Citation Nr: 20042333 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 17-35 017 DATE: June 22, 2020 ORDER Entitlement to service connection for status post right total knee replacement (TKR) is granted. Entitlement to service connection for a right knee scar is granted. Entitlement to service connection for status post left TKR, secondary to now service-connected right knee disability, is granted. Entitlement to service connection for low back pain, diagnosed as degenerative disc changes, secondary to now service-connected right knee disability, is granted. Entitlement to service connection for right foot drop, secondary to now service-connected right knee disability, is granted. Entitlement to an effective date of December 18, 2013, but no earlier, for the grant of special monthly compensation based on loss of use of one hand is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran’s right TKR is related to service. 2. The Veteran’s right knee scar is related to service. 3. The Veteran’s left TKR is proximately due to his now service-connected right knee disability. 4. The Veteran’s low back pain, diagnosed as degenerative disc changes, is proximately due to his now service-connected right knee disability. 5. The Veteran’s right foot drop is proximately due to his now service-connected right knee disability. 6. The Veteran’s eligibility for SMC based on loss of use of one hand arose on December 18, 2013, one year prior to the date of receipt of his claim for service connection for residuals of left wrist fracture. CONCLUSIONS OF LAW 1. The criteria for service connection for right TKR are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 2. The criteria for service connection for right knee scar are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for left TKR secondary to right knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for service connection for low back pain, diagnosed as degenerative disc changes, secondary to right knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 5. The criteria for service connection for right foot drop secondary to right knee disability are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 6. The criteria for an effective date of December 18, 2013, but no earlier, for the award of SMC based on loss of use of one hand, have been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.350, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1967. He testified before the undersigned Veterans Law Judge in June 2020. Service Connection The Veteran alleges that his right TKR, right knee scar and low back disorder are the result of injury sustained during service, to include when he fell 4 feet off a truck and sustained a “deep and long laceration” on his right knee and hurt his back (he also reports injury sustained a separate incident when his vehicle overturned.) See, e.g., January 2016 VA Form 21-4138, Statement in Support of Claim. He also contends that he developed right foot drop and left knee impairment (resulting in left TKR) as a result of his right knee, right leg and back pain. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 ; 38 C.F.R. § 3.303. 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). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A Veteran can also receive compensation via secondary service connection. Service connection may be secondarily established when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. To be awarded secondary service connection, there must be evidence sufficient to show: (1) That a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). First, the Board finds that there are current disabilities. Specifically, the record shows the Veteran underwent left TKR in June 2012; November 2014 lumbar spine X-ray showed diffuse degeneration of the discs, prominent anterior osteophytes and mild scoliosis concave right; May 2015 VA examination report shows a diagnosis of right knee degenerative arthritis (and VA and private treatment records show he underwent right TKR in January 2016); July 2015 VA treatment records note the Veteran’s compliant of burning in the right knee scar area; and August 2016 VA and October 2016 private treatment records note right foot drop. Second, the Board finds that there was an in-service event, injury or disease. The Veteran’s service treatment records (STRs) note he cut his right knee on glass while out in the field and a 2 inch right knee laceration was sutured in March 1967. These records also note the Veteran sustained a right wrist fracture “while driving vehicle in field” in August 1967; thereby, corroborating his recollection of vehicle related injury. Notably, although the STRs do not show treatment for back injury; in his January 2016 statement, the Veteran recalled he was treated at a field clinic, there was no X-ray equipment, he was told he probably had a back strain and would be fine. The Veteran’s recollections are competent, credible and consistent with the circumstances of his military service. Third, the Board finds that the evidence of record support a finding that the Veteran’s current right knee TKR, right knee scar and low back disorder are related to his active service and his right foot drop and left knee TKR are proximately due to his now service-connected right knee disability. Specifically, after review of the record and relevant medical literature, a November 2015 medical statement includes the opinion that the Veteran injured his right knee and low back when he fell out of a vehicle in service in 1967, his right knee scar is most likely secondary to cutaneous nerve impingement with scar development and his left knee TKR was most likely a result of overcompensation and premature wear and tear to the joints. The examiner explained that weight bearing for a long period of time causes aggravated pain in the lumbar spine which radiates posteriorly to the Veteran’s knees and down his calves. The examiner also explained that “[m]uch research supports a knee injury from direct impaction can cause long-standing pain to the lumbar spine and surrounding soft tissue.” In addition, an October 2016 private treatment report notes the Veteran has a history of foot drop, his right knee injury in March 1967 caused peripheral nerve damage in the right leg and he has noticed a multiple year history of right drop foot. The examiner also noted the Veteran’s history of diabetic peripheral neuropathy, for which service connection has not been established, should also be considered an etiological factor. However; as the right foot drop symptoms related to the Veteran’s service-connected right knee have not been distinguished from his nonservice connected diabetic peripheral neuropathy, his right foot drop will be attributed to his service connected right knee. The Board recognizes the favorable conclusions provided in the November 2015 and October 2016 medical statements. Although further medical inquiry could be undertaken to obtain a more thorough explanation of rationale as to each claim, with the exception of the May 2015 VA opinion regarding the right knee, there is no probative evidence contradicting the opinions as to the remaining claims. The May 2015 VA examination report includes the opinion that the Veteran’s right knee disability is less likely as not related to service because it “is NOT consistent with the documentation noted in STR’s of right knee injury after being in a MVA [motor vehicle accident].” However, the examiner provided no explanation as to why/how the current right knee condition is inconsistent with the Veteran’s right knee injury in service. As this opinion is conclusory, it is of diminished probative value and is outweighed by the private medical opinion in support of the Veteran’s claim. Thus, with resolution of all doubt in favor of the Veteran, the Board finds that his right knee TKR, right knee scar and low back disabilities are related to his inservice injury and his left knee TKR and right foot drop are proximately due to his now service-connected right knee disability. As such, service connection for these claims is granted. Earlier Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). In this case, Section 506 of Public Law (PL)112-154, Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012, applies since the Veteran filed his claim under Fully Developed Claims (FDC) program. Section 506 of PL 112-154 establishes different rules for the assignment of effective dates that are specific to claims decided under the FDC process and is now codified as 38 U.S.C. § 5110(b)(2)(A). Section 5110(b)(2)(A) indicates “[t]he effective date of an award of disability compensation to a veteran who submits an application therefor that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application.” The record establishes the Veteran first filed a service connection claim for residuals of broken left wrist with scarring on December 18, 2014. He filed this claim under the FDC program; therefore, the May 2015 rating decision which granted service connection assigned an effective date of December 18, 2013. This is the earliest possible effective date authorized by statute for the Veteran’s left wrist. Subsequently, by a June 2016 rating decision, the Veteran was granted SMC based on loss of use of one hand from February 17, 2016, the date of receipt of his VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability (TDIU Application), which the Agency of Original Jurisdiction accepted as a claim for an increased rating for his left wrist disability. However, as the February 2016 TDIU Application was received within one year of the May 2015 rating decision granting service connection, the May 2015 rating decision had not become final and the claim for an increased rating arises from the Veteran’s original December 18, 2014 FDC claim. Review of the record shows SMC based on loss of use of one hand is warranted from December 18, 2013, the effective date of service connection for the Veteran’s left wrist disability and one year prior to receipt of his December 18, 2014 FDC claim. In his December 2014 claim, the Veteran reported having “limited use” of his arm as a result of his wrist disability, February 2015 VA treatment records note his complaint that he “can’t use this arm,” and the May 2015 VA wrist examination report notes functional impairment of “difficulty bending/lifting objects, writing, holding objects,” as well as extremely unfavorable left wrist ankylosis, unfavorable ankylosis with ulnar and radial deviation to zero degrees and unfavorable ankylosis to 70 degrees of palmar flexion. In addition, a November 2015 private medical statement notes the Veteran reported he cannot use the left arm to perform activities of daily living due to progressively worsening and debilitating pain and includes the opinion that the Veteran’s left wrist condition is “equally served by an amputation stump with prosthetic device.” Accordingly, an effective of December 18, 2013, but no earlier, for the grant of SMC based on loss of use of one hand is granted. Notably, the Veteran’s October 2016 notice of disagreement, indicates the effective date for SMC based on loss of use of one hand should be December 18, 2013, the earlier effective date granted herein. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Hughes The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.