Citation Nr: 21026667 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 18-45 927 DATE: May 3, 2021 ORDER Entitlement to service connection for degenerative arthritis of the right knee as secondary to service-connected residuals, left foot injury is granted. Entitlement to service connection for degenerative arthritis of the right hip as secondary to service-connected residuals, left foot injury is granted. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the right knee is proximately due to his service-connected residuals, left foot injury. 2. The Veteran's degenerative arthritis of the right hip is proximately due to his service-connected residuals, left foot injury. CONCLUSIONS OF LAW 1. The criteria for service connection for degenerative arthritis of the right knee as secondary to service-connected residuals, left foot injury have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for service connection for degenerative arthritis of the right hip as secondary to service-connected residuals, left foot injury have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1956 to December 1960. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in March 2019. The Board denied these claims in a July 2019 decision. The Veteran appealed to the Court of Appeals for Veterans Claims (CAVC) and in September 2020 the Court issued a Memorandum Decision that vacated the July 2019 decision and remanded the claims back to the Board. Service Connection Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (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 at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. 1. Entitlement to service connection for degenerative arthritis, right knee, to include as secondary to service-connected residuals, left foot injury 2. Entitlement to service connection for right hip condition, to include as secondary to service-connected residuals, left foot injury The Veteran contends that his degenerative arthritis, of the right knee and right hip condition are due to his service-connected left foot injury. Because the Veteran has not raised, and the record does not reasonably raise, entitlement to direct service connection, the Board's adjudication will consider only entitlement to secondary service connection. The question for the Board is whether the Veteran has a current disability that is proximately due to or the result of, or aggravated by service-connected disability. The April 2017 VA examination report shows that the Veteran reported that he initially had left hip problems which led to two hip replacements (last one in 2011), and that his right hip started bothering him two years prior. He noted knee complaints shortly following his left hip surgery. The VA examiner opined that the Veteran's degenerative arthritis, right knee and right hip osteoarthritis are not secondary to the left foot condition but instead more likely due to age, gout, neurologic issues, and occupational history. The rationale was that there was no evidence of a significant altered gait due to the Veteran's service-connected foot that would lead to degenerative joint disease of the knees or a right hip injury. The examiner also stated there was no evidence of aggravation or causation of the Veteran's bilateral knee disability and right hip injury. The August 2016 VA examiner noted that "additional stress would be on the contralateral (right) hip" when opining whether the Veteran's left hip disability was at least as likely as not the result of the Veteran's service-connected left foot injury. March 2019 treatment records from Greystone Medical Clinic contain a notation that the Veteran had "degenerative joint disease of the right hip and knee likely due to compensating for prior injury of his left great toe." A January 2021 private examiner, Dr. D.A., opined it is more likely than not that the Veteran's right knee and right hip degenerative joint disease is caused by and/or aggravated by his service-connected residuals, left foot injury. Dr. D.A. reasoned that current medical literature has established that traumatic injuries often set off immunological reactions resulting in the onset of osteoarthritis. Additionally, due to gait issues, an affected limb can result in the development of osteoarthritis in proximal joints. The Veteran's hip and knee are due to both immunological mechanism as well as mechanical stress, due to improper placement of weight. Dr. D.A. considered several medical studies specific to U.S. veterans and reviewed the Veteran's medical history. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran's current degenerative arthritis of the right knee and right hip are proximately due to his service-connected residuals, left foot injury. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for degenerative arthritis of the right knee and right hip is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, Associate 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.