Citation Nr: 1800408	
Decision Date: 01/04/18    Archive Date: 01/19/18

DOCKET NO.  10-11 487	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee disability.


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

C. Samuelson, Counsel





INTRODUCTION

The Veteran served on active duty in the Marine Corps from April 1978 to April 1979.

This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).  

Courts have held that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the year following notice of a rating decision to determine whether they contain new and material evidence, even if the new submission may support a new claim.  See Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010).  The Board notes that an October 2005 rating decision denied service connection for a left knee disability.  Although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the October 2005 rating action, VA was in receipt of new and material evidence within one year of a rating decision addressing the condition and must relate any subsequent back to this original claim.  38 C.F.R. § 3.156(b) (2015); see also Buie v. Shinseki, 24 Vet. App. 242, 252-52 (2010); see also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011).  Thus, the October 2005 rating action did not become final and remains pending.  See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007).  As such, the October 2005 rating action is the proper determination certified for appellate review. 

The Veteran was scheduled for a hearing in April 2015, but did not appear.  Therefore, the hearing request is deemed withdrawn.  38 C.F.R. § 20.702(d) (2017).  

In November 2015 and April 2016, the Board remanded this issue for additional development.



FINDING OF FACT

The Veteran's left knee arthritis is secondary to his service-connected right knee disability.


CONCLUSION OF LAW

The criteria for service connection for left knee arthritis, to include as secondary to a service-connected right knee disability, have been met.  38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that his service-connected right knee condition caused him to fall in September 2003 and to walk with an altered gait, which led to painful arthritis in his left knee.  See March 2005 claim; March 2010 VA 9; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  
The Board notes that service connection may be granted for a disability that is 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) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

August 1996 and March 2005 radiology reports showed calcifications in the lateral meniscus with no other abnormalities of the left knee.  A September 2004 x-ray report showed mild arthritic changes of the left knee.  At the September 2005 VA examination, the Veteran was diagnosed with left knee mild osteoarthritis and at the November 2009 VA examination, he was diagnosed with mild degenerative joint disease of the left knee.

In a February 2010 letter, the Veteran's private treatment provider, Dr. Santos, notes that the Veteran walked with an abnormal gait and placed most of his weight on his left leg due to his right knee condition and used crutches.

The Board acknowledges that the September 2005, November 2009, December 2015, and July 2016 VA medical examiners opined that the Veteran's left knee condition was not secondary to his right knee condition.  However, the Board determined these medical opinions were inadequate because they either did not acknowledge all treatment records or failed to use the appropriate standard of proof.

In August 2017, the Board requested a VHA opinion from an orthopedist to address whether the Veteran's left knee disability is related to his service-connected disabilities, to include a low back disability, right knee disability, and right hip disability.  In an October 2017 statement, the VHA orthopedist provided a positive nexus opinion relating the Veteran's left knee arthritis to his right knee disability. The Board finds the October 2017 VHA opinion to be the most probative evidence of record.  As such, the Board finds that service connection is warranted for left knee arthritis.


ORDER

Service connection for left knee arthritis is granted.






____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs