Citation Nr: 1337763 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 11-27 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for degenerative arthritis of the right knee secondary to the service-connected status post right ankle fracture. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1972 to July 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a September 2012 informal hearing presentation, the Veteran indicated that grant of service-connection for a right knee condition as secondary to the service-connected disability of status post right ankle fracture would satisfy his appeal. Therefore, the Board will limit its decision to the issue of secondary service connection alone, and has recharacterized the issue as shown on the title page. See AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDING OF FACT Degenerative arthritis of the right knee is caused by the service-connected post right ankle fracture. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis of the right knee, as secondary to service-connected post right ankle fracture, have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Legal Criteria and Analysis Secondary service connection may be granted for a disability that is shown to be proximately due to or the result of a 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) caused by or (b) aggravated by a service-connected disability. Id.; See also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (additional disability resulting from aggravation of a nonservice-connected disorder by a service-connected disorder is also compensable under 38 C.F.R. § 3.310). A VA knee examination was held in August 2011. The examiner found that degenerative arthritis of the right knee was not caused by the right ankle fracture because there was no evidence of treatment of a right ankle fracture in the service treatment records (STRs). She repeated this assertion in two different undated addendum opinions. However, the STRs clearly show that the Veteran fractured his right ankle in July 1973, and service-connection is in place for residuals of a right ankle fracture. The examiner also stated in her earlier undated addendum that there was no indication of a post-service right ankle stiffness or change in gait that might have caused the right knee disability. However, an abnormal gait due to right hip, knee, and ankle pain was specifically noted in the August 2011 VA examination of the Veteran's knee. VA examinations of the Veteran's ankle, dated in July 2009 and April 2011, also noted that the Veteran walked with an abnormal gait, which was attributed on both occasions to the right ankle disability. Because the examiner's conclusions are based on an inaccurate recitation of the evidence, they are of no probative value. Reonal v. Brown, 5 Vet. 458, 461 (1993) (a medical opinion based upon an inaccurate factual premise is inadequate). However, the VA examination is adequate to diagnose the Veteran, as that diagnosis was not based upon the faulty history. The examination report reflected a diagnosis of degenerative arthritis of the right knee joints, and notes that X-rays show degenerative joint disease. A December 2009 letter from a private physician, Dr. Farrell, states that the Veteran's knee pain is likely the result of extra strain it has sustained over the years from his ankle injury, but notes that it is difficult to tell how much of the wear and tear in the knee joint is from the strain from the ankle injury and how much of it is due to aging. However, Dr. Farrell concludes that, judging by the Veteran's history, she feels that a significant amount of his knee pain has resulted from the ankle injury. Although Dr. Farrell does not specifically state that she has reviewed the claims file, as long as an examiner is aware of all the pertinent facts, failure to review the claims file does not necessarily render an exam inadequate. Nieves-Rodriguez v. Shinseki, 22 Vet. App. 295 (2008). Dr. Farrell does not diagnose the Veteran in her letter, but the diagnosis has been provided by the August 2011 VA examination. Review of the evidence reflects that Dr. Farrell's conclusion is reasonably based. The evidence of record also bolsters Dr. Farrell's rationale. The first undated addendum by the VA examiner indicates that a post-service change in gait could possibly cause the right knee disability, but incorrectly asserts that the Veteran had no such change in gait. This statement, taken in conjunction with the evidence of record showing that the service-connected ankle disability did cause the Veteran to walk with an abnormal gait, dovetails with Dr. Farrell's opinion that the knee pain is likely the result of extra strain sustained by the right knee from the ankle injury. The Board thus finds that Dr. Farrell's opinion is probative evidence that the Veteran's degenerative arthritis of the right knee was caused or aggravated by his service-connected right ankle disability. There is no doubt to be resolved; the preponderance of the evidence is in favor of granting the Veteran's claim to service connection for degenerative arthritis of the right knee as secondary to the service-connected right ankle disability. ORDER Entitlement to service connection for degenerative arthritis of the right knee, as secondary to the service-connected status post right ankle fracture, is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs