Citation Nr: 1749136	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  10-27 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to service connection for a lumbar spine disability, to include as secondary to a service-connected disability. 

2.  Entitlement to service connection for a right hip disability, to include as secondary to a service-connected disability.


REPRESENTATION

Appellant represented by:	J. Michael Woods, Private Attorney


ATTORNEY FOR THE BOARD

April Maddox, Counsel


INTRODUCTION

The Veteran had active military service from July 1977 to July 1981. 

These claims come to the Board of Veterans' Appeals (Board) from a December 2013 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

The claims were previously before the Board in January 2017 at which time they were remanded for additional development.  

This appeal was processed using the Veteran Benefits Management System (VBMS) and Virtual VA paperless claims file systems.


FINDINGS OF FACT

1.  The Veteran currently has degenerative disc disease of the lumbar spine and the competent medical opinions on the question of whether the Veteran's current lumbar spine disorder is etiologically related to or aggravated by her service-connected bilateral knee and/or left hip disorders are in relative equipoise.  

2.  The Veteran currently has bursitis of the right hip and the competent medical opinions on the question of whether the Veteran's current right hip disorder is etiologically related to or aggravated by her service-connected bilateral knee and/or left hip disorders are in relative equipoise.  


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a lumbar spine disability are met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a right hip disability are met.  38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran is seeking service connection for lumbar spine and right hip disabilities.  Specifically, the Veteran claims that her current lumbar spine and right hip disabilities are directly related to her active military service and/or are proximately due to or aggravated by her service-connected bilateral knee and/or left hip disabilities.  

Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. 
§ 1131; 38 C.F.R. § 3.303.  Generally, this requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167   (Fed. Cir. 2004).  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 

Under 38 C.F.R. § 3.310(a), service connection may also be granted for disability that is proximately due to or the result of a service-connected disease or injury.  That regulation permits service connection not only for disability caused by service-connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability.  See also Allen v. Brown, 7 Vet. App. 439, 448 (1995).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107.

Analysis

Historically, service treatment records show several complaints regarding the knees and, by rating decision dated in September 1982, the RO granted service connection for bilateral knee disabilities.  While two isolated service treatment records dated in 1978 and January 1979 show two isolated incidents of back pain with an assessment of muscle spasm, the remaining records are negative for a disability of the lumbar spine and/or the hips.  

Significantly,  service connection was granted for bursitis of the left hip by rating decision dated in January 2010 based on a January 2010 VA medical opinion which found that the Veteran's left hip disability was secondary to an altered gait caused by the Veteran's service-connected bilateral knee disabilities.  

With regard to the lumbar spine, post-service treatment records show that the Veteran was involved in a motor vehicle accident in April 1989 and a May 1989 computed tomography scan of the lumbar spine shows a small central herniated disc of L5-S1.  A February 1998 magnetic resonance imaging (MRI) scan shows degenerative disc disease (DDD) of the lumbar spine.  The Veteran submitted an initial claim for service connection for a back disability in April 2011.  In connection with this claim, she was afforded a VA examination in July 2011 and was diagnosed with degenerative arthritis and DDD, mild, of the lumbar spine.  Significantly, this examination shows unsteadiness of gait.  Service connection for a back disability was initially denied (on a direct basis only) by rating decision in September 2011 but the Veteran did not perfect an appeal as to this decision.  

With regard to the Veteran's right hip, post-service records show an impression of right hip bursitis as early as 2011.  

The Veteran submitted the current claim on appeal in September 2013.  In connection with this claim, she underwent a VA spine examination in November 2013.  The examiner diagnosed DDD and lumbar strain and, after a review of the claims file, opined that her lumbar back disability was less likely than not proximately due to or the result of the Veteran's service- connected condition.  The examiner's rationale was based on the fact that there is no abnormality of gait to her left hip bursitis that would predispose the Veteran to excess force or strain on the lumbar spine.  There were no reported service connected injuries, other than two cases of transient lumbar strain described in the claims file.  There were no associated conditions such as scoliosis, or arthritis in the lower extremities that would put undue stress on the lower back.  Lastly, the examiner stated that the relatively mild degenerative findings on lumbar imaging studies are common age-related changes.  

The Veteran also underwent a VA hip examination in November 2013.  The examiner diagnosed bilateral bursitis of the hips and, after review of the claims file, opined that the Veteran's right hip disability was less likely than not proximately due to or the result of the Veteran's service-connected disabilities.  Specifically, the examiner noted that there was no reported in-service injury to the right hip which would pre-dispose the Veteran to developing trochanteric bursitis.  Furthermore, the examiner found that there was no abnormality in gait related to her left hip pain that would cause bursitis on the right.  The examiner noted that there were no associated abnormalities such as leg length discrepancy, scoliosis, lower extremity arthritis, or calcification of either hip on X-ray that would pre-dispose the Veteran to trochanteric bursitis on the right.  

In support of her claim, the Veteran's representative submitted an October 2016 medical opinion from Dr. H.S., a private physician.  Dr. H.S. reviewed the claims file and concluded that the Veteran's back disability is caused by and permanently aggravated by the antalgic gait caused by her service connected bilateral knee disability and left hip disability.  Dr. H.S. noted that, according to medical research regarding limping, there is a shift of the body's center of gravity towards the affected leg.  This results in lateral bending of the trunk towards that side.  When weight is transferred to the good leg, the repositioning of the center of gravity in the mid-line is due, in part, to the pull of the para-lumbar and abdominal muscles.  The increased muscle pull increases the force transmitted across the lumbar discs, facet joints, hip, knee, and ankle due to the mechanical leverage.  This, in turn, can cause or aggravate degenerative changes of the disc and facet joints.  Dr. H.S. included an article entitled "Limping and Back Pain" in support of his opinion.

Pursuant to the January 2017 Board remand, additional VA examinations and opinions were obtained in March 2017.  The March 2017 VA spine examiner opined that the Veteran's lumbar spine disability is less likely than not proximately due to or the result of a service-connected condition.  As rationale for this opinion, the examiner wrote that Veteran worked as a laborer after her discharge from service, including the United States Postal Service and was able to pass a physical examination to secure her position.  The Veteran was involved in a motor vehicle accident in April 1989 with a serious back injury--a herniated L5-S1 disc with a workman's compensation claim was filed.  Therefore, it was less likely than not that Veteran's service-connected bilateral knee and/or left hip disabilities resulted in or caused a secondary lower back condition.

In a subsequent addendum opinion, the March 2017 VA spine examiner noted that physical examination was silent for antalgic gait, show wear pattern evidence for lateral heel strikes, no characteristic callouses on soles of feet evidence to an antalgic gait and toe/heel/duck walk approximately 10 inches done with good balance, stride, and muscle tone.  A lower back injury/condition can also cause an antalgic gait with shifting weight.  Long standing antalgic gait on physical examination would, more likely than not, show evidence for unilateral/abnormal heel strike and/or characteristic callouses on the soles of her feet with chronic antalgic gait.  The examiner noted that the October 2016 opinion from Dr. H.S. offered no consideration for the Veteran's post-service injury to her back in 1989 revealing a herniated L5-S1 and was, thus, incomplete.  The body of evidence weighs over 51 percent more likely than not that the Veteran's back condition resulted from an acute back injury and/or a traumatic motor vehicle accident and was not caused and/or aggravated beyond the natural progression by her service-connected bilateral knee/left hip disabilities.  

The March 2017 VA hip examiner opined that the Veteran's right hip disability is less likely than not proximately due to or the result of a service-connected condition.  As rationale for this opinion, the examiner wrote that a review of medical literature was silent for a left bursitis hip causing a contralateral hip bursitis.  Shoe wear pattern was evident for a normal gait with lateral heel strikes.  Physical examination of soles of feet was absent of characteristic callous that develop with an antalgic gait.  Therefore, the examiner opined that it was less likely than not that the Veteran right hip condition was caused by or resulted from her service-connected left hip condition.  Furthermore, the examiner wrote that a review of medical literature was silent for either DJD (degenerative joint disease) of knees with PFS (patellofemoral syndrome) causing a right hip bursitis as there was no physical evidence of antalgic gait.  Therefore, it was less likely than not that the Veteran right hip conditions was caused by or resulted from her service-connected bilateral knee condition.  

In a subsequent addendum opinion, the March 2017 VA hip examiner noted that the October 2016 medical opinion from Dr. H.S. did not apply to the right hip claim as the opinion only concerned the lumbar spine.  The examiner also wrote that the Veteran had several high risk factors for her right hip disability including her gender (female), age (over 50), obesity, iliotibial band tenderness, and low back pain.  It was noted that she developed right hip pain in 2011 which she was over 50 years old and that she had a long standing history of chronic lower back pain.  

Given the above, the Board finds that service connection for lumbar spine and right hip disorders is warranted.  Significantly, the October 2016 opinion from Dr. H.S. provides a positive opinion linking the Veteran's lumbar spine disorder to her service-connected bilateral knee and left hip disorders, due to the Veteran's altered gait.  While the October 2016 opinion from Dr. H.S. does not pertain to the right hip, both the logic and rationale behind the October 2016 opinion as well as the previous January 2010 VA opinion regarding the left hip support the theory that the Veteran's right hip disorder can be linked to her service-connected bilateral knee and left hip disorders, due to the Veteran's altered gait.

While the November 2013/March 2017 VA examiners concluded that the Veteran's current lumbar spine and right hip disorders were not related to her service-connected disorders as the Veteran does not have an altered gait, these opinions do not consider the fact that the Veteran was found to have an antalgic gait in January 2010 and was found to have unsteadiness of gait in July 2011.  While the Veteran may not currently demonstrate an altered gait, there is medical evidence that she did have an altered gait at one point.  Furthermore, while the November 2013 and March 2017 VA lumbar spine examiners noted that the Veteran's lumbar spine disability is related to the Veteran's post-service motor vehicle accident and/or age such does not refute the Veteran's allegation that the lumbar spine disorder is aggravated by her service-connected bilateral knee and/or left hip disorders.  

On balance, the October 2016 statement from Dr. H.S. regarding the lumbar spine as well as the January 2010 VA opinion regarding the hips provide positive and well-reasoned opinions.  As such, the Board finds that remand for an additional VA examination and opinion would resemble a fishing expedition for negative evidence, which, in view of the available medical evidence, is not warranted.  Indeed, obtaining such additional evidentiary development this instance would only result only in additional delay with no benefit to the Veteran.  Sabonis v. Brown, 6 Vet. App. 426 (1994); VAOPGCPREC 5-04, 69 Fed. Reg. 59,989  (2004).  

With resolution of all reasonable doubt in the Veteran's favor, the Board determines that the evidence supports service connection for lumbar spine and right hip disabilities.  38 U.S.C.A. § 5107(b).  



ORDER

Service connection for a lumbar spine disability is granted.

Service connection for a right hip disability is granted.




____________________________________________
L.M. BARNARD
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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