Citation Nr: 1329436 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-28 181 ) 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 disability, to include as secondary to a right knee disability. REPRESENTATION Veteran represented by: Sean Ravin, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1996 to October 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a Board hearing in Washington, DC in August 2009. This transcript has been associated with the file. The Veteran was notified that the Judge who held his hearing had retired from the Board. He was offered an opportunity for an additional hearing, but in March 2013 he responded that he did not want an additional hearing and that the Board could proceed with his claim. In a June 2010 decision the Board denied entitlement to service connection for a left knee disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2012 the Court issued a memorandum decision vacating the Board's denial of the Veteran's left knee disability claim and remanding the matter for further proceedings. Accordingly, in April 2013 the Board requested a medical opinion from the Veterans Health Administration (VHA) of VA. A response was received the same month. See also November 2009 VHA opinion. The Veteran and his attorney were provided copies of both of the opinions. The case is once again before the Board. FINDING OF FACT The Veteran's left knee disability is shown to have been caused by his service-connected right knee disability. CONCLUSION OF LAW A left knee disability was caused by his service-connected right knee disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) Since the Board is granting entitlement to service connection for a left knee disability, the entire benefit sought on appeal has been granted. Thus, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the VCAA. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Service Connection Claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative evidence of (1) a current disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or the result of service-connected disease or injury or that service-connected disease or injury has chronically worsened the disability for which service connection is sought. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran contends that his left knee disability is the result of his service-connected right knee disability. For the reasons discussed below, the Board finds that service connection is warranted. In December 1997, while in service, the Veteran sought treatment for left knee pain caused by running. He was diagnosed with medial collateral ligament strain of the left knee. The Veteran complained of a bump on his left knee with swelling and discomfort behind the left knee with popping in May 1998. The physician noted that there was swelling in the popliteal fossa and he determined that it was a ganglion cyst. See also June 1998 service treatment record noting swelling in the left knee. Post service the Veteran was afforded a VA examination in August 2007. The examiner concluded that he could not resolve the issue of whether the left knee condition was due to service without resorting to mere speculation. He noted that the service treatment records suggested that the Veteran had medial collateral ligament strain in December 1997 and an anterior cruciate ligament strain in May 1998. VA records document onset of current left knee pain in December 2005. The examiner asserted that the torn left medical meniscus found in the April 2007 arthroscopy was "old," but how old was impossible to say. The Veteran's VA physician submitted statement in October 2007 which opined that it was reasonable to conclude that the problem with the Veteran's right knee would cause mechanical imbalances that could put extra strain on his left knee and thereby contribute to the accumulated damage to the left knee. The Veteran was also provided with two VA examinations in December 2006 and January 2008. Unfortunately, the examiner stated that she was unable to offer an opinion on whether the Veteran's left knee condition was caused by or the result of his service-connected residuals of a right knee injury without resorting to speculation. The record also contains a VHA medical advisory opinion dated in November 2009 with an addendum dated in January 2010. The examiner discussed the evidence in the service treatment records and noted that the Veteran did not report any problems with the left knee at the time of the medical board evaluation. He emphasized that the Veteran was seen in 2006 by the orthopedic surgeon at the Bay Pines VA for his left knee and stated that his left knee pain started two months prior to the consultation. The examiner concluded that based on the review of the medical records, there was a less than 50 percent possibility that the Veteran's chondromalacia and medial meniscus tear of the left knee were related to service or were residuals from or aggravated by the Veteran's service-connected right knee injury. In the April 2013 VHA medical advisory opinion the examiner reviewed the records and opined that it was more likely than not that the Veteran's right knee disability caused the Veteran's left knee disability. His rationale was that the Veteran would have put more weight on his left knee following his right knee operation and pain in his right knee. At the very least, the Board finds the evidence is in relative equipoise. The December 2006, August 2007, and January 2008 examiners could not offer an opinion as to the etiology of the Veteran's left knee disability without resorting to mere speculation. The November 2009 VHA opinion, with January 2010 addendum, stated that the Veteran's left knee disability was not related to service or his right knee disability. However, the October 2007 VA medical opinion and April 2013 VHA medical advisory opinion both stated that the Veteran's left knee disability was caused by his service-connected right knee disability. The Board will resolve all reasonable doubt in favor of the Veteran and the claim of entitlement to service connection for a left knee disability is granted. 38 U.S.C.A. § 5107 (West 2002); see also Ashley v. Brown, 6 Vet. App. 52, 59 (1993); Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The RO will assign an appropriate disability rating. Ferenc v. Nicholson, 20 Vet. App. 58 (2006) (discussing the distinction in the terms "compensation," "rating," and "service connection" as, although related, each having a distinct meaning as specified by Congress). ORDER Entitlement to service connection for a left knee disability is granted. ____________________________________________ D. MARTZ AMES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs