Citation Nr: 21031603 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 16-07 853 DATE: May 24, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability is granted. REMANDED Entitlement to service connection for left ear hearing loss is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDING OF FACT The preponderance of the competent and probative evidence indicates that the Veteran's left knee disability was aggravated beyond natural progression by his service-connected right knee disability. CONCLUSION OF LAW The criteria for establishing service connection for a left knee disability, to include as secondary to the service-connected right knee disability have been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107; 38 C.F.R. § § 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1971 to November 1972 and from March 1981 to March 1987. These matters come before the Board of Veteran's Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge. A transcript of the hearing is of record. This case was previously remanded by the Board in October 2019. At that time, the issues of service connection for left and right foot disabilities and a heart condition were also remanded. During the pendency of the remand, an April 2021 rating decision granted service connection for left and right pes planus and atypical chest pain. As that decision constitutes a grant of the claims for service connection, the claims for service connection are no longer on appeal. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997), (because appellant's first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream elements). As explained below, the record shows that the Veteran may be in receipt of Social Security Administration (SSA) disability benefits and such records are not associated with the Veteran's claims file; however, there is no prejudice to the Veteran in not obtaining the records prior to adjudicating the claim for service connection for a left knee disability as the claim is being granted in full. 1. Entitlement to service connection for a left knee disability, to include as secondary to the service-connected right knee disability is granted. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such diseases during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Secondary service connection may be established for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the claimed disability was either caused or aggravated by the already service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). As an initial matter, the Board notes that the Veteran has been diagnosed during the course of the appeal with degenerative arthritis of the left knee as shown on the November 2020 VA examination. Accordingly, the first criterion for establishing service connection, a current disability, has been met. The question becomes whether such is related to service, or alternatively, to the service-connected right knee disability. On this question, the Board finds that the preponderance of the evidence weighs in favor of the claim. Per the Board's October 2019 remand, the Veteran underwent VA knee examination in November 2020. As mentioned, the examiner diagnosed degenerative arthritis of the left knee with an onset date of November 2020. While the examiner provided a negative nexus opinion as to whether the service-connected right knee disability caused the left knee disability, he provided a positive opinion as to the question of aggravation. In this regard, the examiner opined that it was at least as likely as not that the Veteran's left knee condition was aggravated beyond its natural progression by the service-connected right knee disability. The examiner explained that the Veteran's left knee degenerative arthritis is only documented post-service and his right knee condition from service causes him to rely more on his left knee. Now that the Veteran has arthritis of the left knee, additional pressure and support of the affected left knee is more painful and increased further degeneration of the left knee joint. Thus, competent and credible evidence shows that the Veteran's left knee is aggravated beyond natural progression by his service-connected right knee, as the indicated by the 2020 VA examiner. Accordingly, after resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's left knee condition was aggravated by his service-connected right knee, and service connection is warranted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). REASONS FOR REMAND 1. Entitlement to service connection for left ear hearing loss is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a left ankle disability is remanded. 4. Entitlement to service connection for a right ankle disability is remanded. Upon review of the record, it appears the Veteran may be in receipt of SSA benefits based on an April 2020 SSA profile and benefit data inquiry results. Accordingly, such records should be obtained upon remand. The matters are REMANDED for the following action: Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina, 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.