06-28 147
06-28 147
| Board of Vet. App. | Sep 30, 2016Background
- Veteran served on active duty 1977–1981 and sought service connection for a low back disorder as secondary to service‑connected bilateral knee disabilities.
- Initial RO denial (Oct 2005); multiple remands by the Board (2008, 2010, 2015) and supplemental RO actions; Board denied claim in May 2013; Court granted Joint Motion for Remand in Sept 2014.
- Relevant evidence: VA treatment notes (including a July 2005 occupational health note), worker’s‑comp records, multiple VA examinations (2005, 2011, 2015, 2016), and a January 2013 VHA medical‑expert opinion.
- Veteran’s theory: knee arthritis prevents proper lifting mechanics, causing or aggravating lumbar degenerative disease.
- Multiple VA/VHA medical opinions (2011, 2013, 2015, 2016) conclude lumbar degenerative disease is age‑related and not caused or chronically worsened by the knee conditions; the 2005 physician opinion attributing symptom worsening to knee disease was given low probative weight.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Veteran’s low back disorder is service‑connected as secondary to service‑connected bilateral knee disabilities | Veteran: knee problems forced improper body mechanics (lifting), causing or aggravating lumbar disorder | VA: medical evidence shows lumbar degenerative disease is age‑related or due to other nonservice‑connected factors (work injury, lifting, MVA); no nexus to knee disabilities | Denied — preponderance of evidence against secondary service connection |
| Whether VA satisfied notice and duty to assist (VCAA/assistance) | Veteran (implicitly): procedural defects and incomplete development of aggravation issue | VA: provided required notice (June 2005, May 2006) and conducted adequate development, multiple examinations, and obtained VHA expert opinion | Held adequate — timing error cured, duty to assist satisfied; remand compliance found |
| Whether lay and general medical literature evidence establishes nexus | Veteran: lay reports and NINDS fact sheet support improper mechanics causing back disease | VA: lay observations and general articles are not competent to establish medical etiology | Held: lay evidence and article are low probative value for diagnosing/attributing degenerative disease |
| Whether VA medical opinions are adequate and persuasive | Veteran: earlier opinions failed to address aggravation adequately | VA: later VA/VHA opinions (2011, 2013, 2015, 2016) adequately addressed causation and aggravation | Held: VA/VHA medical opinions are adequate, persuasive, and preponderant against service connection |
Key Cases Cited
- Disabled American Veterans v. Secretary of Veterans Affairs, 419 F.3d 1317 (Fed. Cir. 2005) (Board may obtain medical opinions and must provide claimant a copy and opportunity to respond)
- Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009) (Board need not address unsupported theories of recovery not pleaded with evidence)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (elements required to establish service connection)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (criteria for probative value of lay evidence and competency issues)