Citation Nr: 1806155	
Decision Date: 01/31/18    Archive Date: 02/07/18

DOCKET NO.  10-18 113	)	DATE
	)
	)

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


THE ISSUE

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


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Marcus J. Colicelli, Associate Counsel

INTRODUCTION

The Veteran had active service from October 1974 to April 1975 in the U.S. Army and additional unverified service in the U.S. Army Reserves from April 1975 to February 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied, in pertinent part, the Veteran's claim of service connection for a left knee disability.  The Veteran disagreed with this decision in March 2009.  He perfected a timely appeal in April 2010.

The Veteran requested a Travel Board hearing which was held at the RO in September 2011 before a Veterans Law Judge whom is no longer employed with the Board, and a copy of the proceeding has been associated with the record.  In June 2017 correspondence, the Veteran expressed his desire to proceed without another hearing before a new Veterans Law Judge.

As outlined in the July 2016 Remand, the Board bifurcated the Veteran's claim based upon his various theories of service connection and issued a final decision as to direct service connection, thus the sole remaining issue on appeal, as reflected in the title page, is entitlement to service connection for the left knee on a secondary basis.  See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of a claim generally is within VA's discretion); Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (holding that it is permissible to bifurcate a claim and to adjudicate the distinct theories of entitlement separately).  

In January 2012, September 2014, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development.  In July 2016, the bifurcated, remaining issue on appeal was remanded for further development.  The Board finds that there has been substantial compliance with the most recent Remand directives regarding the theory of secondary service connection, thus this claim is ripe for adjudication.  See Stegall v. West, 11 Vet. App. 268, 271 (1998). 
FINDING OF FACT

The most probative evidence of record demonstrates that a left knee disorder was not caused or aggravated by any service-connected disability.


CONCLUSION OF LAW

The criteria for service connection for a left knee disorder are not met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.309, 3.310 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has a duty to provide specific notification and assistance to the Veteran under 38 C.F.R. § 3.159 (2017).  Neither the Veteran, nor his representative have raised any argument with the duties to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service Connection

As noted in the Introduction, the foregoing decision solely concerns the issue of entitlement to a left knee disorder as secondary to the Veteran's service-connected right knee disorder.  See May 2016 Informal Hearing Presentation ("Claimant has an altered gait due to the service-connected right knee condition.").  The issue of direct service connection was adjudicated in a July 2017 Board decision which, to date, has not been appealed and is therefore deemed final.

Applicable Laws

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.  

Additionally, service connection may also be established for disability which is proximately due to or the result of a service-connected disability.  38 C.F.R. § 3.310(a) (2017).  Further, a disability which is aggravated by a service-connected disability may be service connected to the degree that the aggravation is shown.  38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  See Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991).  Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value.

Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran 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. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran.  38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017).

Facts & Analysis

As an initial matter, the Board notes that the Veteran has a post-service diagnosis of degenerative joint disease (arthritis) in his left knee.  See March 2014 VAMC Jackson Radiology Report; January 2015 VA Examination.  Therefore, the Board finds that the evidence demonstrates a current disability, meeting the first requirement for the establishment of service connection.  See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

As for the second requirement for service connection, that a disease or injury was incurred during service, the Veteran is service-connected for a right knee injury which he asserts is the basis for his current left knee condition.  Thus, the Board finds that the evidence demonstrates an in-service injury, meeting the second requirement for the establishment of service connection.  See Shedden, supra.

Regarding the third element for the establishment of service connection, nexus between the service-connected injury and the left knee disorder, the Board finds that it has not been satisfied in this case.  The Board finds that the competent medical evidence of record weighs against the finding of a link between the Veteran's currently diagnosed left knee disorder and his service-connected right knee disorder.  

Following the July 2016 Board remand, the Veteran was afforded a VA examination in December 2016 for the purpose of addressing the outstanding query remaining on appeal, correlation between the right and left knee conditions.  The December 2016 VA examiner conducted an in-person examination and provided an in-depth analysis of the Veteran's pertinent medical history, including detailed citations identifying all left and right knee complaints and treatment beginning in service through to the present.  The examiner opined that the service-connected right knee condition neither proximately caused nor aggravated the left knee condition beyond a natural progression, explaining that the left knee has "progressed naturally" in light of the Veteran's age and obesity.  In support of this conclusion, the examiner cited to review of peer-reviewed medical literature which revealed "no accepted medical studies that support a relationship that favoring one lower extremity will result in injury to the opposite lower extremity, or that having an injury of one lower extremity will result in an injury to the other lower extremity."  The examiner identified that medical studies have suggested a correlation in cases of one leg's injury resulting in a significant limp from muscle or nerve damage, but in the Veteran's case "neither severe muscle damage nor severe limb shortening has occurred."  Regarding etiology, the examiner identified the Veteran's obesity, noting clinical studies which have demonstrated that "knee osteoarthritis may be related to the inordinate mechanical stresses associated with excess bodyweight and/or hormonal changes that accompany obesity."

The Board affords the December 2016 VA medical opinion significant probative value as it contains well-reasoned rationale supporting the conclusions.  See Nieves-Rodriguez, 22 Vet. App. at 295; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The Board acknowledges the Veteran's belief that his left knee disorder is related to his service-connected right knee disorder.  However, there is no evidence of record showing that the Veteran has the specialized medical education, training, and experience necessary to render a competent medical opinion as to the etiology of his left knee disorder.  See Kahana, 24 Vet. App. at 435.  Therefore, the Veteran's claim fails on a secondary basis as there is no competent evidence that his left knee disorder is proximately due to or aggravated by his right knee disorder.

In sum, the most probative evidence of record finds no link between the service-connected right knee and the left knee disorders.  Rather, the only medical opinion of the record to address this issue is the highly probative examination report of the December 2016 examiner who concluded that the Veteran's left knee is isolated from the right knee disorder as reflected by the lack of length discrepancy or muscle damage, and moreover, provided an alternative etiological reason for the condition, namely age and obesity.  Thus there is no basis for finding his left knee disorder was caused or aggravated by his service-connected right knee disorder.  Therefore, based on the lack of probative evidence of an association between the Veteran's left knee disorder his service-connected right knee disorder, the Board concludes that the preponderance of the evidence is against the Veteran's claim for service connection.  See 38 C.F.R. § 3.310.  

As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply and the benefit sought on appeal is accordingly denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56.


ORDER

Entitlement to service connection for a left knee disorder is denied.



____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs