfrey, supra. FINDINGS OF FACT 1. The claim of entitlement to service connection for a chronic acquired disorder of the right knee as secondary to service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. VA and non-VA competent medical opinion expresses a causal relationship between variously diagnosed back symptomatology and the service-connected left knee disability. CONCLUSIONS OF LAW 1. The claim for service connection for a chronic acquired disorder of the right knee as secondary to the service- connected DJD of the left knee with PO valgus osteotomy and total replacement is well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. A chronic acquired variously diagnosed back disorder is proximately due to or the result of the service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement on the basis of aggravation. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.310(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Review of the service medical records reveals that no pertinent abnormalities were noted on the report of the medical examination conducted in September 1977. Clinical evaluation of the spine and lower extremities was determined to be normal. The veteran was in a motorcycle accident in April 1978 wherein he complained of trauma to his right knee. The veteran was discharged from active duty as a result of his left knee disability. Service connection was granted for a left knee disability in July 1980. Reports of VA examinations conducted in April 1980, June 1982, July 1988, February 1990, August 1991, December 1993, and May 1994 failed to note any back or right knee disorders with the exception of genu valgum bilaterally. Private treatment records have been associated with the claims files. In July 1993, the veteran sought treatment for neck and back pain. It was noted he had been in a motor vehicle accident. The pertinent assessment was back strain. A separate July 1993 treatment record included a pertinent assessment of status post motor vehicle accident with muscle spasm. In November 1994, it was reported that the veteran had been involved in a motor vehicle accident with resulting neck and back pain and spasms. The pertinent assessment was acute neck and back strain. VA outpatient treatment and hospitalization records have been associated with the claims files. The records evidence numerous diagnoses of and treatment for a left knee disability including total left knee replacement. X-rays of the lumbar spine taken in May 1993 were interpreted as revealing a large bulging disk posteriorly at L4-5 with narrowing of neural canals bilaterally and contouring of the thecal sac anteriorly. A mild bulging disc posteriorly at the level of L5-S1 with slight narrowing of the right lateral recess due to bony encroachment and partial encroachment of the neural canal by disk material were also observed. In November 1993, the veteran sought treatment for lower back pain which began after doing yard work. The diagnostic impression was lower back strain. A November 1993 X-ray of the lumbosacral spine was interpreted as revealing mild levoscoliosis and no evidence of fracture or other significant abnormality. A second X-ray conducted in November 1993 was interpreted as revealing partial sacralization with narrowing of the lumbosacral joint space and exaggeration of the lumbosacral angle as well as no evidence of fracture. In December 1993, the veteran again sought treatment for low back pain with minimal radicular pain. No diagnosis was made. In July 1995, he complained, in pertinent part, of low back pain with occasional radiation. No diagnosis was made. In September 1995, the veteran complained of non-radiating back pain. The transcript of an October 1995 local RO hearing is of record. The veteran testified he was informed by VA medical professionals that his low back disorder was secondary to his left knee disability. The veteran further reported that prior to his left knee surgeries he never had any problems with his back but since the surgeries he developed problems. He testified his back symptomatology had increased in the preceding two years. The veteran also testified he had problems with his right knee. He reported that he supported most of his weight on the right leg as a result of his left knee disability. He testified that other than a car accident several years prior which injured his upper back, he had not had any traumatic injuries to either his right knee or his low back. In May 1996, a provisional diagnosis of mechanical low back pain was made. A separate treatment record dated in May 1996 noted the veteran had been complaining of back pain intermittently for seven months. He did not report any trauma to the back or any unusual activities. The assessment was mechanical low back pain. Another May 1996 clinical record included the notation that the veteran was status post total knee replacement with resulting orthopedic complaints of increased low back pain. The diagnostic impression was left lumbar spasm. Back pain was included as an assessment in September and December 1997. The report of a September 1996 VA joints examination is of record. It was noted the veteran reported that his right knee had become progressively more painful with increased swelling. The pertinent diagnosis was mild right knee osteoarthritis. The report of a September 1996 VA spinal cord examination has been associated with the claims files. The veteran complained at that time of an aching pain in his lower back which had been present for approximately eight months. The pain was reported to also radiate down the right leg. X-rays of the lumbar spine were referenced as revealing some mild degenerative changes and an otherwise normal back. The diagnosis was non-radicular mechanical low back pain. By letter dated in January 1997, AMH, M.D. reported he had been the veteran's personal physician since 1988. The physician noted that since approximately 1987, the veteran had been experiencing increasing pain in his lower back with some pain radiating to the right leg. The physician opined that the veteran's back pain was "probably resultant from [the veteran's] altered gait, as a result of his failed [left] knee surgeries." It was the physician's opinion that the veteran was permanently disabled due to severe left knee pain, knee deformity, obesity and low back pain. The transcript of a January 1998 local RO hearing has been associated with the claims files. The veteran testified that a Dr. D. from the Loma Linda VA Medical Center and also a Dr. B. had informed him that his right knee condition and lower back condition were related to the service-connected left knee disability. He reported that he had problems with his right knee and back beginning shortly after his first knee surgery in 1988. The veteran opined that his weight was not linked to his back and knee claims. An October 1997 Report of Operation shows a pertinent preoperative diagnosis of right knee degenerative joint disease, and a pertinent postoperative diagnosis of right knee scar over growth of the patella button was included. A VA outpatient treatment record dated in January 1998 includes the notation it was a well known fact that the veteran had been limping and "aggravating his low back [with] leg pain. He is aware of the favoring of his left knee and putting more stress on his right knee. He now has significant right knee [and] low back symptoms." It was further reported that the veteran was known to have a herniated disc in his back which was probably not service- connected as there was no specific injury noted. Criteria In order to obtain service connection, there must be both evidence of a disease or injury that was incurred in or aggravated by service, and a present disability which is attributable to such disease or injury. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (1999). Service connection may also be granted for any additional impairment of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). When service connection is claimed on a secondary basis, there must be evidence of a service-connected disability rather than disease or injury during service. See Reiber v. Brown, 7 Vet. App. 513 (1995). Also, there must be evidence which connects the disability at issue to the service-connected disability. Further, the evidence of a connection must be competent. An appellant's own conclusion, stated in support of his claim, that his present disability is secondary to his service-connected disability is not competent evidence as to the issue of medical causation. See Grivois v. Brown, 6 Vet. App. 136 (1994). On the question of medical causation, a competent opinion of a medical professional is required. See Grottveit v. Brown, 5 Vet. App. 91 (1993). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). I. Entitlement to service connection for a chronic acquired disorder of the right knee as secondary to service-connected DJD of the left knee with PO valgus osteotomy and total left knee replacement. Analysis The veteran has claimed entitlement to service connection for a right knee disorder on a secondary basis. He is not alleging that he injured his knee during active duty but rather maintains that his right knee disorder was caused by favoring his service-connected left knee. The Board finds the claim of entitlement to service connection for diagnosed osteoarthritis of the right knee as secondary to service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement is well grounded. The veteran was granted service connection for a left knee disability in July 1980. Associated with the claims files is a January 1998 clinical record wherein a competent medical examiner gave cognizance to the veteran's favoring his left knee and putting more stress on the right knee, and having right knee symptoms. The veteran has testified he was informed by a VA physician that his right knee disorder was due to his service-connected left knee disability. In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). There is of record competent evidence of a service-connected disability and competent evidence of a current disability. The Board finds that there is also evidence of record demonstrating a potential link between the current osteoarthritis of the right knee and the service-connected disability of the left knee. The veteran's testimony as to his being informed of such a link by a VA physician is not inherently incredible. It is not beyond the competence of the veteran to report what he was informed by his physician. This potential link is reinforced by the January 1998 clinical record which appears to find some connection between the right knee disorder and the fact that the veteran favored his left knee. Based on the above, the Board finds the claim of entitlement to service connection for a right knee disorder as secondary to a service-connected left knee disability is well grounded. The Board further finds, however, that additional development is required in order to effectively adjudicate the merits of this claim. This development is addressed in the remand portion of this decision. II. Entitlement to service connection for a chronic acquired variously diagnosed back disorder as secondary to service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement. Analysis The veteran has claimed entitlement to service connection for osteoarthritis of the lumbar area as secondary to his service connected disability of the left knee. He is not alleging that he injured his back during active duty, but rather maintains that his back disorder was caused by favoring his service-connected left knee. The Board finds that service connection is warranted for osteoarthritis of the lumbar area as secondary to the service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement. The evidence of record demonstrates that the veteran was granted service connection for a left knee disability in July 1980. There is competent evidence of record demonstrating the existence of a current back disorder. Finally, the Board finds the back disorder has been linked to the service- connected left knee disability by competent evidence of record. In January 1997, AMH, M.D. wrote that it was clear the veteran's back pain was "probably resultant" from an altered gait due to failed left knee surgeries. The link between back pain and an altered gait is reinforced by the January 1998 VA clinical record which includes the notation that it was a well known fact the veteran had been limping and aggravating his low back with leg pain. When read together, the Board finds these two pieces of evidence from competent medical professionals link back pain to the veteran's limping which was the result of his service- connected left knee disability. Thus there is of record evidence of a service-connected disability, evidence of a current back disorder and competent evidence of a link between the service-connected left knee disability and the currently existing back disorder warranting a grant of service connection. ORDER The claim of entitlement to service connection for a chronic acquired disorder of the right knee as secondary to service- connected DJD of the left knee with PO valgus osteotomy and total knee replacement is well grounded. The appeal to this extent is granted. Entitlement to service connection for a chronic acquired variously diagnosed back disorder as secondary to service- connected DJD of the left knee with PO valgus and total knee replacement is granted. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims ("the Court") for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. The veteran has claimed entitlement to a chronic acquired disorder of his right knee as secondary to his service- connected left knee disability. The Board has found the claim to be well grounded in view of competent medical evidence of record associating right knee symptomatology with stress on the right knee from the veteran's favoring his service-connected left knee, and the veteran's testimony regarding what a VA physician reportedly told him. The Board notes that while the veteran's allegations of what a VA physician reportedly informed him must be presumed true for purposes of well grounding the claim, it is also noted that a lay person's statement about what a physician told him or her, cannot constitute medical evidence of etiology or nexus that is generally necessary in order for a claim to be well grounded. The connection between what a physician said and the layman's account of what the physician purportedly said, filtered as it was through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute "medical" evidence. Robinette v. Brown, 8 Vet. App. 77 (1995). The January 1998 clinical record, while discussing right knee symptomatology, did not actually provide an opinion linking a right knee disorder to the service-connected left knee disability. The record also did not, however, rule out such a potential link. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination so that the evaluation of the claimed disability will be a fully informed one. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board is of the opinion that VA examination of the veteran's right knee disorder is required in order to ascertain the specific nature of any causal relationship between osteoarthritis of the right knee and the service- connected left knee disability. In light of the above, the claim is REMANDED for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all medical care providers, VA and non-VA, inpatient and outpatient, who have treated him for his right knee disorder. After obtaining any necessary authorization or medical releases, the RO must request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment records. 2. The RO should arrange for a VA orthopedic examination of the veteran by an orthopedic surgeon or an appropriate specialist in order to determine the nature of any causal relationship between any right knee disorder(s) found on examination and the service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement. The claims files and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination and the examination report must be annotated in this regard. Any further indicated special studies should be conducted. The examiner must be requested to express an opinion as to the nature of causal relationship between any right knee disorder(s) found on examination and the service-connected DJD of the left knee with PO valgus osteotomy and total knee replacement. If no direct causal relationship is found to exist, the examiner must be requested to express an opinion as to whether any right knee disorder(s) found on examination is or are aggravated by the service-connected disability of the left knee. If such aggravation is determined to exist, the examiner must address the following medical issues: (1) The baseline manifestations which are due to the effects of any right knee disorder(s) found on examination; (2) The increased manifestations which, in the examiner's opinion, are proximately due to service-connected disability of the left knee based on medical considerations; and (3) The medical considerations supporting an opinion that increased manifestations of any right knee disorder(s) present are proximately due to service-connected disability of the left knee. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to service connection for a chronic acquired right knee disorder as secondary to service-connected disability of the left knee. If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals