Citation Nr: 9812151 Decision Date: 04/17/98 Archive Date: 05/06/98 DOCKET NO. 91-56 175 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho THE ISSUES 1. Entitlement to secondary service connection for a right knee disorder. 2. Entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Schlosser, Associate Counsel INTRODUCTION The veteran had active military service from May 1945 to August 1946 and from August 1953 to August 1955. By rating action of October 1987, the RO denied service connection for a right knee disorder. The veteran appealed and the RO issued a Statement of the Case (SOC) explaining the denial of primary and secondary service connection for a right knee disorder. The veteran filed a substantive appeal (Form 9) only with respect to the denial of secondary service connection for a right knee disorder. In March 1989, the veteran withdrew his appeal. In June 1989, the veteran submitted a claim for secondary service connection for a right knee disorder. He was afforded a hearing at the RO in July 1990. At his July 1990 hearing, the veteran also raised the issue of entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for a right knee disorder on the basis that surgery at a VA facility in 1989, consisting of a total right knee replacement, aggravated his right knee disability. The case was remanded by the Board of Veterans’ Appeals (Board) in June 1991 for further development of the issue characterized as whether new and material evidence had been submitted to reopen a claim for secondary service connection for a right knee disability. The issue involving entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 was referred to the RO for initial consideration. In a February 1995 rating action, the RO denied the veteran’s claim for compensation benefits pursuant to 38 U.S.C.A. § 1151 for a right knee disorder. In a November 1995 decision, the Board reopened the veteran’s claim for secondary service connection for a right knee disorder on the basis of Allen v. Brown, 7 Vet. App. 439 (1995), a new precedent from the United States Court of Veterans Appeals (Court). The issue of entitlement to compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151, for aggravation of a right knee disorder due to surgery at a VA facility, was deemed to be in appellate status and inextricably intertwined with the issue of secondary service connection for a right knee disorder. Both issues were remanded for evidentiary development to include a VA examination. The development requested has been accomplished and the case has now been returned to the Board for further appellate consideration. The Board notes that a September 1997 statement of the case explaining the denial of an increased rating for a left knee disorder, has not been the subject of a substantive appeal. The Board further notes that in November 1997, the veteran initiated a claim for service connection for hyperparathyroidism, hypercalcemia, gallstones, mild hyperamylasemia, peptic ulcer disease, sphincterotomy and laparoscopic cholecystectomy. In a January 1998 rating decision, the RO denied service connection for all of the aforementioned disorders. The veteran has not filed a Notice of Disagreement (NOD) with respect to the RO denial of service connection for any of these disabilities and they are not currently before the Board for appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, in essence, that he should be service connected for a right knee disorder. He contends that his service connected left knee disability caused problems in his right knee. In the alternative, the veteran contends that surgery on his right knee in 1989 at the Boise, Idaho, VA facility, consisting of a total right knee replacement, aggravated his right knee disability. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran’s claims for secondary service connection for a right knee disorder and for compensation benefits pursuant to the provisions of 38 U.S.C.A. § 1151 for a right knee disorder. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran’s right knee disorder was not caused by or aggravated by his service connected left knee disorder. 3. The veteran underwent a total knee replacement on the right at a VA facility in Boise, Idaho, in 1989. 4. The 1989 surgery on the veteran’s right knee at a VA facility, consisting of a total right knee replacement, did not aggravate the veteran’s right knee disability. CONCLUSIONS OF LAW 1. The veteran’s right knee disorder is not proximately due to or the result of his service connected left knee disorder. 38 U.S.C.A. § 5107 (a) (West 1991); 38 C.F.R. § 3.310 (a) (1997). 2. Compensation benefits under the provisions of 38 U.S.C.A. §1151 for a right knee disorder, on the basis that surgery at a VA facility in 1989 aggravated an existing right knee disability, are not warranted. 38 U.S.C.A. §§ 1151, 5107 (West 1991 & Supp. 1997); 38 C.F.R. § 3.358 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The text of the November 1995 Board remand is incorporated herein by reference for the purpose of factual background. As indicated therein, on official examination in September 1987, the veteran indicated the belief that his right knee disorder, a non-service connected condition, was worse than it would have otherwise been as a result of his service connected left knee disorder. The physician commented that this was a possible explanation for part of the deterioration involving the right knee, but that he could not say that the majority of the veteran’s right knee problems were definitely related to the service connected left knee disorder. Subsequent to the November 1995 remand, the veteran indicated that all of his medical treatment has been received at VA. Thereafter, the veteran’s entire VA clinical record, contained in two volumes, was obtained and is associated with the claims folder. Appellate review of the veteran’s VA clinical records fails to document any statement from a medical professional that the veteran’s right knee disorder was caused or aggravated by his service connected left knee disorder. In July 1986, the veteran reported that he had undergone four surgeries on the right knee. On two occasions in 1989, the veteran attributed his right knee problems to his left knee disorder and said that his right knee symptoms had worsened since he had his total left knee replacement. In addition to the veteran’s VA clinical records, other clinical records were received and have been associated with the claims folder. Many of these records pertain to treatment the veteran has received for disabilities unrelated to the current issues on appeal. An outpatient report from July 1996 reflects that the veteran was seen for complaints of increased left leg pain. Examination revealed that the veteran’s left total knee replacement had failed. On October 10, 1996, the veteran was seen again for failed left knee replacement. He was to undergo revision of the left knee replacement on October 20, 1996; the veteran was admitted at the VA facility on that date for the purpose of revision of a left total knee replacement but left two hours after admission against medical advice. The veteran was seen for a VA examination of his right knee only in May 1997. The examiner commented that the medical records clearly document that the veteran had osteoarthritis in both knees since the early 1980’s. On examination, the veteran reported swelling, pain and limitation in both knees. The veteran was observed to have a pretty normal gait. He did not use any cane or assistive device and was able to walk on his heels and toes. He was able to perform a deep knee bend with flexion of both knees to about 70 degrees with the support of a table; thereafter, he was able to squat and rise. The veteran exhibited good motor strength on flexion and extension of the right knee. Sensation was intact. Examination of both knees revealed no significant effusion. The veteran had good stability and tracking in both knees with no localized tenderness over the femoral or tibial components of either the right or left knee. The diagnostic impression included tricompartmental degenerative osteoarthritis of both knees. The examiner commented that the veteran had significant degenerative joint disease of both knees prior to his left total knee replacement. In response to the specific questions posed in the November 1995 remand order, the examiner concluded as follows. (1) Did the veteran’s service connected left knee disorder cause development of his right knee disorder? Answer: No, the veteran had pre-existing tricompartmental osteoarthritis of both knees. His pathology in both knees was developmental. Specifically, the examiner indicated that the veteran’s right knee did not suffer because of his left total knee replacement. (2) Did the service connected left knee disorder cause an increase in severity of the right knee disorder? Answer: No. The veteran had tricompartmental osteoarthritis of both knees. (3) Did the right total knee replacement performed during VA hospitalization from May to June 1989 produce residuals that were not certain to or intended to result from the surgical procedure? Answer: The veteran has had good outcome from both left and right total knee replacements. The examiner further stated that the veteran had progressive developmental osteoarthritis of the right knee. The fact that the veteran also had the same arthritic process in the left knee did not cause any increase in the pathology of the right knee within a reasonable degree of medical probability. The progression of the osteoarthritis in the veteran’s right knee is clearly documented in the record. It became fairly severe in the 1980’s which ultimately resulted in bilateral total knee replacements; this was indicated to be an expected course for the natural progression of bilateral tricompartmental degenerative osteoarthritis of the knees. In November 1997, records were received showing treatment for a variety of conditions including hyperparathyroidism, hypercalcemia, gallstones, mild hyperamylasemia, status post cholecystectomy and peptic ulcer disease. II. Analysis a. Secondary Service Connection In order to establish entitlement to secondary service connection for a disability, there must be objective evidence that establishes that such disability exists and that it is caused by or aggravated by a service connected disability. 38 U.S.C.A. § 5107 (a) (West 1991); 38 C.F.R. § 3.310 (a); Allen v. Brown, 7 Vet. App. 439 (1995). Evidentiary assertions by the veteran must be accepted as true for the purpose of determining whether a claim is well- grounded, except where the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). As articulated in the Board remand in November 1995, the veteran had suggested that, despite a prior non-service connected injury to his right knee, the subsequent deterioration in his right knee had been aggravated by his altered gait resulting from his service connected left knee disorder. In view of the comments on official examination in September 1987, to the effect that this was possible, the case was remanded for further development. Pursuant to the remand, the veteran was seen for a VA examination of the right knee in May 1997. The claimant reported that while he was in service following the gunshot wound of the left leg, he had no problems with his knees and had no problem until the1980’s when he was diagnosed with bilateral knee osteoarthritis. The examiner concluded, based on documentation in the claims folder, that the veteran had significant degenerative joint disease of both knees prior to the left total knee replacement. In response to specific questions posed in the November 1995 remand order, the examiner concluded that the veteran’s service connected left knee disorder did not cause the development of the right knee disorder. It was noted that the veteran had pre-existing tricompartmental osteoarthritis of both knees at the time of the left total knee replacement; the pathology in both the left and right knee was determined to be developmental. He further stated that the veteran’s right knee did not suffer because of the left total knee replacement. With regard to the second question, the examiner concluded that the veteran’s service connected left knee disorder did not cause an increase in severity of his right knee disorder, inasmuch as the veteran already had tricompartmental osteoarthritis of both knees. In summary, the claims folder documents the presence of a current right knee disorder. The veteran has maintained that his right knee disorder was caused by or, in the alternative, aggravated by his service connected left knee disorder. However, current VA medical opinion has been provided to show that the veteran’s pre-existing right knee disorder was not aggravated by his service connected left knee disorder. As such, secondary service connection for a right knee disorder may not be granted. b. Compensation Benefits Pursuant to 38 U.S.C.A. § 1151 As noted above, the veteran has also contended, in the alternative, that his right knee disorder was made worse by surgery at a VA facility in 1989 consisting of a total right knee replacement. In pertinent part, 38 U.S.C.A. § 1151 provides that where any veteran shall have suffered an injury, or an aggravation of an injury, as the result of hospitalization, medical or surgical treatment, not the result of such veteran’s own willful misconduct, and such injury or aggravation results in additional disability or death, compensation shall be awarded in the same manner as if such disability or death were service connected. 38 C.F.R. § 3.358, the regulation implementing that statute, provides, in pertinent part, that in determining if additional disability exists, the beneficiary’s physical condition immediately prior to the disease or injury on which the claim for compensation is based will be compared with the subsequent physical condition resulting from the disease or injury. As applied to medical or surgical treatment, the physical condition prior to the disease or injury will be the condition which the specific medical or surgical treatment was designed to relieve. Compensation will not be payable for the continuance or natural progress of disease or injuries for which the hospitalization, etc., was authorized. In determining whether such additional disability resulted from a disease or injury or an aggravation of an existing disease or injury suffered as a result of hospitalization, medical or surgical treatment, it will be necessary to show that the additional disability is actually the result of such disease or injury or an aggravation of an existing disease or injury and not merely coincidental therewith. 38 C.F.R. § 3.358 (b). 38 C.F.R. § 3.358 (c) (3) (1997) now provides that compensation is not payable for the necessary consequences of medical or surgical treatment or examination properly administered with the express or implied consent of the veteran, or, in appropriate cases, the veteran’s representative. “Necessary consequences” are those which are certain to result from, or were intended to result from, the examination or medical or surgical treatment administered. Following a careful and complete review of the entire claims folder, the Board is of the opinion that compensation benefits pursuant to 38 U.S.C.A. § 1151 for a right knee disability are not warranted. On VA examination in May 1997, the VA physician was specifically asked to indicate whether the right total knee replacement performed during VA hospitalization from May to June 1989 produced residuals that were not certain to or intended to result from the surgical procedure. The response provided by the VA examiner reflects that the progression of the osteoarthritis in the veteran’s right knee is clearly documented in the record and resulted in a total knee replacement; this was indicated to be an expected course for the natural progression of bilateral tricompartmental degenerative osteoarthritis of the knees. On the basis of this definitive medical opinion, the veteran’s claim for entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for a right knee disorder is denied. ORDER 1. Secondary service connection for a right knee disorder is denied. 2. Entitlement to compensation benefits pursuant to 38 U.S.C.A. § 1151 for a right knee disorder on the basis that it was aggravated by surgery at a VA facility is denied. BRUCE E. HYMAN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -