Citation Nr: 1308377 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 06-13 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for degenerative joint disease of the left knee as secondary to service-connected residuals of a right knee replacement. 2. Entitlement to service connection for degenerative joint disease of the left hip as secondary to service-connected residuals of a right knee replacement. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and J.M. ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from February 1957 to February 1961. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran and J.M. testified before the Board in May 2012 at a hearing conducted at the RO. A transcript of the hearing is of record. This case was previously before the Board in July 2012, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The case is once again before the Board for appellate consideration of the issue on appeal. During the May 2012 hearing, the Veteran raised the issue of entitlement to service connection for a back disability, and the issue of whether new and material evidence has been received to reopen a claim of service connection for a back disability was referred by the Board in the July 2012 remand. To date, no action has been taken on the Veteran's claim. As such, this issue is again REFERRED to the RO for its consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995). FINDINGS OF FACT 1. Resolving all doubt in favor of the Veteran, degenerative joint disease of the left knee is caused by his service-connected right knee disability. 2. Resolving all doubt in favor of the Veteran, degenerative joint disease of the left hip is caused by his service-connected right knee disability. CONCLUSIONS OF LAW 1. Degenerative joint disease of the left knee is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012). 2. Degenerative joint disease of the left hip is proximately due to a service-connected disability. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veteran asserts entitlement to service connection for degenerative joint disease of the left knee and hip as secondary to his service-connected residuals of a right knee replacement. Initially, the Board observes the Veteran has not asserted, nor does the record indicate, that his current left knee and/or left hip disabilities are directly related to his active service. As such, the Board will not discuss direct service connection in the instant case. Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2012). Establishing service-connection on a secondary basis 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. See 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). When aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen, supra. The Veteran has submitted a number of medical statements in support of his claim. For instance, in a December 2003 statement, R.J., a physical therapist, stated he suspects the Veteran's left hip pain dysfunction is likely related in part to weight shift in ambulation following right knee surgery. A November 2004 statement from Dr. M.S. indicates the Veteran suffers from left hip and leg pain dating back to the 1996 right knee surgery. Dr. M.S. noted that, while the Veteran's left knee and leg pain are related in part to a neuropathy, they are also related to strength and gait disturbances, which began in the same time frame as the right knee surgery. In an April 2005 statement, Dr. M.S. indicated that due to the in-service injury to the right knee and meniscectomy, the Veteran developed an abnormal gait pattern which increased stress on his left knee, which caused pain in the left knee as well as the right. Dr. M.S. stated that "[d]ue to his abnormal gait pattern he also developed degenerative and painful issues in the left knee as well, eventually requiring arthroscopic surgery in 1998" and that, "[i]n summary, I believe his pain issues in his knees are related to the initial problem with his right knee from injury and subsequent joint replacement and gait disturbance, and then also a subsequent degenerative problem in his left knee from increased stress and abnormal gait." In third letter, dated in November 2006, Dr. M. S. reiterated his previous contentions, concluding that the Veteran's degenerative changes in his left knee are at least as likely as not caused by the problems related to his [right] knee and his abnormal gait and postoperative complications. He stated further that the probability is 50/50 in regards to the relationship. The Veteran also submitted two statements from Dr. L.G., a private physician. In a May 2006 statement, Dr. L. G. stated that it is possible that the arthritis in the Veteran's left knee is a result of the injuries to his right knee. He further stated that while it is impossible to decide that the Veteran's previous right knee injury is the sole cause of his arthritis in the left knee, in pertinent part, it is certainly a phenomenon of overuse to the left knee that could have resulted from the right knee injury that leads to arthritis many years later. In his June 2006 statement, Dr. L.G. noted the Veteran's service-connected right knee replacement and stated that "[w]ith time spent over using the left knee he feels that he has overuse arthritis on the left and I would feel that this is about as likely as not." Multiple VA opinions have been obtained during the course of the instant appeal. An August 2005 VA examination found the issue of secondary service connection could not be resolved without resort to speculation. A May 2009 VA examination report also found the issue of secondary service connection could not be resolved without resort to speculation, noting that "there is no medical literature supporting the association" between degenerative joint disease of the right knee and degenerative joint disease of the contralateral knee or hip. A January 2011 VA opinion finds the Veteran's left knee and hip disabilities are less likely a result of his service-connected right knee disability, again noting a lack of medical literature supporting the proposition, and attributing the Veteran's disabilities to age. Finally, following the July 2012 Board remand, which specifically requested an opinion regarding aggravation and opinion addressing the positive medical opinions of record, the VA examiner found the Veteran's left knee and hip disabilities are not "proximately due to or the result of" his right knee disability. However, this opinion did not address the issue of aggravation, and again is based solely on a lack of medical literature supporting the Veteran's claim and does not address the positive medical evidence of record. Despite the negative VA opinion, based primarily on a lack of medical literature establishing a link between degenerative joint disease of one knee with disabilities of the opposite extremity, in light of the multiple positive medical opinions, the Board finds the evidence is at least in equipoise regarding whether the Veteran's degenerative joint disease of the left knee and left hip are proximately due to his service-connected residuals of a right knee replacement. A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, resolving all doubt in favor of the Veteran, the Board concludes that service connection is warranted for degenerative joint disease of the left knee and hip as proximately due to service-connected residuals of a right knee replacement. 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 439. ORDER Service connection for degenerative joint disease of the left knee is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for degenerative joint disease of the left hip is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs