Citation Nr: 1332456	
Decision Date: 10/18/13    Archive Date: 10/24/13

DOCKET NO. 08-20 178	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to service connection for decreased muscle strength in the left calf secondary to the service-connected left knee arthritis and instability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran served on active duty from November 1946 to November 1949.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In July 2009, the Veteran testified before a Decision Review Officer (DRO) at the RO.  The Veteran also testified in July 2011 at a travel board hearing before the Undersigned Veterans Law Judge. Transcripts of these hearings are of record.

The Board remanded this claim in September 2011, March 2013, and June 2013 for further development.

This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

1. The Veteran is service-connected for left knee arthritis and instability.

2. The evidence is at least in equipoise as to whether decreased muscle strength in the left calf is related to his service-connected left knee arthritis and instability.



CONCLUSION OF LAW

Decreased muscle strength in the left calf was incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5701 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary.

The Veteran asserts that the knee brace worn for the service-connected left knee condition impaired the use of his left calf. (See September 2013 Post Remand Brief).

Weighing all doubt in favor of the Veteran, the evidence is at least in equipoise as to whether the Veteran's decreased muscle strength in the left calf is related to his service-connected left knee arthritis and instability, in particular the wearing of a left knee brace.

Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). Under the current version of 38 U.S.C.A. § 3.310(b), the regulation provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. See Notice, 71 Fed. Reg. 52,744-47 (Sept. 7, 2006), later codified at 38 C.F.R. § 3.310(b). The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

Although the December 2012, April 2013, and July 2013 DBQ did not address the issue of aggravation per se; there is medical evidence that the Veteran's current decreased muscle strength in the left calf is related to the service-connected left knee injury. In the April 2013 VA medical opinion, the physician stated that the Veteran's left calf atrophy could have been aggravated by his service-connected left knee disorder in that the use of his left knee brace could have caused his left calf atrophy.

The April 2013 VA examiner's statement is afforded higher probative value than the negative causation opinions as it is the only medical evidence of record that discusses the possibility of aggravation. The statement was made after a review of the relevant evidence, including past examinations of the Veteran, and contains a rationale for the conclusion reached. There is no evidence of record in conflict with the examiner's opinion. Resolving all doubt in favor of the Veteran, service connection for decreased muscle strength in the left calf is warranted. 



ORDER

Service connection for decreased muscle strength in the left calf secondary to service-connected left knee arthritis and instability is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs