Citation Nr: 1318371 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-12 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for right foot arthritis, claimed as secondary to service-connected bilateral knee disability. 2. Entitlement to service connection for left shoulder arthritis, claimed as secondary to service-connected bilateral knee disability. 3. Entitlement to service connection for right hip arthritis, claimed as secondary to service-connected bilateral knee disability. 4. Entitlement to service connection for arthritis of the upper and lower spine, claimed as secondary to service-connected bilateral knee disability. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active military service from September 1940 to September 1945 and from September 1950 to June 1952. This appeal to the Board of Veterans' Appeals (BVA or Board) originated from a June 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was remanded in September 2009, May 2010, July 2011, and November 2012 for additional development. The Veteran was afforded a Travel Board hearing in June 2009 before an Acting Veterans Law Judge who is no longer employed by the Board. In October 2012, the Board informed the Veteran of this and that he would be afforded another Board hearing, if desired. Later, in October 2012, the Veteran informed the Board of his desire for a hearing before a Veterans Law Judge at the RO. The hearing was held before the undersigned in April 2013. A transcript of this hearing is associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. There is credible medical evidence of record that shows that right foot arthritis was caused by service-connected bilateral knee disability. 2. There is credible medical evidence of record that shows that left shoulder arthritis was caused by service-connected bilateral knee disability. 3. There is credible medical evidence of record that shows that right hip arthritis was caused by service-connected bilateral knee disability. 4. There is credible medical evidence of record that shows that arthritis of the upper and lower spine was caused by service-connected bilateral knee disability. CONCLUSIONS OF LAW 1. Right foot arthritis is proximately due to or the result of service-connected bilateral knee disability. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2012). 2. Left shoulder arthritis is proximately due to or the result of service-connected bilateral knee disability. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2012). 3. Right hip arthritis is proximately due to or the result of service-connected bilateral knee disability. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2012). 4. Arthritis of the upper and lower spine is proximately due to or the result of service-connected bilateral knee disability. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Pertinent Laws and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In order to establish service connection for a claimed disorder, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b) (2011). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2011). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a compensable degree within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated by service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA amended 38 C.F.R. § 3.310 to implement Allen v. Brown, 7 Vet. App. 439 (1995). The amendment sets a standard by which a claim based on aggravation of a nonservice-connected disability by a service-connected one is judged. Although the overall intention of the amendment to 38 C.F.R. § 3.310 was to implement the Allen decision, the amended 38 C.F.R. § 3.310(b) clearly institutes additional evidentiary requirements and hurdles that must be satisfied before aggravation may be conceded and service connection granted. The Court in Allen was not concerned with, and did not address, such an evidentiary requirement. The Veteran's claim was filed in March 2006 so the prior version should be applied. Analysis The medical evidence of record shows that the Veteran has arthritis of the right foot, left shoulder, right hip, and upper and lower spine. As for whether the arthritis is caused or aggravated by the Veteran's service connected bilateral knee disability, there is unfavorable and favorable medical opinion evidence of record. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). The record also reflects that the Veteran is service-connected for right ankle strain. By way of background, the Board notes that the Veteran injured his left knee when jumping off of a bridge while under fire while wearing a pack that he has estimated to have weighed between 80 and 100 pounds. The Veteran's service treatment records confirmed that the Veteran injured his left knee in July 1943 when jumping 25 feet off of a bridge while under small arms fire. A record from June 1952 indicated that the Veteran first injured his left knee while running in 1941 and that he presently exhibited marked instability of the medial and lateral ligaments. During the pendency of this claim, a number of VA examinations have been performed. Most recently, the Veteran was afforded a VA examination in March 2010. According to the examiner, the Veteran had a misunderstanding that degenerative joint disease was a "progressive" disease and that it did not progress from one joint to the other. The examiner indicated that there were no peer reviewed studies to support the Veteran's contention that degenerative changes in one joint may induce degenerative changes in another joint. The examiner subsequently provided a negative opinion as to etiology, and this opinion was reiterated in addendums in May 2011 and August 2011. In these addendums, the examiner further explained that it was less likely as not that the Veteran's arthritis of the lower extremities caused, or aggravated, his currently claimed disabilities. Having reviewed the remaining evidence, however, there appears to be contradictions relating to the above opinions. According to a March 2002 VA contract examiner, the Veteran's arthritis of the right knee was in fact caused by his left knee arthritis. A May 2006 VA examiner further opined that the Veteran's right knee arthritis was due to overcompensation due to the left knee. Finally, a July 2008 VA contract examiner concluded that the Veteran's right ankle strain was due to overcompensation from the left knee. These opinions seem to suggest that overcompensation from one joint can in fact result in injury or degeneration of another joint. The Veteran has also submitted an opinion from a private physician with the initials V.P. dated August 2006. According to this physician, the Veteran's arthritis of the right foot and the upper extremities was "obviously secondary to having arthritis in his knees which in turn makes his ankles hurt due to his inability to walk adequately." Dr. V.P. noted that the Veteran definitely limped on his left side. The Veteran also submitted an October 2012 private medical opinion from Dr. D.D. Dr. D.D. indicated that the Veteran was currently being seen for end stage osteoarthritis of the right knee. Dr. D.D. indicated that the Veteran had a valgus arthritic knee that was end stage with bone on bone arthritis. Dr. D.D. maintained that the Veteran was having issues with his back and his hip as a result of this valgus deformity and that he had developed posterior tibial insufficiency that he compensated for the valgus deformity in his knee. Dr. D.D. maintained that the Veteran also was at risk for developing osteoarthritis in other joints and he already had some in his back and right hip. Thus, the private medical opinions find that the Veteran developed arthritis as the result of altered body mechanics on account of the service connected knee disability. It is precisely this theory of causation upon which service connection was awarded for the right knee disability (secondary to service connected left knee disability) and right ankle disability (secondary to service connected left knee disability). In light of all the foregoing, the Board finds that there is credible medical evidence of record that shows that the arthritis was caused by service-connected disability. Accordingly, service connection is warranted for right foot arthritis, left shoulder arthritis, right hip arthritis, and arthritis of the upper and lower spine secondary to service-connected bilateral knee disability. ORDER Service connection for right foot arthritis secondary to service-connected bilateral knee disability is granted. Service connection for left shoulder arthritis secondary to service-connected bilateral knee disability is granted. Service connection for right hip arthritis secondary to service-connected bilateral knee disability is granted. Service connection for arthritis of the upper and lower spine secondary to service-connected bilateral knee disability is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs