Citation Nr: 1754581	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-03 332	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1. Entitlement to service connection for a right knee disability.

2. Entitlement to increased ratings in excess of 10 percent prior to January 17, 2013 and in excess of 30 percent from March 1, 2014 for residuals of a left knee injury.

3. Entitlement to an increased rating in excess of 10 percent for residuals of lumbosacral strain with spondylosis at L4-S1.

4. Entitlement to a total disability rating due to individual unemployability (TDIU).


REPRESENTATION

Veteran represented by:	Brian M. Epstein, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Saindon, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Marine Corps from February 1973 to January 1993.

These matters come to the Board of Veterans' Appeals (Board) from February 2011 and August 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina.

The Veteran testified before the undersigned Veterans Law Judge at a video conference Board hearing in May 2015.  The transcript is of record.

The Board remanded these matters in August 2015 for further development.  They have returned for adjudication.

The issues of entitlement to an increased rating for the left knee and lower back and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction.


FINDING OF FACT

The Veteran's diagnosed arthritis and chronic strain of the right knee disability was aggravated by his service-connected left knee disability.


CONCLUSION OF LAW

The criteria for entitlement to service connection for right knee arthritis and strain have been met.  38 U.S.C. §§ 1110, 1131, 5107 (2014); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. §§ 1110, 1131.  Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  38 C.F.R. § 3.303(d).

Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310.  In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability.  See Wallin v. West, 11 Vet. App. 509, 512   (1998).

If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the Veteran shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001).

VA treatment records and examination reports establish diagnoses of mild degenerative arthritis and chronic strain of the right knee.  The Veteran is also serviced connected for left knee disability, i.e., status-post knee replacement.  As such, elements (1) and (2) of Wallin have been met.

What remains for consideration is whether there is a nexus between the Veteran's diagnosed right knee arthritis and service-connected left knee disability.  He was afforded a VA examination in October 2015 to address this question.  In this regard, the examiner determined that "logic supports the notion" that any existing right knee condition would be aggravated beyond its natural progression by the placement of more pressure on the abnormal right knee joint in an effort to avoid pain in the more severely affected left knee joint.  The record does not contain affirmative evidence to the contrary and so secondary service connection should be granted on an aggravation basis.  

The Board is aware that the examiner stated that he could not determine the baseline of the severity of the Veteran's right knee disability prior to aggravation.  However, such does negate the finding that aggravation has occurred.  If anything, the inability to establish a baseline frustrates establishing a rating for the right knee.


ORDER

Entitlement to service connection for a right knee arthritis and chronic strain is granted. 


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REMAND

The Veteran was most recently afforded a VA examination for his left knee and lower back in October 2015.  Since that examination, the Court of Appeals for Veterans Claims issued Correia v. McDonald, 28 Vet. App. 158 (2016) that held, in pertinent part, that "[t]he final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities."  This section states that joints "should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint."  38 C.F.R. § 4.59.  The July 2016 examiner did not state that the Veteran was tested on both active and passive motion and in weight-bearing and non-weight bearing.  The Veteran must be afforded a new examination to correct this deficiency.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).

The issue of TDIU is intertwined with the issues being remanded and may also depend on the rating assigned by the grant of service connection for the right knee.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination by an appropriate medical professional to address the severity of the Veteran's knee and back disabilities.  The examiner must review the record and perform the appropriate diagnostic testing necessary to properly complete the requested examination.  Testing must include range of motion testing done under active and passive motion and in weight-bearing and non-weight bearing.  The examiner must also test muscle strength and endurance compared with both knees.  A notation must be made to indicate the types of testing done to ensure compliance with this directive.  If the examiner is unable to conduct the required testing, he or she should explain why that is so.  
 
A rationale for all requested opinions shall be provided.  If the examiner determines that an opinion cannot be rendered without result to mere speculation, then it should be clear in the examiner's remarks whether it cannot be determined from current medical authority or if an opinion could be rendered if additional facts were known.  If additional facts are needed, the examiner shall state what facts, if known, would impact his or her ability to render an opinion and how.  Simply stating that an opinion cannot be provided without resort to mere speculation is not acceptable without a detailed reason as to why this is so.

2. After completion of the above, readjudicate the Veteran's claims.  If any claim remains denied, issue a supplemental statement of the case to the Veteran and his representative and allow an appropriate period to respond.  Then return the claim to the Board for further adjudication.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs