Veteranclaims’s Blog

March 23, 2020

Single Judge Application; disability was aggravated or worsened by serviceconnected disability[ies]; Allen, 7 Vet.App. at 449 (where an examiner noted “no etiological relationship” between a service-connected and non-service-connected disability, it was “a big stretch of the English language” to construe the phrase as encompassing aggravation);

Filed under: Uncategorized — veteranclaims @ 11:14 pm

“As discussed, the August 2013 VA examiner found that the appellant’s back disability “is not caused by or related to her [service-connected] chondromalacia bilateral knees, and is more likely than not due to natural progression of aging and elevated BMI.” R. at 2695-96. The examiner did not address whether the appellant’s back disability was aggravated or worsened by her serviceconnected knee disabilities. In this regard, the conclusion reached by the examiner still does not adequately address the question whether the appellant’s back disability is more severe than it should be because of the symptoms attributed to her bilateral knee disability. See Allen, 7 Vet.App. at 449 (where an examiner noted “no etiological relationship” between a service-connected and non-service-connected disability, it was “a big stretch of the English language” to construe the
phrase as encompassing aggravation). Accordingly, the Court concludes that the Board clearly erred in relying on the August 2013 examination report when it denied service connection for the appellant’s back disability on a secondary basis.

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 19-0807
THERESA A. LOVE, APPELLANT,
V.
ROBERT L. WILKIE,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before PIETSCH, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
PIETSCH, Judge: Appellant Theresa A. Love appeals a March 30, 2018, Board of
Veterans’ Appeals (Board) decision denying service connection for a back disorder. Record (R.)
at 2-10. This appeal is timely, and the Court has jurisdiction to review the Board’s decision
pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See
Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will
vacate the Board’s decision and remand the matter for further proceedings consistent with this
decision.
I. BACKGROUND
The appellant served in the U.S. Air Force from December 1979 to August 1982. R. at

  1. She applied for service connection for a back disability, to include as secondary to her
    service-connected knee disorder, in April 2012. R. at 2955-56.
    The appellant was afforded a VA examination for her spine condition in August 2013,
    during which she described her symptoms and asserted that she was seeking service connection
    for a back disability as secondary to her service-connected chondromalacia. R. at 2674-75. She
    asserted that on a scale of 1 to 10 (with 1 being the lowest level of pain and 10 the highest) her
    pain level was at a 10. Id. Based on the evaluation, the VA examiner diagnosed the appellant with
    2
    degenerative disk disease (DDD) of the lumbar spine, R. at 2674, opining that the back disability
    is less likely than not proximately due to or the result of her service-connected knee disability. R.
    at 2695. In reaching this determination, she explained that chondromalacia patella “is
    inflammation of the underside of the patella of the knee” and “[t]he preponderance of medical
    evidence and expertise does not support disability in one joint causing associated disability in

[adjacent]

or contralateral joint in the absen[c]e of inflammatory arthritides and/or ankyloses.”
According to the examiner, the appellant’s DDD of the lumbar spine is neither caused by nor
related to her service-connected chondromalacia of the knees “and is more likely than not due to
natural progression of aging and elevated BMI.” Id.
In a September 2013 VA addendum opinion, the examiner found the appellant’s DDD of
the lumbar spine less likely than not incurred in or caused by the claimed in-service injury, event,
or illness. R. at 2642-43. In the rationale section, the examiner listed documents reflecting the
low back pain the appellant experienced both during and after service. R. at 2643. The examiner
wrote that appellant had “2 episodes of self-limited 1980 and 1981 low back pain inservice” and
“[m]any years later she began to experience recurring and then persistent low back pain currently
diagnosed as lumbar DDD.” Id. The examiner also observed that at no time during these visits
did the appellant attribute her chronic low back pain to her military service, and “[n]o nexus has
been established between active duty back pain and current chronic lumbar disability.” Id.
In a September 2013 rating decision, the regional office (RO) denied service connection
for DDD of the lumbar spine on the basis that the evidence does not reflect that this condition
resulted from, or was aggravated by, a service-connected disability. R. at 2650-51. The appellant
filed a Notice of Disagreement in September 2014, R. at 2475-79, and perfected an appeal in
September 2015. R. at 2128.
In an August 3, 2017, decision, the Board denied service connection for a back disorder.
R. at 714-19. According to the Board, although the appellant “quite clearly has manifested a
current back disorder, and [her] service treatment records indicate that she sought treatment for
back pain in-service,” her back was in normal condition at her separation from service, and she did
not seek treatment for back pain until decades after her separation from service. R. at 719. The
Board further noted that the record did not “contain an opinion demonstrating a medical nexus
between a current disability and an in-service incurrence.” Id. The Board concluded that the
weight of the evidence reflects that the appellant’s back problems resolved before he separated
3
from service, and his current back disorder “is not related to a period of service; did not manifest
within one year of his separation from service; and is not linked to continuity of symptomatology
since his separation from service.” Id. The appellant moved for reconsideration of the August
2017 decision on October 16, 2017, and he noted that the Board had failed to address whether her
back disability was secondary to her service-connected disability. R. at 308-10. In a March 30,
2018, decision, the Board granted reconsideration of the August 2017 decision, vacated this
decision, and issued another decision on March 30, 2018, the decision we consider here on appeal,
denying the appellant’s claim for service connection for a back disorder. R. at 2-10. In addition
to finding that service connection is not warranted on a direct basis, the Board, after reviewing the
content of the August 2013 VA examination, determined that the appellant is not entitled to service
connection on a secondary basis. R. at 7-8.
II. ANALYSIS
The appellant contends that the Board “committed reversible error,” pursuant to the benefit
of the doubt doctrine under 38 C.F.R. § 3.102 and 38 U.S.C. § 5107(b), when it denied her claim
for service connection for a back disorder, to include as secondary to the service-connected
bilateral knee disability “by failing to consider alternate theories of entitlement to benefits, in
violation of Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991).” Appellant’s Brief (Br.) at According to the appellant, the Board failed to consider whether the evidence of record supports
her assertion that her lumbar spine condition is secondary to her service-connected bilateral knee
condition. Id. at 9-10. The appellant also maintains that if the Board did consider these
regulations, “it failed to provide a statement of reasons or bases that would be sufficient to inform
the [a]ppellant of the Board’s reasoning in this case.” Id. at 10. In response, the Secretary
maintains that the March 2018 decision did address the secondary theory of entitlement, and “the
Board properly considered the lay and medical evidence of record, including the August and
September 2013 examinations that squarely addressed the medical questions presented . . . to find
that [a]ppellant’s back disability was less likely than not related to service or her service-connected
knee disability.” Secretary’s Br. at 8-9.
The Board must provide a statement of the reasons or bases for its determination, adequate
to enable an appellant to understand the precise basis for its decision, as well as to facilitate review
in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
4
Derwinski, 1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board must analyze
the credibility and probative value of the evidence, account for the evidence it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table). Whatever the type of evidence, it is the Board’s province to determine its credibility
and weight. Owens v. Brown, 7 Vet.App. 429, 433 (1995); Madden v. Gobber, 125 F.3d 1477,
1481 (Fed. Cir. 1997) (it is the “duty [of] the Board to analyze the credibility and probative value
of evidence”). “A factual finding ‘is “clearly erroneous” when although there is evidence to support
it, the reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
Establishing that a disability is service connected for purposes of entitlement to VA
disability compensation generally requires medical or, in certain circumstances, lay evidence of
(1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a
nexus between the claimed in-service injury or disease and the current disability. See 38 U.S.C.
§ 1110; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); see also Davidson v.
Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (2019). Service connection
may be established on a secondary basis for a current disability that is either proximately caused
by or aggravated by a service-connected disability. See Allen v. Brown, 7 Vet.App. 439, 448
(1995) (en banc); 38 C.F.R. § 3.310(a), (b) (2019). The Board is required to consider all theories
of entitlement to VA benefits, including via secondary service connection, that are either raised by
the claimant or reasonably raised by the record. DeLisio v. Shinseki, 25 Vet.App. 45, 53 (2011)
(“[T]he Secretary generally must investigate the reasonably apparent and potential causes of the
veteran’s condition and theories of service connection that are reasonably raised by the record or
raised by a sympathetic reading of the claimant’s filing.”); Robinson v. Peake, 21 Vet.App. 545,
553 (2008) (holding that the Board errs when it fails to adequately address all issues expressly
raised by the claimant or reasonably raised by the evidence of record), aff’d sub nom. Robinson v.
Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). The Court has jurisdiction to review whether the Board
erred in failing to consider a reasonably raised issue or theory of entitlement. See Barringer v.
Peake, 22 Vet.App. 242, 244 (2008).
5
The Court is persuaded that the Board provided an inadequate statement of reasons or bases
for relying on the August 2013 VA medical examination. See Gilbert v. Derwinski, 1 Vet.App.
49, 56-57 (1990) (detailing that in each of its decisions, the Board is required to provide a written
statement of the reasons or bases for its findings and conclusions adequate to enable an appellant
to understand the precise basis for the Board’s decision as well as to facilitate review in this Court).
As discussed, the August 2013 VA examiner found that the appellant’s back disability “is not caused by or related to her [service-connected] chondromalacia bilateral knees, and is more likely than not due to natural progression of aging and elevated BMI.” R. at 2695-96. The examiner did not address whether the appellant’s back disability was aggravated or worsened by her serviceconnected knee disabilities. In this regard, the conclusion reached by the examiner still does not adequately address the question whether the appellant’s back disability is more severe than it should be because of the symptoms attributed to her bilateral knee disability. See Allen, 7 Vet.App. at 449 (where an examiner noted “no etiological relationship” between a service-connected and non-service-connected disability, it was “a big stretch of the English language” to construe the phrase as encompassing aggravation). Accordingly, the Court concludes that the Board clearly erred in relying on the August 2013 examination report when it denied service connection for the appellant’s back disability on a secondary basis. Therefore, remand is necessary so that the Board
may obtain an adequate medical opinion on the question of aggravation.
Given this disposition, the Court need not, at this time, address the other arguments and
issues raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order)
(holding that “[a] narrow decision preserves for the appellant an opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this Court in an appeal, should
the Board rule against him”). The appellant is free on remand to submit additional evidence and
argument, including the arguments raised in his briefs to this Court, in accordance with
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must
consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534
(2002). The Court reminds the Board that “[a] remand is meant to entail a critical examination of
the justification for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991),
and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
6
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs and a review of the record,
the Board’s March 30, 2018, decision is VACATED and the matter is REMANDED for further
proceedings consistent with this decision.
DATED: March 20, 2020
Copies to:
James N. Guin, Esq.
VA General Counsel (027)

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Powered by WordPress.com.