Citation Nr: 0928757 Decision Date: 07/31/09 Archive Date: 08/04/09 DOCKET NO. 04-44 516 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a bilateral knee disability, status post (S/P) total right knee replacement, to include as secondary to a bilateral foot disability. 2. Entitlement to service connection for a low back disability, to include as secondary to a bilateral foot disability. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney ATTORNEY FOR THE BOARD O. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1954 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 decision of the RO in Indianapolis, Indiana, which in pertinent part denied a claim of service connection for a bilateral knee disability, status post total right knee replacement, and a claim of service connection for a low back disability. The Board remanded this case in October 2007. It returns now for appellate consideration. In a July 2008 decision, the Board denied service connection for a bilateral knee disability, status post (S/P) total right knee replacement, to include as secondary to a bilateral foot disability, and a low back disability, to include as secondary to a bilateral foot disability. The Veteran then appealed to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2009 Order, the Court endorsed a May 2009 joint motion for remand and remanded the appeal for compliance with the instructions in the joint motion. Subsequent to the issuance of the April 2008 supplemental statement of the case (SSOC), the Veteran submitted additional evidence which was not considered by the RO. The Veteran, through his attorney, has waived RO consideration of that evidence in a July 2009 submission. As such, the Board may consider the appeal. 38 C.F.R. § 20.1304 (2008). FINDINGS OF FACT 1. Giving the Veteran the benefit of the doubt, the evidence is at least in equipoise that his bilateral knee disability is related to active military service. 2. Giving the Veteran the benefit of the doubt, the evidence is at least in equipoise that his low back disability is related to active military service. CONCLUSION OF LAW 1. The Veteran's bilateral knee disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). 2. The Veteran's low back disability was incurred in active service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1154, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims file, and has an obligation to provide reasons and bases supporting the decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the Board is granting in full the benefits sought on appeal. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). II. Service Connection The Veteran contends that he has a bilateral knee disability and a low back disability as secondary to his service- connected bilateral foot disability or as a direct result of active service. Following the issuance of the July 2008 Board decision, new evidence submitted by the Veteran was associated with the claims file. For the reasons that follow, the Board now concludes that service connection is warranted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002). For the showing of chronic disease in service there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. See 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. See 38 C.F.R. § 3.303(d). Service connection may also be granted for a chronic disease, including arthritis, when it is manifested to a compensable degree within one year of separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2008); 38 C.F.R. §§ 3.307, 3.309 (2008). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be established on a secondary basis for disability that is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder that is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 71 FR 52744 (Sept. 7, 2006) (codified at 38 C.F.R. § 3.310(c)); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Establishing service connection on a secondary basis essentially requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. The Board notes that there was a recent amendment to the provisions of 38 C.F.R. § 3.310. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged. Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen v. Brown, 7 Vet. App. 439 (1995), it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice, which strongly suggests that the recent change amounts to a substantive change in the regulation. Given what appear to be substantive changes, and because the Veteran's claim was pending before the regulatory change was made, the Board may consider the version of 38 C.F.R. § 3.310 in effect before the change, which is the version that favors the claimant. As an initial matter, the Board notes that medical evidence establishes that the Veteran has current diagnoses of a bilateral knee disability and a low back disability. See Hickson, supra. Private medical records show that the Veteran has been diagnosed with degenerative joint disease of the right knee, having undergone total knee arthroplasty in November 2003, and has also been diagnosed with degenerative joint disease of the left knee. In addition, the Veteran has been diagnosed with degenerative disc disease of the lumbar spine and has undergone surgical intervention as a result. These bilateral knee and low back disabilities were confirmed at the March 2008 VA examination. The inquiry that follows is whether there is evidence of an in-service disease or injury. Service treatment records are silent for any knee or back problems upon entrance examination in July 1954. Likewise, there is no evidence showing that the Veteran complained of or was diagnosed with any type of knee or back condition during service. There is no evidence of arthritis within one year of service separation. Given that there is no competent evidence to indicate that the Veteran incurred a disease or injury in service, or evidence of arthritis within one year of discharge, the claims of service connection for bilateral knee and low back disabilities on direct and presumptive bases must fail. See Hickson, supra. The Board will now consider whether service connection for a bilateral knee disability and a low back disability can be established as secondary to his service-connected bilateral foot disability. See 38 C.F.R. § 3.310(a). The record contains a statement from Dr. J.S.U. dated in June 2003, which gives the opinion that the Veteran's foot abnormalities have contributed significantly to his knee and back problems. Also of record is a January 2004 statement from Dr. A.H.J., which indicates that the difficulty of the Veteran's ambulation has caused problems in his low back, knees and lower extremities. The Veteran was afforded a VA examination in March 2008 to evaluate the current nature and etiology of his knee and lumbar spine problems. The Board finds the examination report to be comprehensive and sufficient in addressing the matter of nexus in light of the Veteran's service-connected bilateral foot disability. The report reflects a thorough review of the claims file, including medical records, and provides detailed findings and analyses. Following a physical examination and a review of x-ray results, the examiner noted that the Veteran's problems originated in the cervical spine, which led to problems in the lumbar spine, which in turn resulted in problems in the knees. The examiner also observed that the Veteran first began having problems with his cervical disc in 1985, then began having problems with the lumbar spine in 1991. It was not until 2003 that the Veteran complained of foot pain. Based on these findings, the examiner gave the opinion that the Veteran's foot condition did not cause or result in the Veteran's back disability or bilateral knee disability. Subsequently, the Veteran submitted another medical statement from Dr. J.S.U. In this statement, Dr. J.S.U. explains that the Veteran has been his patient for over 10 years. Regarding the Veteran's service connection claims, Dr. J.S.U. states that he has reviewed the most recent findings of April 21, 2008 (the date of the SSOC) and differs with the conclusions. He opines that it is very clear to him that the Veteran's foot pain and lack of stability threw off his gait, and that any podiatrist or orthopedist would agree that the remaining joints in the lower extremities such as the knees, hips and lumbar spine are then put under added strain to help compensate for the lack of stability in the feet. It is noted that the Veteran underwent lumbar disc surgery in 1993 and total knee replacement in 2003. Additionally, it is noted that the Veteran's lumbar spine is riddled with arthritis, and that most recently his back and knees have deteriorated to the point that even after surgery he is unable to ambulate without the aid of a walker and only with extreme effort. Dr. J.S.U. acknowledges that the Veteran's cervical disc disease is probably due to degenerative disc disease, but explains that the cervical spine is responsible only for supporting the head whereas the lumbar spine is responsible for supporting the trunk and trying to compensate for discrepancy in lower body motion. The Board has reviewed and weighed the medical evidence of record and afforded particular attention to the medical statements of Dr. J.S.U. and Dr. A.H.J. and the March 2008 VA examination report. While the March 2008 VA examination report is thorough and adequate upon which to base a decision, the Board finds the more recently rendered medical opinion of Dr. J.S.U. to be more probative. Of particular significance is the fact that Dr. J.S.U. has been the Veteran's primary care physician for over 10 years and is therefore more familiar with the nature and progression of the Veteran's disabilities. This opinion, in conjunction with the June 2003 medical statement of Dr. J.S.U., establish that the Veteran's foot abnormalities have contributed significantly to his knee and back problems. These opinions are further corroborated by the January 2004 statement of Dr. A.H.J., which indicates that the difficulty of the Veteran's ambulation has caused problems in his low back, knees and lower extremities. Taking into account all of the relevant evidence of record, the Board finds that the evidence is at least in equipoise that the Veteran's bilateral knee and low back disabilities are proximately due to, or the result of, his bilateral foot disability. See 38 C.F.R. § 3.310(a). Accordingly, secondary service connection for a bilateral knee disability and a low back disability is warranted. As such, the Board concludes that the evidence is at least evenly balanced as to whether the Veteran's bilateral knee and low back disabilities are related to his service- connected foot disabilities, and therefore, service connection is warranted. The benefit-of-the-doubt rule has been applied in reaching this decision. See 38 U.S.C. § 5107(b) (West 2002); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert, supra. ORDER Entitlement to secondary service connection for a bilateral knee disability (degenerative joint disease), S/P total right knee replacement is granted. Entitlement to secondary service connection for a low back disability (degenerative disc disease) is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs