Citation Nr: 1327218 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 05-35 542A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for status post rotator cuff repair and degenerative joint disease (DJD) of the left shoulder, secondary to the service-connected bilateral knee disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to September 1991 and from December 1993 to March 1997. This matter comes before the Board of Veterans' Appeals (Board) from a November 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied the Veteran's claim of entitlement to service connection for a left shoulder disability, secondary to his service-connected bilateral knee disabilities. The Board remanded the claim for additional development in August 2008, August 2009, and August 2010. FINDING OF FACT The Veteran was injured in a fall while walking down a flight of stairs in July 2003, which resulted in his current left shoulder disability; based on the Veteran's personal account of the fall which the Board finds credible, the weight of the evidence demonstrates that the Veteran's service-connected bilateral knee disabilities caused his knees to give out causing him to fall. CONCLUSION OF LAW The requirements for secondary service connection for status post rotator cuff repair and degenerative joint disease (DJD) of the left shoulder are met. 38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board grants service connection for status post rotator cuff repair and DJD of the left shoulder, which represents a complete grant of the benefit sought on appeal. As such, no discussion of VA's duty to notify and assist is necessary. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, service connection is in effect for status post right knee patellofemoral trochlea replacement due to posttraumatic osteoarthritis, status post left knee degenerative arthritis, and right knee and left knee instability. The Veteran contends that his left shoulder disability developed as a result of problems associated with his service-connected knee disabilities. Specifically, the Veteran asserts that his current left shoulder disability stems from a July 2003 work injury in which his left knee gave out while walking down a flight of stairs, causing him to fall down one flight of stairs, injuring his left shoulder. The record reflects that in July 2003 the Veteran fell down a flight of stairs while at work. The records associated with this injury show that the Veteran injured his left shoulder in the fall. Specifically, he tore his left rotator cuff, which required surgical repair, and sustained degenerative joint disease of the left shoulder. Subsequent treatment records show that the Veteran consistently related the shoulder injury to his knees having given out. The record otherwise reflects that the Veteran's knees are unstable, and he experiences frequent giving way of his knees. Treatment records also demonstrate that he has an uneven gait pattern as a result of his knees, and that he has reported difficulty both ascending and descending stairs. As noted in the August 2009 Board remand, the Veteran was afforded a VA examination in November 2008. The report of that examination reflects that the examiner, who indicated that he was unable to review the Veteran's records, determined that it was less likely than not that the fall was caused by the Veteran's service-connected knee disabilities. The examiner reasoned that because there was no objective evidence of weakness of the knees, and the Veteran's reflexes should have prevented him from falling, it was unlikely that the fall was related to his knees. In rendering this opinion, the November 2008 examiner did not consider the Veteran's statements regarding his knees having given out while on the stairs, his general history of instability of the knees, or that he experiences frequent giving way of his knees. Nor does it appear that the examiner considered the treatment records demonstrating that he has an uneven gait pattern as a result of his knees, and that he has reported difficulty both ascending and descending stairs. It appears that the examiner instead relied solely upon clinical evidence obtained at the time of the November 2008 examination. Because the examiner did not consider the history provided by the Veteran, the Board determines that the examination is not adequate for rating purposes, and affords the opinion no probative weight. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of service medical records to provide a negative opinion). Following the Board's August 2009 remand, the Veteran was afforded a VA examination in December 2009. The December 2009 examination report, however, does not contain an assessment from the VA examiner regarding onset and/or etiology of the Veteran's left shoulder disability. Indeed, the examiner who conducted the examination stated that a medical opinion was not requested. The Board concludes that service connection for a left shoulder disability is warranted as secondary to service-connected bilateral knee disabilities. The Veteran is competent to report the circumstances from a fall, and medical records document that the fall resulted in his current left shoulder disability. Based on the Veteran's personal account of the fall which the Board finds credible, the Board finds that the credible and probative evidence demonstrates that the Veteran's current status post rotator cuff repair and DJD of the left shoulder was caused by the service-connected knee disabilities, the "benefit of the doubt" rule need not be applied, and the Board will grant the service connection claim on a secondary basis. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board is granting secondary service connection for status post rotator cuff repair and DJD of the left shoulder, and this is the greatest benefit the Veteran can receive under the circumstances. Any failure to notify or assist him is inconsequential and, therefore, at most, no more than harmless error. ORDER Service connection for status post rotator cuff repair and DJD of the left shoulder, secondary to the service-connected bilateral knee disabilities, is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs