tdiu Veterans Board Of Appeals Takes Dr. Bash's Opinion Over Va Doctor

[Bound4heaven]

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Bound4Heaven

Citation Nr: 0508095

Decision Date: 03/18/05 Archive Date: 03/30/05

DOCKET NO. 98-19 597 ) DATE

)

)

On appeal from the

Department of Veterans Affairs Regional Office in Columbia,

South Carolina

THE ISSUE

Entitlement to service connection for a low back disability,

including secondary to an already service-connected left knee

disability.

REPRESENTATION

Appellant represented by: Sean A. Ravin, Attorney-at-Law

WITNESSES AT HEARING ON APPEAL

The appellant, his spouse, and C. B., MD.

ATTORNEY FOR THE BOARD

J. Fussell, Counsel

INTRODUCTION

The veteran had verified active duty from September 1970 to

September 1972 and from January 1991 to May 1991. He also

served in the reserves and had verified periods of active

duty for training (ACDUTRA) in July and August 1974, and in

July and August 1975.

This appeal to the Board of Veterans' Appeals (Board) arose

from an October 1997 rating decision of the Department of

Veterans (VA) Regional Office (RO) in Columbia, South

Carolina - which denied service connection for a low back

disability. But the RO granted service connection for a left

knee disability and assigned an initial 10 percent rating for

it. This is currently the veteran's only service-connected

disability.

A hearing was held at the RO in November 2000 before a

Veterans Law Judge (VLJ) of the Board. This type of hearing

is often called a travel Board hearing. A transcript of that

proceeding is of record.

The Board remanded the case to the RO in March 2001 for

further development and consideration. In July 2002 the

Board denied the claim for service connection for a low back

disability on both direct and secondary bases. That Board

decision was appealed to the United States Court of Appeals

for Veterans Claims (Court). And pursuant to a February 2003

Joint Motion, the Court entered an Order in February 2003

vacating that July 2002 Board decision and remanding the case

to the Board for compliance with the Veterans Claims

Assistance Act (VCAA).

In response, the Board remanded the case to the RO in

September 2003. And more recently, in March 2005, the

veteran, his spouse, and Craig Bush, M.D., testified at a

hearing at the Board's offices in Washington, DC, before the

undersigned VLJ. A complete transcript of the hearing is of

record.

The Board advanced this case on the docket pursuant to a

motion filed under 38 C.F.R. § 20.900 (2004).

During the March 2005 hearing, the veteran and his attorney

raised additional claims for a rating higher than 10 percent

for the service-connected left knee disability and for a

total disability rating based on individual unemployability

(TDIU). See page 2 of the hearing transcript. These

additional claims, however, have not been adjudicated by the

RO, much less denied and timely appealed to the Board, so

referral to the RO for initial development and consideration

is required since the Board does not currently have

jurisdiction to consider them. See 38 C.F.R. § 20.200

(2004).

FINDING OF FACT

Based on the medical and other evidence currently of record,

it is just as likely as not the veteran's current low back

disorder is attributable to functional impairment from his

service-connected left knee disability.

CONCLUSION OF LAW

Resolving all reasonable doubt in the veteran's favor, his

low back disorder is proximately due to and the result of his

service-connected left knee disability. 38 C.F.R. § 3.310(a)

(2004).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act (VCAA)

The VCAA, codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,

5106, 5107, 5126 (West 2002), became effective on November 9,

2000. Implementing regulations are codified at

38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2004). The

VCAA requires that VA notify the veteran of the type of

evidence needed to substantiate his claim, including insofar

as whose specific responsibility - his or VA's, it is for

obtaining the supporting evidence. The VCAA also requires

that VA assist the veteran in obtaining evidence necessary to

substantiate a claim, but is not required to provide

assistance if there is no reasonable possibility that it

would aid in substantiating the claim. Charles v. Principi,

16 Vet. App. 370, 373-74 (2002); Quartuccio v. Principi, 16

Vet. App. 183, 186-87 (2002).

The Board has determined that the evidence and information

currently of record supports a complete grant of the benefit

requested. Therefore, no further notification and/or

development is required to comply with the VCAA or the

implementing regulations because it would be inconsequential.

So the Board will address the merits of the veteran's claim

for service connection for a low back disorder.

Legal Analysis

Disability that is proximately due to or the result of a

service-connected disorder shall be service-connected.

38 C.F.R. § 3.310(a) (2004). Service connection will also be

granted for aggravation of a nonservice-connected condition

by a service-connected disorder, although compensation is

limited to the degree of disability (and only that degree)

over and above the degree of disability existing prior to the

aggravation. See Allen v. Brown, 7 Vet. App. 439 (1995).

In determining whether service connection is warranted for a

disability alleged, VA is responsible for considering

evidence both for and against the claim. If the evidence, as

a whole, supports the claim or is in relative equipoise

(i.e., about evenly balanced), then the veteran prevails.

Conversely, if the preponderance of the evidence is against

the claim, then it must be denied. See 38 C.F.R. § 3.102;

Gilbert v. Derwinski, 1 Vet. App. 49 (1990);

Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The veteran's only service-connected disability is impairment

of the left knee, which currently has a 10 percent rating.

In a January 2004 report, Dr. Craig Bash stated that he had

reviewed the veteran's claims file for the purpose of

providing a medical opinion concerning his low back

disability. Dr. Bash pointed out this case was well within

his area of expertise. And after reviewing the record he

stated, in pertinent part, that:

It is my opinion based on the medical record, x-

ray findings, and the patient's statements that

this patient's spine is most likely secondary to

his longstanding service connected lower leg

disability and his accompanying abnormal gait,

which likely damaged his perivertebral spinal

ligaments due to undue and abnormal stress.

It is also my opinion that this patient's spine

disc disease presented with sciatica, nerve

damage, gait abnormalities and muscle atrophy

in 1997 ....

A great deal of confusion is present in the C-File

record concerning this patient's spine disease.

He currently has very severe advanced degenerative

spine disease with sciatica, antalgic gait, uses a

cane for ambulation, has muscle atrophy, and has

had multiple epidural steroid injections and a

herniated disc. The question presented in the

file is whether or not the spine disease is

related to his service connected abnormal knee and

not whether his currently [sic] spine disease was

caused by his knee surgery in 1996 ..... It is well

known that patient's [sic] with lower extremity

orthopedic problems often have abnormal gaits and

these patients often rapidly develop abnormal

painful spines. The abnormal forces which are

secondary to the gait problems places excessive

stresses across the vertebral column, which in

turn damages the ligaments. As Turik states in

the following, once ligaments are damaged then the

patient will experience advanced degenerative

arthritis:

"... At the onset, tearing of ligaments and

subluxation are manifest by local symptoms

of low back pain accentuated by the motion

which stretches the ligaments ...

Eventually, symptoms of localized

degenerative arthritis are superimposed ...

(Turik page 853)

It is my opinion that this patient's spine disease

is most likely secondary to this longstanding

service connected lower leg disability and his

accompanying abnormal gait, which likely damaged

his perivertebral spinal ligaments due to undue

and abnormal stress for the following reasons:

1. The patient entered service with

normal legs and spine.

2. The patient had a serious in service

leg injury which is

service connected.

3. The patient has had a longstanding

abnormal gait.

4. The patient now has advanced premature

degenerative

spine disease with sciatica, atrophy

and a herniated

disc.

5. The patient does not have another

plausible etiology

for his spine disease.

6. The literature supports an association

between advance

spine disease and a longstanding

abnormal gait.

7. The medical opinions stating that this

patients [sic]

spine is not related to his leg

surgery are non germane

[sic] to the case because this

patient's spine disease is

most likely secondary to his

longstanding abnormal

gait.

The veteran underwent a VA orthopedic examination in May

2004, also to obtain a medical opinion concerning the

etiology of his low back disability at issue. His claims

file was apparently available for review by the evaluating

physician inasmuch as the examiner related the veteran's

medical history. In doing so it was reported that, in

February 1997, about six months after his left knee surgery,

he experienced the sudden onset of severe low back pain, for

which he underwent an MRI that revealed bulging discs. After

a physical examination it was reported that:

Given the apparently routine nature of the left

knee arthroscopy, and the subsequent negative

history relative to that joint as well as

currently normal examination of that joint, it is,

in my mind, very unlikely that the left knee

condition would have led to significant lumbar

spine abnormalities. While it is known that

chronic gait abnormalities can lead to lumbar

spine injury and wear and tear, the length of time

involved here makes this unlikely in my opinion.

[The veteran's] surgery was in August of 1996 and

his onset of low back pain was six months later in

February 1997. Again, given the apparently

satisfactory outcome of his knee arthroscopic

surgery, it is in my opinion very unlikely that

the degree and duration of gait abnormality

subsequent to that surgery was sufficient to cause

the currently observed degenerative disk disease

in the lumbar spine. The question relating to the

unusual physical therapy exercises is a highly

speculative one. Given the veteran's description

of what he did during these exercises they do

sound a bit unusual, but not potential [sic]

traumatic enough to have caused severe lumbar

spine injury without first significantly

exacerbating the knee symptoms. It is my opinion,

therefore, that it is less likely than not that

his degenerative disk disease of the lumbar spine

was secondary to either the knee injury with gait

abnormalities or to the physical therapy used

subsequent to the knee surgery.

The May 2004 VA examiner further stated that he had reviewed

Dr. Bash's opinion, and that it appeared that Dr. Bash had

not examined the veteran to ascertain the severity of the

degenerative disc disease or, more importantly, of the knee.

Given an essentially normal examination of the knee and an

admission on the part of the veteran that he has had very

little symptomatology from the knee since his convalescence,

the May 2004 VA examiner felt justified in disagreeing with

Dr. Bash's January 2004 opinion.

An addendum to the May 2004 VA examination report indicates

that X-rays revealed three compartment osteoarthritis of the

left knee associated with a large Baker's cyst containing

multiple osteochondral fragments.

At the March 2005 hearing at the Board before the undersigned

VLJ, Dr. Bash testified that he had reviewed the veteran's

claims files on two occasions. See pages 11 and 12 of the

transcript. He said there was no evidence of a spinal

herniated nucleus pulposis (HNP) or back pain prior to the

veteran's left knee injury, and that he first developed back

pain after the left knee injury. See pages 14 and 15 of the

transcript. After Dr. Bash had rendered his January 2004

opinion and after the VA examination in May 2004, Dr. Bash

had personally examined the veteran in March 2005 - just a

day prior to the hearing. See Page 16 of the transcript.

That examination found many more positive clinical findings

as to the veteran's left knee than were found on the May 2004

VA examination. Page 17. Of particular note, the veteran's

left thigh was smaller in circumference than his right thigh

- so atrophied, and he had crepitus (a grinding, clicking

sensation) in his left knee. Page 20. Dr. Bash felt that it

was most likely the veteran's left knee pain and abnormal

gait (due to his service-connected left knee disability)

contributed to his current spinal pathology. Page 22. Dr.

Bash further stated that he felt the report of the May 2004

VA examination was inaccurate because it did not incorporate

the results of imaging and the veteran did not have a normal

left knee, as indicated in the May 2004 VA examination

report. Page 22. So in substance, said Dr. Bash, the fact

that the veteran does not have a normal left knee invalidates

the opinion to the contrary expressed by the May 2004 VA

examiner. Page 23.

The veteran testified that the May 2004 VA examination only

lasted about 30 to 35 minutes, but that, in comparison, Dr.

Bash's examination was for an hour or even an hour and 15

minutes. Page 26. The veteran's wife, a nurse, also

testified that he had no complaints of low back problems

prior to June 1996, but since that time has experienced an

abnormal gait. Page 32.

Also during the March 2005 hearing, another statement from

Dr. Bash was submitted into evidence (it is dated in March

2005), along with a waiver of initial consideration by the

RO. In the statement Dr. Bash reported that he had reviewed

the veteran's claims files for, in part, the purpose of

providing a medical opinion regarding the relationship

between his left knee and spinal disabilities. Dr. Bash

reiterated this case is well within his area of expertise

because he is a Board Certified Radiologist with subspecialty

training as a Neuroradiologist and has special knowledge in

the area of spine disease. He submitted a copy of his

curriculum vitae as proof of his qualifications. He further

stated that:

It is my opinion that certain medical opinions and

certain findings provided by Dr. Anderson are

clearly erroneous and have no basis in fact.

Further, [the] opinion [of the May 2004 VA

examiner] is inconsistent with my recent physical

exam finding of 1 March; the patient's medical

history; and the radiology imaging evidence as

I have outlined in the table below:

Dr. Bash went on to state:

In addition to the above discrepancies, I noted

that the patient could not squat, bend, stoop,

walk un-aided or lift from chair without

assistance. The patient also was using a left

knee brace, cane, lumbar spine TENS unit/wet-heat

device.

The report [of the May 2004 VA examiner] is, in my

opinion very inaccurate, which may be due to the

fact that he dictated his findings about a

different patient into this patient's record or

that he did not integrate his addendum or the

imaging finding or his physical findings with his

medical history and/or that his medical training

in preventive/occupational medicine provides him

with an inadequate background to interpret this

complicated multi-joint/spine set of problems

and/or that he did not reference any literature to

support his opinions.

In addition, his report contains several medical

logic disconnects. For example, he basically says

that this patient's left knee is normal and

without crepitus but he also states that the knee

has moderate three-compartmental osteoarthritis.

This is a disconnect. This osteoarthritis is the

imaging equivalent to the crepitus that I felt and

heard on my exam. He also states that the patient

has had very little symptomatology over the years

but he also states that the patient uses a cane

and crutches, takes large doss of pain

medications, has difficulty with bathroom duties

and had to use a bed pain [sic] recently. This is

another disconnect.

Overall, I do not find any basis for his opinion

concerning the severity of this patient's left

knee or why/why not this patient's knee problems

contributed to his spine problems.

In my opinion this patient has had a longstanding

knee problems [sic] since service, which required

surgery and subsequently developed osteoarthritis

as documented on both imaging and exam. The

patient has had left knee pain for years and an

abnormal gait that has been documented in his

records and he now uses a cane/crutches and knee

brace and he has left knee swelling. The patient

developed back pain several months (9 months to be

exact - please note that [the May 2004 VA

examiner] inaccurately stated 6 months) following

his knee surgery. In my opinion 9 months is a

long enough period of time to develop serious back

problems secondary to an abnormal gait and or

chronic knee pain. I have seen back pain develop

immediately after an acute injury and within

several days following chronic gait abnormalities.

It is my opinion that this patient's longstanding

gait problems have caused his lumbar spine to fail

with resultant sciatica ... I have reviewed his

current MRI images dated 2 Aug 2004 and I agree

with [the May 2004 VA examiner] that this patient

has multilevel lumbar disc disease. It is my

opinion that this patient's physical exam (back

pain-spasm as documented on attached ER reports

and sciatica), medical history and imaging

findings are all consistent with his multilevel

lumbar disc disease and that this disease is due

to his longstanding service induced left knee gait

problems as his medical record does not contain

another likely etiology.

In summary, I do not find any new information in

this patient's medical record that convinces me to

change my previous opinion. On the contrary, my

recent medical exam supports my previous opinions

that this patient has serious service induced left

knee and spine problems ....

It is the obligation of the Board to weigh any contrasting or

conflicting medical diagnoses or opinions. See Schoolman v.

West, 12 Vet. App. 307, 310-11 (1999); Evans v. West, 12 Vet.

App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429,

433 (1995). This responsibility is more difficult when

medical opinions diverge. The Board cannot make its own

independent medical determination and there must be plausible

reasons for favoring one medical opinion over another. Evans

v. West, 12 Vet. App. 22, 31 (1998); see also Rucker v.

Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v.

Derwinski, 1 Vet. App. 171 (1991). Probative weight should

not be given to medical opinions when the veteran's records

were not reviewed. See Bielby v. Brown, 7 Vet. App. 260, 269

(1994) (medical opinion is of no evidentiary value when

doctor failed to review veteran's record before rendering an

opinion).

Here, though, both the May 2004 VA examiner and Dr. Bash have

reviewed the veteran's claims files. Nevertheless, it must

be noted that Dr. Bash reviewed the claims files on two

separate occasions - and, like the evaluating VA physician,

has now actually examined the veteran to complement this. So

there are legitimate reasons for accepting this private

physician's medical opinion over the VA examiner's medical

opinion to the contrary.

The private physician's opinions are much more focused by

addressing the impairment cause by the veteran abnormal gait.

Also, Dr. Bash cited more specific evidence in the record to

support his opinion. In fact, Dr. Bash noted inconsistencies

in the May 2004 VA examiner's opinion and, in particular, the

fact that the VA examiner indicated the veteran's left knee

was essentially normal; whereas, X-rays revealed three-

compartment osteoarthritis in this knee.

So resolving all reasonable doubt in the veteran's favor, it

is certainly just as likely as not that his current low back

disorder is a residual of the functional impairment

(especially his abnormal gait) stemming from his already

service-connected left knee disability. Thus, service

connection for a low back disorder, as secondary to his

service-connected left knee disability, is warranted.

ORDER

Service connection for a low back disability is granted.

____________________________________________

Keith W. Allen

Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

Edited October 12, 2006 by Bound4heaven

[Pete53]

Dr Bash kicked some VA ass!!!

[Wings]

Dr. Bash did a great service here. I respect his COMPLETE REVIEW of the medical evidence, thorough medical examination and his finding multiple medical errors in the VA Exams and VA written reports. Good job! ~Wings

[callover007]

That was a very good job Dr. Bash did here. Wonder if there were additional charges since he had to show-up to testify, etc?

Yes. His website states he will appear in DC for an additional fee.

[bhamboy205]

hello--i'm new to the forum so bear with me here. i've been in contact with dr. bash. he seems very nice and eager to help vets. only thing--he's a bit expensive--rightly so considering his expertise and time used. i'm a 10% vet with a service connect diagnosis of optic neuritis. that seems a bit low considering i entered the army with 20/20 and left with 20/40 after high doses of steroids while on active duty (army). i had extensive weight gain from the steroids--and inherited depression, high blood pressure and gastroesophageal reflux. i'd never had blood pressure or gi problems--and was diagnosed with both 1 day after my official ets in 1995. it's assumed that it was caused by the steroids. i've not appealed based on the hbp and reflux--and have since experienced another auto-immune event in 1999 (unknown origin). dr. bash seems to think that all are likely linked to the auto immune optic neuritis from 1993. i want to use him, but can't quite cough up the $3k he's asking for. to anyone who feels they can answer--do you think it is worth first filing the appeal with the va, seeing what they come back with--and then if i don't like it go with dr. bash as a final option? thanks....

[Testvet]

I will probably get jumpred on here, but Dr Bash will work it out with you for a payment plan, otherwise if you think you can win without his IMO, then try it and if it's denied then plan on spending the money, I llok at his fee as a good insurance plan, if it's in your records and he can link it, he will, if it's now in your records and he can find a logical etiology he will, he has to be able to find a nexus something to connect it either directly or as a secondary condition, he knows the language the VA uses and he knows HOW to word the statements, which most doctors don't know HOW to do. The question is what year do you want to win your appeal in, there are some VARO's that deny his IMO's but the BVA accepts them. Believe me Dr Bash stays busy and many veterans have won their claims after getting his IMO's, and there are a lot more that won their cases without ever hearing of Br Bash, but if you have one of those claims you just don't know about, he does and he will tell you up front if he can help you or not, before he asks you for money. No I haven't used him, but I have a very strange case, that it doesn't matter who writes what, DOD will not help with verification records. some of the stuff is still classified and they ain't opening the blind studies for anyone

[Berta]

His fees are comparable with Medopinions- who also are familiar with VA lingo-

A med opinion that does not conform to VA 's IMO criteria is one that-even though the Dr. SCes the condition the VA can find fault with it and reject it.

I paid for 2 IMos from Dr. BAsh- $2,000 each -both different and am ready to send Medopinions $1750 of I need another IMO. Their price was higher than Dr. Bash's at first but when they heard what I had as evidence they lowered the fee-as they only need a few documents.

The VA criteria is here for IMos under many discussions.