Citation Nr: 1332758 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-11 537 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from September 1964 to October 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In that decision, the RO confirmed and continued previously denied claims of service connection for a right knee disability and a left knee disability because new and material evidence had not been received to reopen these previously denied claims. In September 2011, the Board denied the Veteran's claim for service connection for a left knee disability and remanded the Veteran's right knee claim. In a September 2012 decision, the Board reopened the issue of entitlement to service connection for a right knee disability, and remanded that issue back to the RO for additional development. A review of the Veteran's virtual VA folder reveals that all documents in that folder have already been considered by the RO in adjudicating the Veteran's claim. In September 2008, the Veteran testified at a personal hearing before a Veterans Law Judge who has since retired from the Board. A transcript of his testimony is associated with the claims file. In July 2012 correspondence, the Board afforded the Veteran another opportunity to present additional testimony in support of his appeal at a second personal hearing before a Veterans Law Judge who would be assigned to his appeal. 38 C.F.R. § 20.717. As the Veteran did not timely respond to this inquiry, the Board assumes that the Veteran does not desire a subsequent Board hearing. The record also reflects that the Board requested a medical opinion from the Veterans Health Administration (VHA). See 38 C.F.R. § 20.901 (2012). Pursuant to 38 C.F.R. § 20.903 (2012), the Veteran would normally be sent a notice letter following the Board's receipt of a VHA opinion, and a period of 60 days to submit any additional evidence or argument in response. However, as will be discussed below, the Board is granting the benefit sought on appeal in full. Therefore, the Board finds no prejudice in proceeding with a decision without providing the Veteran notice in advance of the content of the requested VHA opinion. FINDING OF FACT The Veteran's current right knee disability, degenerative arthritis, status post total knee arthroplasty, was caused by service. CONCLUSION OF LAW The criteria for service connection for right knee degenerative arthritis, status post total knee arthroplasty, have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION In light of the favorable determination contained herein, further development with regard to VA's duties to notify and assist as set forth by the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the following must be shown: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As explained below, the Board finds that the most probative evidence indicates that the Veteran's right knee disability was caused by service. The Veteran's service treatment records (STR) reveal that in June 1967 the Veteran fell on his right knee and had tenderness and some swelling over the patella. In May 1968 the Veteran reported a painful right knee for two years and the examiner diagnosed chondromalacia. The X-ray report at that time states that the Veteran reported that he had had an injury to the right knee two and a half years previously. X-rays revealed bipartite patella, but did not reveal any injury or other abnormality. The VA treatment records show complaints of bilateral knee pain since June 1993. VA X-rays in July 1998 revealed moderate degenerative changes of the right knee. In March 2001, a VA physician stated that the Veteran's (bilateral) knee osteoarthritis problems could possibly be related to the injuries the Veteran stated he sustained while in the service. In an October 2001 letter, the Veteran's former wife stated that she had known the Veteran for 21 years and that he had always complained about his knees hurting. The Veteran underwent a right total knee arthroplasty in May 2008. In September 2008, the Veteran testified that he fell on his right knee while getting out of a truck. He reported that his right knee had always hurt him ever since. He stated that he did not seek any treatment for his knees until he started going to VA in 1991. It was asserted that service connection was warranted for degenerative joint disease which had progressed to the point that a total knee replacement was required. In August 2013, the Board requested a medical opinion from the Veterans Health Administration (VHA) as to whether the Veteran's current right knee disability is related to the right knee injury and complaints during service. In a September 2013 letter the VHA specialist described in detail the right knee complaints and findings shown in the Veteran's STRs. The specialist noted a physical examination in service showing that the Veteran lacked 5 degrees of full extension and had moderate retropatellar crepitance. He also noted that the x-ray at that time showed a bipartite patella with an irregular articular surface and that the diagnosis was chondromalacia. The specialist opined that this documentation provides support for service connection regarding the diagnosis. He stated that the documentation shows objective signs of injury to the cartilage as demonstrated by the retropatellar crepitance and abnormal x-ray. The specialist further noted that his opinion was based on the fact that the Veteran's complaints of right knee joint injury and pain during active service which were documented in 1967 and 1968. The specialist stated that the nature of the Veteran's complaints and the physical examination support the opinion that the Veteran sustained some cartilage or chondral injury, which in the specialist's opinion, more likely than not progressed to degenerative joint disease over time. The Board recognizes that there is an October 2012 VA medical opinion that the Veteran's current right knee disability is unrelated to service. However, the Board finds that the October 2012 VA medical opinion is of little probative value. A review of the October 2012 examiner's rationale makes it clear that she did not consider all the pertinent STRs. She did not consider the June 1967 STR in which the Veteran reported that he fell and that he had pain and swelling of the right knee. She also did not consider the May 1968 STR in which the Veteran reported that his right knee had been painful for two years. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (indicating a medical opinion based on incorrect factual premise is not probative). Consequently the Board finds that in this case the September 2013 VHA specialist's opinion is the medical evidence of record that is of the most probative value. As noted above, the VHA specialist reviewed all the pertinent STR and also provided a rationale for his opinion that the Veteran's current right knee disability was caused by service. Consequently the Board finds that the Veteran's right knee degenerative arthritis, status post total arthroplasty, occurred as a result of service and that service connection for this disability is warranted. ORDER Service connection for right knee degenerative arthritis, status post total knee arthroplasty, is granted. ____________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs