Citation Nr: 1312308	
Decision Date: 04/15/13    Archive Date: 05/02/13

DOCKET NO.  09-37 250	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to service connection for residuals of a total left knee replacement disability, to include as secondary to service-connected right total knee arthroplasty disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

William Alan Nelson II, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1966 to June 1968.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.  

The Board notes that in addition to claiming service connection for residuals of a left total knee replacement disability, he also claimed entitlement to a temporary total evaluation because the left knee disability resulted in surgery requiring convalescence.  See 38 C.F.R. § 4.30 (2012).  The RO never reached the question of entitlement to a temporary total rating because it denied the underlying service connection claim on the merits.  In the decision herein, the Board grants service connection.  As such, the issue of entitlement to a temporary total evaluation is no longer moot and must be considered by the RO in the first instance upon effectuating the Board's decision.  This issue is referred to the RO for appropriate action.  


FINDING OF FACT

The Veteran's left knee disability is causally related to his service-connected right knee disability.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the left knee disability is secondary to service-connected right knee disability.  38 U.S.C.A. §§ 1101, 1110, 1154, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.310 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

Service Connection Laws and Regulations

Establishing 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).   

Service connection may also be granted for a disability that is proximately due to or aggravated by a service-connected disability.  See 38 C.F.R. § 3.310(a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  

Service Connection for Left Knee Disability

A review of the service treatment records show no evidence of complaints of or treatment for a left knee injury or left knee disorder symptoms during service.  The Veteran does not contend otherwise.  Indeed, he asserts that his left knee disability is the direct result of his service-connected right knee disability.  As such, service connection on a direct basis is not warranted.  

The Veteran is service connected for right knee disability, characterized as status post total right knee arthroplasty.  The Board finds that the evidence is in relative equipoise on the question of whether the Veteran's left knee disability is proximately due to or aggravated by his service-connected right knee disability.  That is, there is evidence both for and against the claim.  

For instance, in a September 20008 VA treatment record, the VA examiner opined that it was more than likely that the left knee progression and pain were related to the right knee, as the Veteran favored the right knee for years in his gait.  In addition, in a private December 2008 treatment record, a private examiner opined that it was entirely reasonable that the left knee would not have progressed as rapidly as it did due to the fact he was favoring his right knee and putting more stress on his left knee.  In a March 2009 VA treatment record, the VA examiner opined that the progressive left knee pain and rapid left knee deterioration likely occurred due to the fact that the Veteran was favoring his right knee and thus stressing the left knee.  Finally, in a July 2009 private treatment record, an examiner opined that the injuries the Veteran sustained from the service-connected right knee disability contributed directly to progression of pain and deformity of the left knee and that treatment needed for the Veteran's left knee is related to his service-connected right knee.

This evidence supports the claim.  

However, in an April 2009 opinion, a VA examiner opined that the left knee disability was less likely than not caused by or the result of right knee disability.  The VA examiner reasoned that the left knee disability was caused by daily stress, age-related changes, and the constant strain of morbid obesity.  The VA examiner also reasoned that the right knee replacement in 2001 likely relieved stress on the left knee.  

This evidence is against the claim.  

The VA and private opinions of record are competent and probative medical evidence because they are factually accurate, as it appears the examiners were informed of the relevant evidence in this case, relied on accurate facts, and gave fully articulated opinions that are supported by a sound reasoning.  As the weight of the competing medical opinions are in relative equipoise, the Board will resolve reasonable doubt in the Veteran's favor to find that the current left knee disability is causally related to the service-connected right knee disability.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be 
given to the claimant.  38 U.S.C.A. § 5107(b).  For these reasons, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warranted for left knee disability as secondary to service-connected right knee disability.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  

The claim of service connection for a left knee disability has been considered with respect to VA's duties to notify and assist.  Given the favorable outcome noted above, no conceivable prejudice to the Veteran could result from this decision regarding those claims.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).



ORDER

Service connection for residuals of a total left knee replacement disability, as secondary to service-connected residuals of a total right knee arthroplasty disability, is granted.



____________________________________________
MATTHEW D. TENNER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs