Citation Nr: 18153067 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 16-54 289 DATE: November 28, 2018 ORDER Entitlement to service connection for a right knee disability, as secondary to a service-connected left knee disability, is granted. FINDING OF FACT The Veteran’s right knee disability was caused or aggravated by his service-connected left knee disability. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from November 1980 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a right knee disability, claimed as secondary to a service-connected left knee disability The Veteran specifically contends that his current diagnosed right knee osteoarthritis was caused or aggravated by his service-connected left knee condition. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of 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, 448 (1995) (en banc). The pertinent medical evidence of record consists of a March 2015 VA examination, and October 2014 and October 2016 medical opinions from the Veteran’s treating physician. At the time of the Veteran’s March 2015 examination, he reported the onset of his knee pain in 2010. The Veteran indicated that his knee pain had worsened due to overcompensating for the arthritis in his left knee. The examiner opined that the Veteran’s right knee condition was less likely than not proximately due to or the result of his left knee condition. As rationale, the examiner stated that VA treatment records indicated that the Veteran first began having right knee pain in 2007, and that there were no records to support having right knee pain due to compensating for the left knee condition. See C&P Exam, dated March 17, 2015. Here, the Board finds that the March 2015 examination is of little probative value as the examiner provided an opinion that addressed whether the left knee condition caused the right knee condition, but failed to provide an opinion as to aggravation. El-Amin vs. Shinseki, 26 Vet. App. 136, 140-41 (2013) (medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation). The Veteran also submitted two correspondences from Dr. P.K., his treating physician. In an October 2014 opinion, Dr. P.K. indicated that due the sequence of the Veteran’s knee complaints, it was her opinion that the Veteran’s right knee condition was more likely than not caused by his service-connected left knee condition. See Medical Treatment Record – Government Facility, submitted October 31, 2016. In an October 2016 opinion, Dr. P.K. stated that she had been treating the Veteran since September 2013 for his bilateral knee condition. Dr. P.K. cited the Veteran’s contention that his right knee pain had worsened, and his belief that the condition was caused by overcompensation for his left knee. Ultimately, she opined that it was more likely than not that his right knee condition was caused by his service-connected left knee condition. Id. Here, the Board finds the most probative evidence of record to be the October 2014 and 2016 correspondences from Dr. P.K. Collectively, the opinions were based on Dr. P.K.’s personal knowledge of the Veteran’s medical history as his treating physician, were rendered after thorough examination of the Veteran and review of his medical records, and further, addressed the Veteran’s contention that his right knee condition was both caused and worsened by his left knee. In contrast, the March 2015 opinion is of little probative value as the issue of aggravation was not addressed. Although 38 C.F.R. §3.310(b) indicates that service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability, the next sentence indicates that the rating activity will determine the baseline and current levels of severity and determine the extent of aggravation. Given that the Board is not bound by the AOJ’s determination that aggravation is not present, and as the Board does not assign ratings in the first instance, the Board reads 38 C.F.R. §3.310(b) as permitting the Board to determine whether service connection on an aggravation basis is warranted, with the AOJ having the responsibility for determining the degree of aggravation in assigning the rating. Accordingly, entitlement to service connection for a right knee disability, claimed as secondary to a left knee disability is granted. Biswajit Chatterjee Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel