Citation Nr: 1326831 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-15 165A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for a left knee disorder. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from August 1975 to August 1978 and from May 1981 to March 1983. These matters are before the Board of Veterans' Appeals (the Board) on appeal of a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for a left knee disorder with an initial disability rating of 10 percent, and a September 2010 rating decision which granted service connection for an incisional hernia with an initial noncompensable disability rating; a scar an initial 10 percent disability rating; and denied service connection for diabetes mellitus and a right knee disorder. The Veteran only perfected an appeal as to that issues of entitlement to a higher initial disability rating for a left knee disorder, and service connection for a right knee disorder. As noted below, the Veteran's claim for a higher initial disability rating for his left knee disorder is being remanded for additional development. Concerning the claim for service connection for a right knee disorder, since the issuance of the last Supplemental Statement of the Case in May 2012, the Veteran has submitted additional evidence without a waiver of initial RO consideration. However, as this additional evidence pertains to the Veteran's prior liver transplant, it is not relevant to his claim regarding his right knee. As such, no useful purpose would be served in remanding the claim for service connection for a right knee disorder for yet more development. Such a remand of this issue would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Concerning this newly submitted evidence, the Veteran specified that he was submitting the evidence for consideration "in my claim for unemployability." As such, the issue of entitlement to a total disability rating based on individual unemployability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to a higher initial disability rating for a left knee disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The competent and credible evidence of record is in equipoise as to whether the Veteran's currently diagnosed right knee disorder was incurred secondary to his service-connected left knee disorder. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, a right knee disorder was incurred in active duty military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the provisions of the Veterans Claims Assistance Act of 2000 (VCAA). The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. A VCAA notice letter was sent to the Veteran regarding his claim for service connection for a right knee disorder in August 2010. The Board need not discuss in detail the sufficiency of this VCAA notice letter in light of the fact that the Board is granting the Veteran's claim below. Any potential error on the part of VA in complying with the provisions of the VCAA has essentially been rendered moot by the Board's full grant of the benefit sought on appeal addressed in this decision. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). Accordingly, the Board will proceed to a decision. II. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for a disability that is proximately due to or the result of an established service- connected disability. 38 C.F.R. § 3.310 (2012). This includes disability made chronically worse by service- connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board notes that there was an amendment to the provisions of 38 C.F.R. § 3.310. 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 a service-connected one is judged. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran's primary argument is that he has a right knee disorder secondary to his service-connected left knee disorder. See January 2010 claim and September 2010 notice of disagreement. A review of the evidence of record shows that the Veteran clearly has a current diagnosis of degenerative joint disease of the right knee. Therefore, the salient question to be answered is whether that currently diagnosed right knee disorder was caused by his service-connected left knee disorder. In this matter, there are three medical opinions of record, each of which will be reviewed below. In August 2010, the Veteran was afforded a VA compensation and pension examination. The examiner performed an examination and reviewed prior radiology and MRI findings. A diagnosis of right knee osteoarthritis-mild to moderate was given. The examiner opined that the Veteran's degenerative changes and MRI findings in his right knee were more likely due to his age and 20-year history of construction and carpentry work. He felt that the right knee disorder was less likely than not caused by the left knee disorder. While this evidence weighs against the claim, the Board has afforded this opinion less probative value due to contradictory findings that exist within the examination report. For example, at one point in the report, the examiner remarked that he observed crepitus in the Veteran's right knee; shortly afterwards, the examiner noted that there was no crepitus in the right knee. As such, it is unclear how thoroughly the examiner examined the Veteran, and the August 2010 VA examination report is not entitled to the probative value assigned the other two medical opinions of record. The Veteran submitted an August 2010 letter from B.L.S., M.D.. Dr. S. noted that the Veteran had arthritic changes and a possible loose body in his left knee. She further observed changes of both menisci which could be degenerative or represent tears. She said that the Veteran had been favoring his left leg for several years which caused increased pain in his right knee. The given opinion supports the Veteran's claim. It was offered by a medical doctor who had examined the Veteran and gave a rationale for the given opinion. The report is not contradictory and is assigned great probative value. A September 2011 treatment record from M.J.F., D.O., reflects that the Veteran had internal derangement and degenerative joint disease of the right knee. Dr. F. also noted the severe degenerative joint disease in the Veteran's left knee. After examining the Veteran, Dr. F. opined that it was more likely that the Veteran's right knee was deteriorating from an altered gait due to his left knee disorder. The opinion given was based on an examination of the Veteran, and the examiner gave a rationale for his opinion. The findings recorded in this treatment record are not contradictory. As such, this report is also assigned great probative value. In evaluating the probative value of competent medical opinion evidence, the Court has stated in pertinent part: "The probative value of medical evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches...As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator..." See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Likewise, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The medical opinions of record appear to be in equipoise. In light of the fact that the Veteran is currently diagnosed with degenerative joint disease of the right knee; and in light of the most persuasive medical opinions that the Veteran's right knee disorder was caused by an altered gait due to his service-connected left knee disorder, the Board finds that the evidence is, at the very least, in relative equipoise as to whether the Veteran's right knee disorder was incurred secondary to his left knee disorder. Therefore, the Board will resolve doubt in favor of the Veteran and grant the Veteran's claim. In summary, for the reasons explained above, having resolved doubt in favor of the Veteran, service connection for a right knee disorder is warranted. ORDER Entitlement to service connection for a right knee disorder is granted. REMAND Concerning the Veteran's claim for an initial disability rating in excess of 10 percent for a left knee disorder, the Board notes that the Veteran last underwent VA compensation and pension examination in October 2011. Medical records contained in the Veteran's Virtual VA file reflect that he underwent a left knee arthroscopy in June 2012. In light of the Veteran's left knee surgery, the Board finds that a new VA examination is needed to properly assess the current level of severity of the Veteran's left knee disorder. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to undergo a VA examination to determine the current severity of his service-connected left knee disorder. The claims folders must be thoroughly reviewed by the examiner in connection with the examination, and a complete history should be elicited directly from the Veteran. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should describe all pertinent symptomatology associated with the Veteran's left knee disorder and should provide the following information: a. The examiner should specifically state range of motion findings using a goniometer, and indicate on the examination report that a goniometer was used; b. The examiner should comment on whether this disability exhibits weakened movement, excess fatigability, incoordination, or pain on use attributable to the service-connected left knee (if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to these symptoms); c. The examiner should discuss whether pain significantly limits functional ability during flare-ups or following repeated use (these determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups); and d. The examiner should opine should describe the severity of the Veteran's subluxation or lateral instability of the left knee. 2. Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim based on consideration of all of the evidence received since the claim was last adjudicated in May 2012. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs