Citation Nr: 1315544 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 06-11 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a left knee disorder, to include as secondary to a service-connected right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to January 1968, and had subsequent periods of active duty for training (ACDUTRA) and likely (INACDUTRA) through the time of his discharge from the United States Marine Corps Reserves in August 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. The Veteran appeared and testified before a Veterans Law Judge (VLJ) sitting at the RO in August 2007. A transcript of that hearing is of record. In a March 2013 letter, the Board informed the Veteran that the VLJ who conducted the August 2007 hearing was no longer with the Board. The letter indicated that the Veteran had the right to a hearing before another VLJ and that if he did not respond within 30 days, the Board would assume he did not want another hearing. The Veteran did not respond and the Board will accordingly address the service connection claim on the merits. The issue of entitlement to service connection for a right ankle disorder was previously included as an issue on appeal. The issue was remanded in November 2009 and January 2012. In a September 2012 decision, the Appeals Management Center (AMC) granted service connection for a right ankle disability and assigned the effective date as the date of the Veteran's claim. Therefore, the issue is no longer before the Board for appellate consideration. The matter was previously before the Board and remanded for additional development of the evidence in November 2009 and January 2012. The Board finds substantial compliance with the requirements articulated in the Board's prior remand decisions. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). FINDING OF FACT Resolving doubt in favor of the Veteran, his left knee disorder is shown to be causally related to his service-connected right ankle disability. CONCLUSION OF LAW A left knee disorder is proximately due to or the result of a service-connected disability. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). See also 73 Fed. Reg. 23,353-23,356 (April 30, 2008) (concerning revisions to 38 C.F.R. § 3.159). Given the favorable disposition of the claim for service connection for a left knee disorder, to include as secondary to service-connected right ankle disability, the Board finds that all notification and development actions needed to fairly adjudicate the claim have been accomplished. Service Connection Laws and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection shall be awarded when a disability 'is proximately due to or the result of a service-connected disease or injury.' 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board observes that the provisions of 38 C.F.R. § 3.310 were amended effective as of October 20, 2006, during the pendency of the instant appeal. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006). The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by service-connected one is judged. Although the VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the Veteran to establish a pre-aggravation baseline level of disability for the non-service connected disability before an award of service connection based on aggravation may be made. This had not been the VA's practice and thus suggests that the recent change amounts to a substantive change in the regulation. For this reason and as the Veteran's claim was pending before the regulatory change was made, the Board will consider his claim under the prior version of 38 C.F.R. § 3.310 as it is more favorable to the Veteran. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual Background and Analysis The Veteran contends that he has a current left knee disorder due to service-connected right ankle injury. Service treatment records, including a July 1967 enlistment and January 1968 separation examination reports, are negative for any complaints, treatment, or diagnosis of a left knee disorder. In a January 1969 annual examination for the Marine Corps Reserves, the Veteran reported that when he was 13 years old, his right knee had been operated on for chipped cartilage and his left knee was supposed to be operated on as well, but never was. The examiner noted a knee operation in 1961, not bothered since. A January 1969 examination was normal for lower extremities. In a June 1971 service personnel records, the Veteran was found not physically qualified for retention in the Naval or Marine Corps Reserve because of marked inversion, right ankle, status post surgery, symptomatic. A private treatment record dated in October 2005 indicated the Veteran had three surgeries on his left knee. First, in December 1978, the Veteran underwent patellar tendon repair and screw after an injury while playing tennis. The Veteran underwent additional surgeries in April 1979, 1997, and 1999. In June 2000, the examiner noted that they "redid" his patella. A letter submitted in October 2005 from Dr. G., D.C., indicated that the Veteran has chronic left knee injury from 1978 which resulted in a torn patella that occurred when the right ankle buckled from his old injury. He has had four knee surgeries on the left knee since that time. Due to the limp on the right foot, he tends to compensate using his left leg especially while golfing which puts an excess amount of stress on the left injured knee. In a February 2006 VA progress note, the examiner noted the Veteran has a history of hip asymmetry with occasional low back pain, treated effectively by chiropractor and chronic pain in the right ankle and bilateral knees. The diagnosis was chronic arthralgias. During an August 2007 Board hearing, the Veteran testified that in December 1978 he was playing tennis and his right ankle went out from under him. He reported he fell straight forward, hyperextended his knee, and tore the patella tendon above the kneecap. He had immediate surgery and rehabilitation. He reported additional surgeries to the knee since that time. In a January 2012 VA examination report, the diagnosis was left knee sprain. The examination report indicated that x-ray testing showed degenerative joint disease with post-operative changes. Physical examination revealed limitation of motion and painful motion of the left knee. The examiner opined that the left knee is less likely as not related to the military as there is no documentation in his records that his right ankle condition caused his left knee condition and his left knee condition started after military service. With regard to the issue of whether the Veteran's left knee disability was caused or aggravated by his service-connected right ankle disability, the Board has considered the conflicting medical opinions on the matter. The Veteran's private chiropractor, Dr. G., provided a positive nexus between the Veterans's left knee disorder and his right ankle disability. The chiropractor appears to base her opinion on her own examination of the Veteran as well as the Veteran's credible statements that he initially injured his left knee when his right ankle gave out. On the other hand, in January 2012, the VA physician provided an opinion against the Veteran's claim. The physician found that there was no relationship between the Veteran's left knee disability and his right ankle disability. The physician specifically stated that the record did not show that his left knee injury occurred at during service, and there is no objective evidence that his right ankle disability caused his left knee disorder. The Board is concerned, however, that the physician did not discuss or reconcile his conclusion with the Veteran's own statements that his left knee disorder was due to an injury caused by his right ankle or with the opinion of the Veteran's private chiropractor that his left knee symptoms were due to the Veteran's service-connected right ankle. For this reason, the Board concludes that there is at least an approximate balance of positive and negative evidence as to whether the Veteran has a left knee disability that is caused by his service-connected right ankle disability. Thus, resolving doubt in favor of the Veteran, the Board concludes that service connection must be granted for his left knee disability. ORDER Entitlement to service connection for a left knee disorder, to include as secondary to service-connected psychiatric right ankle disability, is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs