Citation Nr: 1800907	
Decision Date: 01/08/18    Archive Date: 01/19/18

DOCKET NO.  13-17 479	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to service connection for degenerative joint disease of the left shoulder including as secondary to service-connected right knee disability. 

2.  Entitlement to service connection for degenerative joint disease of the left knee including as secondary to service-connected right knee disability.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran and his son
ATTORNEY FOR THE BOARD

C. Cooklin, Associate Counsel 
INTRODUCTION

The Veteran served in the Army from March 1971 to August 1972. 

This appeal comes before the Board of Veterans' Appeals (Board) from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 

The Veteran testified at a hearing before the undersigned Veterans Law Judge by videoconference from the RO in May 2016.  A transcript of the hearing is of record.  

In August 2016, the claims were remanded for additional development.  The Board finds there has been substantial compliance with the remand directives.  See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand.)  


FINDINGS OF FACT

1.  The Veteran has been diagnosed with degenerative joint disease of the left shoulder, and competent evidence as to whether left shoulder disability is secondary to his service-connected right knee disability are, at least, in relative equipoise.  

2.  The Veteran has been diagnosed with degenerative joint disease of the left knee, and competent evidence as to whether current left knee disability is secondary to his service-connected right knee disability are, at least, in relative equipoise.  


CONCLUSIONS OF LAW

1.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for left shoulder degenerative joint disease, secondary to service-connected right knee disability, are met. 38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017).

2.  Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for left knee degenerative joint disease, secondary to service-connected right knee disability, are met. 38 U.S.C.A. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Background

The Veteran was initially service connected for residual subluxation of the right knee, after he sustained a twisting injury while playing baseball in 1973.  In July 1982, he underwent VA arthroscopic surgery for removal of loose bodies and a lateral meniscectomy.  In an August 2010 claim, the Veteran reports that while climbing stairs at his home, his right knee buckled causing a fall on his left side.  He fractured his left ankle, dislocated his left knee, and landed on his left shoulder.  

In a January 2011 statement, the Veteran's son recounts that on August 30, 2010, he witnessed the Veteran grab his right knee and fall on his left side on the stairs.  When the left ankle and foot became swollen, he took the Veteran to a VA emergency room.  There, X-rays showed bone spurs in the left knee joint and a broken left ankle.  During the May 2016 Board hearing, the Veteran testified that on the day of the fall, his right knee "gave-out" and he fell on his left side, fracturing his left ankle and tearing the left knee patella and left shoulder rotator cuff.  

The left ankle claim was previously granted by the Board, with the remaining two issues remanded.  He is presently service connected at 20 percent for low back pain, 20 percent for his right knee, and 10 percent for his left ankle.  

VA treatment records show that the Veteran sought treatment at a VA Medical Center emergency room in late May 2010 for left ankle and knee pain one day following a fall.  The son wrote that on August 30, 2010, "he told me his right knee had buckled again. . . .When we got home, he started complaining about his left shoulder that something was wrong with it.  An X-ray of the knee obtained the next day showed a comminuted fracture of the distal fibula without significant displacement and a small cortical displaced fracture of the posterior tibial malleolus.  In an orthopedic follow up one week later, a physician assessed the injury and provided a CAM walker, crutches, and pain medication.  In follow-ups one month and three months later, physicians evaluated additional X-rays that showed satisfactory healing in good position and alignment. 

In his testimony before the Board in August 2016, the Veteran testified generally he sustained all these injuries due to falling after his right knee failed him. 

Legal Criteria

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303 (2017).  Such a determination requires a finding of current disability that is related to an injury or disease in service.  Watson v. Brown, 4 Vet. App. 309 (1993). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017).  

Service connection may also be established on a secondary basis for 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 either (a) was caused by or (b) is aggravated by a service-connected disability.  38 C.F.R. § 3.310 (a) (2014); Allen v. Brown, 7 Vet. App. 439 (1995). 

In adjudicating a claim for VA benefits, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

Analysis - Left Shoulder and Left Knee

There is evidence both for and against whether the injuries were caused by the service-connected right knee disability.  VA records prior to the fall showed mild degenerative disease and narrowed joint spacing of the right knee consistent with the 1982 lateral meniscectomy.  The examiner in 2009 noted no clinical instability but accepted the Veteran's report of the use of a brace and limited standing and walking endurance.  The Veteran and his son are competent to report that he fell because his right knee "gave-out" and their reports are credible because they were consistent with the clinical status of the right knee.  On the other hand, the Veteran had recent complaints about his left shoulder prior to the fall on March 4, 2010, with degenerative changes seen on radiographs at that time.  

In a February 2011 exam, the VA examiner stated it was "well documented" the Veteran sustained a fall on May 31 2010 resulting in a closed fracture of his left malleolus.  However, the examiner found against service connection, stating the medical evidence does not support that favoring one joint will result in injury to the opposite joint.  In a November 2016 VA exam, the examiner repeated the conclusion above, adding that known risk factors for falls are natural progression of aging, deconditioning, consumption of alcohol, elevated (BMI 31.13), poor lightening, and uneven surfaces. Extrapolating these risk factors, stated the examiner, indicates that the Veteran's fall is less likely than not (less than 50% probability) caused by or related to right knee condition.  

The VA exams contain reasoning errors the Board must address.  First, the Veteran's claim is that he fell and hurt himself because his service connected right knee failed to support him, not that his left knee was injured due to "favoring" or from wear and tear of a compensated gait.  Second, the examiner extrapolates from a number of generic risk factors for falls that have nothing to do with this claim, such as alcohol use and poor lighting.  Additionally, the examiner notes there is no chronicity of care regarding the right or left knee.  However, the Veteran did complete physical therapy, and there is no indication that additional follow-up care would improve his condition.    

Medical evidence showing injury is clear.  An April 2011 report of radiology (VBMS May 2011) indicated a complete tear the left shoulder rotator cuff.  An MRI of left knee in August 2011 revealed horizontal tear through the lateral meniscus, mid and posterior aspects, as well as a large bone spur. 

With regard to the current disability requirement, the Board notes that medical evidence of record documents left shoulder and knee disabilities, assessed as degenerative joint disease.  Furthermore, service connection has been established for the Veteran's right knee disability, which is rated under Diagnostic Code 5257 (for other knee impairment, to include recurrent subluxation and lateral instability). See 38 C.F.R. § 4.71a (2017).

Thus, the resolution of this appeal turns on the question of whether the Veteran's current left shoulder and knee disability was caused or is aggravated by his service-connected right knee disability. 

Considering the pertinent evidence of record in light of applicable legal authority, and affording the Veteran the benefit of the doubt, the Board finds that the record presents a plausible basis to grant service connection for left shoulder and knee disability secondary to service-connected right knee disability.  

In a claim for VA benefits, an appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail.  Gilbert, 1 Vet. App. at 54.  Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine, when the evidence is in relative equipoise, the law dictates that the claimant prevails. Id. 

Based on the foregoing, the Board finds that the competent, probative medical opinion evidence of record is at least in relative equipoise with regard to the matter of whether service connection is warranted for current left shoulder and knee disability-- specifically, degenerative joint disease as secondary to the Veteran's service-connected right knee disability. To the extent that there is any reasonable doubt as to this critical inquiry, such doubt is resolved in the Veteran's favor. Accordingly, service connection is warranted.


ORDER

Entitlement to service connection for degenerative joint disease of the left shoulder including as secondary to service-connected right knee disability is granted. 

Entitlement to service connection for degenerative joint disease of the left knee including as secondary to service-connected right knee disability is granted.  




____________________________________________
R. FEINBERG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs