Citation Nr: 9912063 Decision Date: 04/30/99 Archive Date: 05/06/99 DOCKET NO. 90-28 423 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left knee disability, claimed as secondary to service-connected disability of the right ankle and right foot. 2. Entitlement to service connection for right knee disability, claimed as secondary to service-connected disability of the right ankle and right foot. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The veteran had active service from July 1943 to July 1946 and from February 1951 to July 1952. This matter comes before the Board of Veterans' Appeals (Board) from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A November 1983 rating action denied service connection for a left knee disorder secondary to the veteran's service- connected right ankle and foot disorder. A March 1989 rating action denied reopening of that claim. A Board decision in January 1991 found that the veteran had not been notified of his appellate rights following the 1983 decision and remanded the claim to the RO for de novo adjudication. After the RO denied the claim on a de novo basis, the Board obtained an opinion from an independent medical expert (IME) in orthopedics in March 1993. In June 1993 the Board denied the veteran's claim. The veteran appealed the Board's June 1993 decision to the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter the Court) which in August 1994, following a joint motion for remand filed by the Secretary of Veterans Affairs and the appellant, vacated the Board's June 1993 decision and remanded the case to the Board for compliance with the instructions in the motion to remand. Those instructions were to obtain additional VA medical records and then obtain a new IME opinion. In December 1994, the Board remanded the claim to the RO for development consistent with the Court's August 1994 order. In October 1997, the Board again remanded the case for complete compliance of the Court's Order since not all VA medical records had been obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998). An April 1998 rating action denied service connection for bilateral hearing loss and service connection for right knee disability, claimed as secondary to service-connected disability of the right ankle and right foot (characterized as traumatic arthritis of the right ankle as a residual of a fracture and pes cavus of the right foot). The veteran was notified of his appellate rights. A supplemental statement of the case (SSOC) of April 1998 addressed only the issue of service connection for left knee disability, claimed as secondary to service-connected disability of the right ankle and right foot. VA form 9 of May 1998 addressed the denial of service connection for right knee disability, claimed as secondary to service-connected disability of the right ankle and right foot, and requested a hearing. No appeal has been initiated as to the denial of service connection for bilateral hearing loss by the filing of a notice of disagreement (NOD) with the April 1998 denial nor perfected by the filing of VA Form 9 following the issuance of the April 1998 SSOC (since that SSOC did not address service connection for bilateral hearing loss). Generally see 38 C.F.R. § 20.302(c) (1998) (if an SSOC covers issues not included in the original SOC, a Substantive Appeal must be filed with respect to those issues within 60 days in order to perfect an appeal with respect to the additional issues). The veteran testified at a hearing before the Board in February 1999, at which time a written medical opinion from a neuroradiologist was submitted into evidence, together with a written waiver of initial consideration of that evidence by the RO. It was stipulated that the claims were entitlement to service connection for left knee disability, claimed as secondary to service-connected disability of the right ankle and right foot, and service connection for right knee disability, claimed as secondary to service-connected disability of the right ankle and right foot. At the hearing a claim for service connection for disorders of the back and hips were withdrawn. In an Informal Hearing Presentation of April 1999 it was stipulated that all relevant VA treatment records had been obtained and any further effort to obtain the rest of the veteran's VA treatment records from a VA facility in Orlando was waived. Also, it was conceded that the February 1999 medical opinion of the neuroradiologist was "independent" and satisfied the need for a new IME. FINDINGS OF FACTS 1. The unrebutted medical evidence is that the veteran's left knee disability was aggravated by service-connected disability of the right ankle and right foot. 2. The unrebutted medical evidence is that the veteran's right knee disability was aggravated by service-connected disability of the right ankle and right foot. CONCLUSIONS OF LAW 1. Left knee disability was aggravated by service-connected disability of the right ankle and right foot. 38 C.F.R. § 3.310(a) (1998); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 2. Right knee disability was aggravated by service-connected disability of the right ankle and right foot. 38 C.F.R. § 3.310(a) (1998); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claims are plausible and thus "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), which mandates a duty to assist in developing all pertinent evidence. Particularly in light of the favorable outcome of this decision, it is the determination of the Board that the evidentiary record is sufficient both in scope and in depth for a fair, impartial, and fully informed appellate decision. Background Service medical records reflect that the veteran sustained an injury to his right lower extremity on August 16, 1945, when he slipped and fell about 7 feet. He sustained a subtalar fracture-dislocation of his right lower extremity, for which he had closed reduction of the fracture and casting of the limb. Following service discharge in July 1946, service connection was granted for the residuals of this injury by rating action in September 1946, which also assigned his disability a 10 percent evaluation. Two VA examinations in September 1948 noted the veteran's post-traumatic involvement of the right lower extremity. He walked with a normal gait, i.e., with no limp. A December 1948 rating action assigned a 30 percent disability evaluation for the service-connected right ankle fracture residuals, to include traumatic arthritis. Upon reentry into service, examinations in January and February 1951 noted the veteran's service-connected ankle disability, but found his lower extremities to be otherwise normal and he did not complain during either of these examinations of any left knee disability. The separation examination of July 1952 also noted that his lower extremities were normal. On VA examination in February 1953, the residuals of his right lower extremity fracture were documented but there was no evidence of atrophy and no other orthopedic pathology was evident. He walked with a normal gait. There were no further complaints until late 1979, when the veteran was seen because of his right ankle residuals. A triple arthrodesis was subsequently recommended, if his symptoms warranted it. However, the veteran refused to undergo the procedure, stating that his symptoms were not that bad. The veteran's first complaints of left knee pain were found in a VA outpatient treatment (VAOPT) note from June 1983. He stated that he had been experiencing pain and swelling in his left knee for the past 2 to 3 weeks. He also complained of left knee weakness. VA examination in June 1983 noted that the veteran's left knee was tender on the medial aspect. There was no grinding of the patella, but there was some swelling in the joint. Hyperextension of the left knee was impossible. X-ray study revealed degenerative arthritis with spurs arising from all of the bony components, including the patella. There was fullness of the suprapatellar bursa indicating the presence of fluid. VAOPT records in the latter part of the 1980's documented the presence of degenerative osteoarthritis of both knees. This case was referred to an independent medical expert in January 1993 for an opinion as to what relationship, if any, existed between the service-connected right foot and ankle disability and the veteran's left knee disability. In March 1993, the independent medical expert rendered his opinion. After outlining all the evidence of record, this expert rendered the following opinion: This patient had sustained his original injury, low energy type, at the age of 21 in 1945. He was treated at that time with a closed reduction cast, immobilization and then rehabilitated. At the age of 59 years, some 38 years since the initial injury, the first documentation of complaints referable to his knees particularly the left knee occurs. There is absolutely no documentation in his records at any time that he had sustained injury to the right or left knee or any other associated joints. The original fall was estimated to have been some 7 feet and the injury was closed. The X- ray findings as reported in his records are consistent with degenerative osteoarthritis occurring bilateral, worse on the left than on the right, with no suggestion of any post fracture residuals. There is no documentation of any ligamentous or intra-articular injuries in the past. His complaints of knee arthritis are consistent with his age. It is my medical opinion that there is no etiological relationship between the initial injury which he sustained in 1945 and the subsequent complaints referable to his left knee which surfaced 38 years later in 1983. A statement dated December 2, 1996 from James C. Barnett, MD, an orthopedist, indicates that in his opinion that from an orthopaedic standpoint the degenerative arthritis of the veteran's knee was aggravated by the post-traumatic degenerative arthritic process in his right ankle. It would be difficult to connect the degenerative arthritis process in his right ankle with the degenerative process in his left knee. A medical opinion of February 1999 from Craig N. Bash, MD, a neuroradiologist, was submitted into evidence at the February 1999 Board hearing. Dr. Bash noted that he had reviewed the claim file of the veteran, including radiographic reports. He also noted that he had observed the veteran's gait. He agreed with the opinion of Dr. Barnett in the letter dated December 2, 1997 [the actual date is December 2, 1996]. The veteran incurred a significant inservice injury of his right ankle in 1946 and, as Dr. Bash had recently observed, the veteran's gait had been altered as a result. This gait alteration exerted forces on the joints of the lower extremities in an unnatural manner, resulting in an acceleration of the deterioration of those joints. By the veteran's history and as indicated in the record, there had been no injury of the knees which would explain the deterioration of his knees. The veteran had stated that he had not participated in ballroom dancing to the extent that the VA RO had suggested and that his significant work history was that of executive work, performed while sitting at a desk. In sum, Dr. Bash opined that the deterioration of both of the veteran's knees was accelerated by his unnatural gait and, was in this manner, aggravated by his original service- connected right ankle injury. Law and Regulations Secondary service connection is warranted when a disability is proximately due to or the result of a service-connected disease or injury (38 C.F.R. § 3.310(a) or, to the extent of any increase, there is aggravation, i.e., additional disability, of a nonservice-connected disability due to a service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Board must determine whether the weight of the evidence supports each claim or is in relative equipoise, with the appellant prevailing in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski 1 Vet. App. 49 (1990). Analysis At the time of the original IME obtained in 1993 the Court had not rendered its' decision in Allen, supra, (entered on March 17, 1995) which established the legal principle to the extent of any increase, there is aggravation, i.e., additional disability, of a nonservice-connected disability due to a service-connected disorder (secondary aggravation). Accordingly, the IME in 1993 was not requested to address that matter. However, this matter has subsequently been addressed by two physicians, in 1996 and 1999, and both have expressed their opinion regarding the veteran's service- connected right ankle and foot, and the deterioration of both knee joints. These medical opinions are unrebutted. The Board may not rely upon its own medical judgment but is bound to making a decision based solely on the evidence of record. Colvin v. Derwinski, 1 Vet. App. 171, 174 (1991). Accordingly, service connection for left knee disability and for right knee disability, both claimed as secondary to service-connected disability of the right ankle and right foot, is warranted. ORDER Service connection for left knee disability, claimed as secondary to service-connected disability of the right ankle and right foot, is granted. Service connection for right knee disability, claimed as secondary to service-connected disability of the right ankle and right foot, is granted. A. BRYANT Member, Board of Veterans' Appeals