11-00 188
11-00 188
| Board of Vet. App. | Aug 31, 2017Background
- Veteran: active duty Mar 1966–Feb 1968; later Army Reserve and Texas Army National Guard service. Claim for low back service connection appealed from May 2007 RO denial. Multiple prior denials; Board remanded for development in 2014 and 2016; hearing held Mar 2013.
- Current diagnosis: degenerative joint disease (osteoarthritis) of the lumbar spine; underwent lumbar fusion (surgery in 2008).
- Service‑connected left knee conditions: chondromalacia patella, medial meniscectomy, status‑post total knee arthroplasty with instability and scar.
- Veteran asserts direct service connection based on an alleged fall while with the National Guard in the 1970s and continuity of symptoms, and alternatively asserts the lumbar condition is secondary to his service‑connected left knee (antalgic gait → spine degeneration).
- Medical evidence: VA exams (2001, 2007, 2014, 2017) and private orthopedic opinions (Dr. S.J.C.). VA examiners (2014, 2017) concluded lumbar disease is less likely than not caused or aggravated by the service‑connected left knee; private surgeon gave unsupported contrary opinions.
- Board found no documentation of back injury or symptoms in active duty service or within one year of discharge, found private opinions inadequately reasoned, credited VA examiners, and denied service connection (direct, presumptive, and secondary).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Direct service connection for low back | Fall during military/National Guard service caused back injury that later manifested | No evidence of back injury/symptoms in active duty or within 1 year after discharge; post‑service onset and age‑related findings explain condition | Denied — preponderance of evidence against service connection |
| Presumptive service connection (manifestation within 1 year) | Degenerative disease should be presumed if manifested within 1 year; continuity of symptoms supports claim | No evidence of back symptoms within one year; records show first back complaints in 1983 and normal discharge exam | Denied — no manifestation within one year; presumption rebutted |
| Secondary service connection (causation) | Left knee service‑connected pathology → antalgic gait → caused/aggravated lumbar degeneration (supported by treating surgeon) | VA examiners found no medical basis or peer‑reviewed support that knee pathology caused or aggravated lumbar OA; private opinion lacks adequate rationale | Denied — competent VA opinions outweigh unsupported private opinions |
| Secondary service connection (aggravation) | Knee condition aggravated natural progression of lumbar disease | VA examiner (2017) found aggravation by knee unlikely; no objective findings of gait‑related spinal deformity or peer‑reviewed support | Denied — preponderance of evidence against aggravation |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir.) (Board need not raise or search record for procedural arguments not raised by veteran)
- Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir.) (Scott applied to duty to assist arguments)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (elements for proving service connection)
- Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir.) (limits continuity‑of‑symptomatology theory to chronic diseases listed in 38 C.F.R. § 3.309)
- Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir.) (lay evidence may be competent to establish medical diagnosis in certain circumstances)
- Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir.) (framework for evaluating lay evidence of medical conditions)