Citation Nr: 1309963 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 10-44 349 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for degenerative joint disease of the right knee, status-post arthroscopy, chondroplasty, and partial medial and lateral meniscectomy (right knee disability), to include as secondary to service-connected left leg disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran served on active duty from January 1969 to December 1972, including honorable service in the Republic of Vietnam. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska that denied service connection for a right knee disability. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of the hearing is associated with the claims file. In addition to a paper claims file, the Veteran also has an electronic file known as a Virtual VA file. The Board has reviewed both files prior to reaching this decision. FINDING OF FACT The evidence of record is in equipoise as to whether a relationship exists between the Veteran's right knee disability and his service-connected left leg disability. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, his right knee disability was caused or aggravated by his service-connected left leg disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans 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, 3.326(a) (2012). In light of the favorable decision herein as to the issue on appeal, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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). 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. See 38 C.F.R. § 3.310(a) (2012); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 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) medical nexus 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran contends that his current right knee disability is directly related to service, or secondarily related to his service-connected residuals of shell fragment wound (SFW) of his left lower leg. The Veteran's service treatment records (STRs) are devoid of any treatment for any right knee complaints. Musculoskeletal examination performed in November 1972 (at separation) was within normal limits. In December 2009, the Veteran underwent a right knee arthroscopy, chondroplasty, and extensive medial, lateral, and anterior compartment, partial medial and partial lateral meniscectomy due to internal derangement of the right knee with preexisting osteoarthritis and suspected meniscal tears. The operative reported noted the Veteran's complaints of recurring pain and mechanical symptoms in his right knee. In an April 2010 letter from the Veteran's treating physician, he indicated that the Veteran was referred to a specialist due to his internal derangement of the right knee with suspected meniscal tears and preexisting osteoarthritis. The physician opined that these diagnoses were at least as likely as not related to the Veteran's military service. The Veteran was afforded a VA examination of the right knee in June 2010, at which time he reported a two to three year history of right knee pain and problems. He reported a history of favoring his right knee. Following review of the Veteran's claims file and physical examination, the examiner diagnosed the Veteran as having degenerative joint disease of the right knee, status-post arthroscopy, chondroplasty, and partial medial and lateral meniscectomy. The examiner opined that the Veteran's current right knee disability was less likely than not due to any service-connected disability of the left leg. In so concluding, the examiner pointed to the fact that the Veteran had not sought any treatment for complications related to his left leg in 30-40 years. Further, the Veteran reported that he favors his right leg, and not his left, and there are no records showing any complications resulting from the service-connected SFW residuals of the left leg. In addition, the examiner noted that the Veteran denied any trauma to his right knee, and has no degenerative joint disease of the left knee. Additionally, there is no evidence of him favoring his left knee/leg over the past 35 years. The examiner did not provide an opinion with respect to direct service connection. In a letter dated in October 2011, the Veteran's treating orthopedist opined that his right knee disability was caused by his favoring the left leg due to his service-related injury. In so concluding, the orthopedist noted the Veteran's history of favoring his left leg because of the service-related disability, and eventually he had developed progressive arthritis in the right knee resulting in his 2009 surgery. During the Veteran's November 2011 hearing, he recalled experiencing right knee pain for many years and estimated it as being at least 10 years prior. He indicated that his left leg SFW residuals were in his left lower calf area and it caused him to alter his gait. In this case, it is undisputed that the Veteran has degenerative joint disease of the right knee status-post arthroscopy, chondroplasty, and partial medial and lateral meniscectomy, and that he is service-connected for SFW residuals in the left leg. Thus, the key question at issue in this case is whether the Veteran's right knee disability was caused or chronically worsened by his service-connected left knee disability, or whether his right knee disability is directly related to his military service. There is no doubt that the Veteran meets Wallin elements (1) and (2) as the record is clear that he has a right knee disability and he is service-connected for residuals of a SFW to the left lower leg. The remaining issue, therefore, is whether Wallin element (3), evidence of a nexus between the service-connected left leg disability and right knee disability, is met. Based on the evidence of record cited herein, the Board concludes that evidence for and against the claim for service connection for a right knee disability is at least in approximate balance. In other words, the Board finds that, based on this record that the Veteran's right knee disability is as likely the result of his service-connected SFW residuals of the left leg as it is the result of some other factor(s). Notably, the VA examiner's opinion does not include an opinion related to direct service connection. The April 2010 opinion from the Veteran's private treating physician directly relates the Veteran's current right knee disability to his military service, but provides no rationale for his opinion. The October 2011 opinion from the Veteran's private treating orthopedist positively links the Veteran's right knee disability to his left leg disability. He provided a distinct rationale for his opinion, citing the Veteran's reported history of favoring his left leg due to his SFW injury, which ultimately caused the degenerative joint disease of the right knee joint. Based on the competing opinions described above, the Board resolves all doubt in the Veteran's favor and finds that the evidence of record as a whole favors a finding that his right knee disability was aggravated by his service-connected SFW residuals of the left leg. As such, Wallin element (3) and therefore all elements are satisfied. The benefit sought on appeal is allowed. ORDER Service connection for a right knee disability is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs