Citation Nr: 21004785 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-05 777A DATE: January 28, 2021 ORDER Entitlement to service connection for a left knee disability is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s left knee disability is attributed to his service-connected right knee, now characterized as total right knee replacement. CONCLUSION OF LAW The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1984 to March 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in July 2019 and February 2020 when it was remanded for additional development. A July 2020 supplemental statement of the case was most recently issued, and the case is once again before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 1. Entitlement to service connection for a left knee disability. In addition to the regulations cited above, service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. The Veteran alleges that he suffers from a left knee disability, to include as secondary to his service-connected right knee. Most recently, the Veteran underwent an October 2020 evaluation by a private physician. The examiner noted that he had reviewed the Veteran’s claims file and had extensive medical experience in orthopedics. He opined that it was at least as likely as not that the Veteran’s left knee is the direct result of overuse of his left knee secondary to his chronic antalgic gait caused by his service-connected right knee. He then disputed some of the negative opinions of record, providing explanation for his difference of opinion. The private physician noted some medical studies. He noted that his opinions and rationale are based on probative reasoning that is supported by sound medical literature that confirms the cause and effect of the various orthopedic injuries at issue. His curriculum vitae was attached. This examiner additionally provided an April 2020 positive opinion. The Veteran additionally submitted a May 2019 opinion from Dr. M. S. After reviewing the Veteran’s record, he opined that the Veteran’s left knee has been caused by his service-connected right knee. He rationalized that based on his training, experience and review of medical records and medical literature, his opinion meets the standard of at least as likely as not in favor of the Veteran. These examinations and opinions were supported by medical evidence and were completed following a review of the record and evaluation of the Veteran. The record additionally includes negative June 2020, November 2015, and July 2014 VA medical opinions. A September 2019 VA opinion did not address secondary aggravation. Although a positive September 2015 private opinion was provided, the rationale provided was speculative in nature, and it is accorded little probative value. The Board has considered in detail the extensive medical opinions of record. In this regard, the Board finds that no one opinion is any more probative than the other. The opinions are in relative equipoise. See Gilbert v. Lewinski, 1 Vet. App. 49, 53 (1990) (held that an appellant need only demonstrate that there is an “approximate balance of positive and negative evidence” in order to prevail.). Therefore, resolving all doubt in favor to the Veteran, the Board finds that the evidence supports a nexus between the Veteran’s current left knee disability and his service-connected right knee, now characterized as a total right knee replacement. As all elements of service connection have been satisfied, service connection for a left knee disability on a secondary basis is granted. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303(d), 3.310. As the Board is granting service connection for a left knee disability on a secondary service connection proximate causation theory of entitlement, it is not necessary to further address the claim seeking service connection for a left knee disability on a direct basis. The nature and extent of this disorder is not before the Board at this time. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. M. Clark, Counsel 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.