Citation Nr: 1310754 Decision Date: 04/02/13 Archive Date: 04/11/13 DOCKET NO. 09-14 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a right knee disability, currently diagnosed as status post total knee replacement for degenerative joint disease of the right knee joint, to include as secondary to or aggravated by a service-connected left knee disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. L. Northcutt, Counsel INTRODUCTION The Veteran served on active duty from March 1976 to May 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. While this rating decision addressed numerous claims, the Veteran limited his substantive appeal to his right knee disability service connection claim. Per the Veteran's request, he was scheduled to participate in an RO formal hearing; however, he subsequently withdrew his hearing request. FINDINGS OF FACT 1. The Veteran experienced right knee pain during and continually since service. 2. The Veteran was diagnosed with right knee arthritis after service, and the progression of this disease led to a total right knee replacement. CONCLUSION OF LAW The criteria for service connection for a right knee disability, currently diagnosed as status post total knee replacement for degenerative joint disease of the right knee joint, have been met. 38 U.S.C.A. §§ 1101, 1110, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service Connection The Veteran contends that his right knee disability either developed as the result of, or was significantly aggravated by, his service-connected left knee disability. Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Secondary service connection may be granted for a disability which is proximately due to, or the result of, a service-connected disorder, or for an increase in disability caused by a service connected disorder. 38 C.F.R. § 3.310. Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when they are manifested to a compensable degree within the initial post service year. 38 C.F.R. §§ 3.307, 3.309. Although not acknowledged by the RO, it appears that the majority of the Veteran's service treatment records are not currently associated with his claims file, as only a July 1976 and a March 1977 medical history report are of record. Under such circumstances, there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While these records from early in the Veteran's military career do not reflect his report of experiencing any knee pain, the Veteran has reported that his right knee pain developed at a later stage of his career, in 1984. The Veteran sought and was granted service connection for his left knee disability effective within one year of his discharge from service, and he underwent a left knee surgery in 1993. A December 2001 treatment record reflects the Veteran's first medical treatment for right knee pain and, at this time, the Veteran reported that he had been experiencing right knee pain since 1984, during active service. A December 2001 magnetic resonance imaging (MRI) study of the Veteran's right knee revealed degenerative changes, edema, chondromalacia, and a moderate to large joint effusion. Subsequent treatment records reflect the progression of the Veteran's bilateral knee disabilities, ultimately culminating in a right total knee replacement in May 2007 and a left total knee replacement in September 2007. The Veteran was provided three VA examinations during the pendency of this appeal; however, the examinations are all deficient for various reasons. While the March 2006 VA examination recorded the Veteran's complaints of right knee pain, no diagnosis or etiology opinion was offered with regard to the Veteran's right knee disability. The October 2006 VA examination report reflects a diagnosis of a right knee degenerative arthritis, and the Veteran's report of the onset of his right knee pain during service. The examiner opined that the Veteran's right knee disability was unrelated to his service-connected left knee disability, as the onset of the Veteran's bilateral knee pain was during service, indicating that the two knee disabilities developed concurrently and independently of each other. This opinion is insufficient as it fails to address whether the Veteran's right knee disability, with reported onset during service, is directly related to service, or whether the Veteran's service-connected left knee disability aggravated the Veteran's right knee disability. The August 2008 VA examination report reflects that the VA examiner diagnosed the Veteran with status-post total right knee replacement for degenerative joint disease of the right knee joint; however, the examiner merely (inartfully) rearticulated the medical opinion of the October 2006 VA examiner. In support of his claim, the Veteran has submitted three letters, dated in January 2008, April 2008, and May 2009, authored by his treating private family practitioner and his treating private orthopedist. In the January 2008 letter, the Veteran's family practitioner states that the Veteran developed his right knee disability as the result of his left knee disability, but offers no supporting rationale for this opinion. In the April 2008 and May 2009 letters, the Veteran's treating orthopedist states that the Veteran's right knee disability has been aggravated by his overcompensation for his service-connected left knee disability. In support of this opinion, the orthopedist explained that the Veteran's service-connected left knee disability caused him to overuse his right knee, and that the strain on the Veteran's right knee increased as his left knee disability increased in severity, thereby causing a progressive aggravation of his right knee disability. The Board finds that the orthopedist's medical opinions, which are supported by a reasoned rationale, are sufficient to establish a basis for awarding service connection for the Veteran's right knee disability on the basis of aggravation. See Neves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (holding that to have probative value, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two). However, inasmuch as the Veteran's compensation would be limited to the degree in which a medical professional determines that his left knee disability aggravates his right knee disability, see 38 C.F.R. § 3.310(b), the Board concludes that it would be more beneficial to the Veteran to be awarded service connection on a direct basis. As the majority of the Veteran's service treatment records are unavailable they cannot provide any support of the Veteran reporting right knee symptoms during service. The Veteran first reported the onset of right knee pain during service when he sought medical treatment in 2001. Significantly, the Veteran did not claim service connection for his right knee disability until 2006; this report of in-service occurrence predates his claim for compensation by approximately five years. The Veteran is competent to report the onset and continuity of his right knee pain, as such are capable of lay observation. See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (a lay person is competent to report symptoms based on personal observation when no special knowledge or training is required). The Veteran's assertions regarding the onset of his right knee pain during service, and the continuity of his right knee pain since service, are credible, as he initially made this report approximately five years prior to seeking monetary compensation for a service-related right knee disability, and as his assertions have largely remained consistent over time. C.f. Cromer v. Nicholson, 19 Vet. App. 215 (2005) (finding a history, provided by a veteran, that had varied over time was not credible). As the Veteran's current right knee disability has been determined to be the result of the progression of his right knee arthritis, the Veteran may establish eligibility for service connection based on his credible reports of continuity of symptomatology since service. 38 C.F.R. §§ 3.303(b), 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that a veteran's reports of continuity of symptomatology may serve to establish service connection pursuant to 38 C.F.R. § 3.303(b) for chronic diseases enumerated in 38 C.F.R. § 3.309(a), such as arthritis). Service connection for a right knee disability on a direct basis, currently diagnosed as status post total knee replacement for degenerative joint disease of the right knee joint, is warranted. ORDER Service connection for a right knee disability, currently diagnosed as status post total knee replacement for degenerative joint disease of the right knee joint, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs