Citation Nr: 1304702	
Decision Date: 02/08/13    Archive Date: 02/19/13

DOCKET NO.  12-30 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Waco, Texas



THE ISSUE

Entitlement to service connection for the residuals of a right hip fracture as secondary to the service-connected left total knee replacement.



REPRESENTATION

Appellant represented by:	Texas Veterans Commission



ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel



INTRODUCTION

The Veteran served on active duty from November 1950 to July 1952. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2011 by the RO.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).



FINDING OF FACT

The currently demonstrated right hip fracture residuals are shown to be the result of a fall that as likely as not was caused by instability attributable to the Veteran's service-connected left total knee replacement.



CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his disability manifested by right hip fracture residuals is proximately due to or the result of the service-connected left knee replacement.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012).  




REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

To the extent that the action taken below is favorable to the Veteran, further discussion of VCAA is not required at this time.


Law and Regulations

Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by, a service-connected disease or injury. See 38 C.F.R. § 3.310; see also Harder v. Brown, 5 Vet. App. 183, 187 (1993).  

Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439, 448 (1995).

Where a service-connected disability aggravates a nonservice-connected condition, a Veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448.

In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); see also 38 C.F.R. § 3.102.

Initially, the Board notes that the Veteran does not claim that his right hip fracture is related to service; rather he asserts that it is secondary to his service-connected left knee disability.  Moreover, there is no medical evidence showing any diagnosis in service or for many years thereafter or linking the onset of any of this disability directly to an event or incident of the Veteran's service.

Here, the record clearly indicates that the Veteran has been diagnosed with having had a right hip fracture.  See, e.g. the June 2011 VA examination.  This establishes evidence of a current disability.

The Veteran was granted service connection for a left total knee replacement in a January 2003 rating decision.  

In order to determine whether the claimed right hip fracture was related to the service-connected left knee disability, the Veteran was afforded a VA examination dated June 2011.

The examiner indicated that the Veteran's claims file and medical records had been reviewed and concluded that it was less likely than not that the recent fall and resultant fracture of the right hip were related directly to the previous left total knee replacement.  

The examiner reasoned that the Veteran, who was 81 years old at the time of the fall and had left knee replacement surgery 21 years prior thereto, would be expected to have balance issues due to aging and muscular weakness and did not describe any criticisms of the prosthetic left knee either before or after the July 2010 fall. 

In an October 2011 letter, a private physician stated that the Veteran had been his patient for nine years and recounted the Veteran's report of falling after his left knee "gave away" while ascending a step.  The physician opined that instability of the left knee resulted in the fall which produced the right hip fracture because laxity rendered it unstable for unassisted stair climbing.

As such, on this record, the Board finds the evidence to be relative equipoise in showing that the Veteran's right hip fracture was due to that fall that as likely as not was precipitated by instability that would attributable to the service-connected left total knee replacement.

In resolving all reasonable doubt in the Veteran's favor, service connection for the right hip fracture residuals is warranted in this case.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.310.


ORDER

Service connection for a right hip fracture as secondary to the service-connected left total knee replacement is granted.


____________________________________________
STEPHEN L. WILKINS
Veterans Law Judge
Board of Veterans' Appeals

Department of Veterans Affairs