Citation Nr: 1328018	
Decision Date: 09/03/13    Archive Date: 09/10/13

DOCKET NO.  09-15 400	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a right knee disability, to include as secondary to service-connected left knee disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. M. Schaefer, Counsel

INTRODUCTION

The Veteran served on active duty from April 1986 to June 1988.

This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.  In July 2011, the Board remanded the appeal for further development of the claim, and it now returns to the Board for appellate review.

In July 2010, the Veteran testified at a hearing before the undersigned Veterans Law Judge, sitting at the RO.  A transcript of the hearing is associated with the claims file.


FINDING OF FACT

Resolving all reasonable doubt in the Veteran's favor, right knee osteoarthritis has been aggravated by his left knee disability. 


CONCLUSION OF LAW

The criteria for service connection for right knee osteoarthritis as secondary to service-connected left knee disability have been met.  38 U.S.C.A. §§ 101(24), 1101, 1112, 1113, 1116, 1131, 1137, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.301, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

This case was remanded by the Board in July 2011.  The United States Court of Appeals for Veterans Claims (Court) has held "that a remand by this Court or the Board confers on the Veteran or other claimant, as a matter of law, a right to compliance with the remand orders."  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The purpose of the July 2011 remand was to associate service treatment records with the file and to schedule the Veteran for a VA examination.  A review of the post-remand record shows that the Veteran's service treatment records were added to the claims file and that the VA examination was completed in October 2011.  Therefore, the Board determines that the RO/AMC substantially complied with the Board's orders in the July 2011 remand, and that the Board may now proceed with adjudication of the claim.

The Veterans Claims Assistance Act of 2000 (VCAA) imposes certain duties upon VA to notify the claimant of the shared obligations of the claimant and VA in developing his or her claim and to assist the claimant by making reasonable efforts to obtain relevant evidence in support of the claim.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The VCAA requires that VA inform a claimant about the information and evidence not of record that is necessary to substantiate the claim, the information and evidence that VA will seek to provide, and the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1) (revised 73 Fed. Reg. 23353-23356, April 30, 2008); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Additionally, in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court held that VCAA notice requirements also apply to the evidence considered in determinations of the degree of disability and effective date of the disability once service connection has been established.  

VCAA notice must be provided before the initial unfavorable AOJ decision on the claims for VA benefits.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In this case, the Veteran was provided with a VCAA notification letter in September 2007, prior to the initial unfavorable AOJ decision issued in January 2008.  The pre-adjudicatory VCAA notice informed the Veteran of the evidence necessary to establish service connection, of how VA would assist him in developing his claim, and his and VA's obligations in providing such evidence for consideration.  This letter also included information regarding the substantiation of disability ratings and effective dates.  Therefore, the Board finds that the Veteran received all necessary VCAA notice prior to the initial adjudication of his claim.  

Accordingly, the Board determines that the content requirements of VCAA notice have been met and the purpose of such notice, to promote proper development of the claim, has been satisfied.  See Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006).  Based on the above, the Board finds that further VCAA notice is not necessary prior to the Board issuing a decision.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 
§ 3.103(c)(2) (2012) requires that the Veterans Law Judge or Decision Review Officer who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board hearing, the VLJ advised the Veteran that he needed to speak about how it is related to the left knee and supply any medical evidence he had to that effect and/or to how his right knee was directly related to something in service.  The Veteran then gave extensive testimony on his current right knee symptoms and how he has compensated for his left knee with his right knee and leg.  Additionally, submission of competent medical opinions as to a relationship between the right and left knee disabilities was discussed.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  Neither the representative nor the Veteran has suggested any deficiency in the conduct of the hearings.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

VA has also fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim and providing him with a VA examination.  The Veteran's service treatment records, VA medical records, and the report of the October 2011 VA examination were reviewed by both the AOJ and the Board in connection with adjudication of the claim.  The Veteran has not identified any additional, relevant treatment records the Board needs to obtain for an equitable adjudication of the claim.  
With regard to the VA examinations, the Board notes that once VA undertakes to provide a VA examination, it must ensure that the examination is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The adequacy of the VA examinations is discussed in further detail below.   

In light of the above, the Board concludes that the medical evidence of record is sufficient to adjudicate the Veteran's claim without further development and additional efforts to assist or notify the Veteran in accordance with VCAA would serve no useful purpose.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran).  Therefore, the Board determines that the Veteran will not be prejudiced by the Board proceeding to the merits of the claim.

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. § 1131.  Connecting the disability to service may be accomplished through statutory presumption or through affirmative evidence that shows inception or aggravation during service or that otherwise indicates a direct relationship between service and the current disability.  38 C.F.R. §§ 3.303(a), (d).    

The statutory presumptions and VA regulations implementing them are intended to allow service connection for certain diseases when the evidence might otherwise not indicate service connection is warranted.  See 38 C.F.R. § 3.303(d).  Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including arthritis, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.  

Further, with chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes.  38 C.F.R. § 3.303(b).  For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time.  Id.  When the disease identity is established (arthritis, hypertension, leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity.  Id.  For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. 
§ 3.309(a)).

However, presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection.  38 C.F.R. § 3.303(d).  Direct service connection may be granted for disease or disability diagnosed in service; or, if diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  Id.    

In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)).  In many cases, medical evidence is required to meet the requirement that the evidence be "competent".  However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation.  Barr, 21 Vet. App. at 309.

Each disorder for which the Veteran seeks service connection must be considered on the basis of the places, as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence; a veteran's lay statements may be sufficient evidence in any claim for service connection.  38 C.F.R. § 3.303(a); see also 38 U.S.C. § 1154(a) (requiring VA to include in its service connection regulations that due consideration be given to "all pertinent medical and lay evidence").  A veteran's lay statements may be sufficient evidence in any claim for service connection.

Service connection may be granted for disability arising from disease or
Disability which is proximately due to or the result of service-connected disease or injury shall be service-connected.  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  38 C.F.R. § 3.310(a).  

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.  However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.  The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.  38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995).

The Veteran contends that his current right knee disability is the result of compensation for his left knee disability.  Therefore, he argues that service connection is warranted for a right knee disability on a secondary basis and has not claimed direct service connection.  At his July 2010 hearing, the Veteran asserted only a claim for secondary service connection.  He testified that his right knee has been getting worse over the past few years based on overuse and compensation for his service-connected left knee disability.  He made no attempt to link his right knee disability directly to service or to any injury or incident in service.  Therefore, the Board will not address direct service connection.

The Veteran's arthritis of the right knee was not diagnosed or manifested to a compensable degree within one year of discharge in June 1988.  Therefore, service connection on a presumptive basis is not warranted.  

The VA examiner in October 2011 offered an opinion on secondary service connection that the Veteran's right knee osteoarthritis is less likely as not proximately due to or the result of the service-connected left knee disability.  The rationale for this opinion was that there is no significant medical evidence that osteoarthritis is directly caused by contralateral knee osteoarthritis, although the examiner acknowledged that left knee pain and dysfunction could theoretically lead to increased biomechanical stresses on the right knee.  Given that the examiner considered principles of biomechanics in forming the opinion, the Board finds the opinion adequate.  Id.  The Veteran has not supplied a contradictory competent medical opinion; thus, the Board finds that the preponderance of the evidence is against a determination that the Veteran's service-connected left knee disability caused his right knee disability.    

Nevertheless, the Board finds that it is at least as likely as not that the Veteran's right knee osteoarthritis has been aggravated by his service-connected left knee disability.  There are contradictory opinions in this regard.  The Board must determine, as a question of fact, both the weight and credibility of the evidence.  Equal weight is not accorded to each piece of material contained in a record; every item of evidence does not have the same probative value.  The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence.  See Struck v. Brown, 9 Vet. App. 145, 152 (1996).

Service connection has been in effect for a left knee disability since June 1988. 
A VA examination was performed in October 2011.  The examiner offered an opinion on secondary service connection that the Veteran's right knee osteoarthritis is less likely as not proximately due to or the result of the service-connected left knee disability.  The rationale for this opinion was that there is no significant medical evidence that osteoarthritis is directly caused by contralateral knee osteoarthritis.  However, while the examiner noted the Veteran's report that he puts more stress on the right knee due to the left knee pain and dysfunction and that this could theoretically lead to increased biomechanical stresses on the right knee, he did not address whether such stress, or other factors, aggravated the right knee osteoarthritis.  

In contrast, there is an August 2010 private opinion that states that, in the physician's professional opinion, the Veteran's right knee has been made worse by the left knee disability.  The physician stated that the Veteran had surgery on the left knee in 1984 and had been compensating on his right leg ever since.  

The Board finds the evidence in favor of the claim to be in equipoise with the evidence against it.  As indicated, the VA examiner's opinion is incomplete as it does not fully address aggravation of the right knee by the left knee.  However, the opinion does indicate that the left knee could cause the biomechanical stress on the right knee as reported by the Veteran, and the private opinion concludes that such compensation for the left knee by the right knee had made the right knee worse.  Thus, the Board finds that the evidence taken in its entirety supports the conclusion that it is at least as likely as not that the Veteran's right knee osteoarthritis is the result of aggravation of the right knee symptoms by the left knee disability.  Service connection for right knee osteoarthritis is, therefore, granted. 







ORDER

Entitlement to service connection for right knee osteoarthritis is granted as secondary to service-connected left knee disability on the basis of aggravation.



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs