Citation Nr: 1761156
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 15-22 547 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana

THE ISSUE

Entitlement to service connection for strain and arthritis of the left knee (a left knee disability), including as secondary to the service-connected back disability.

REPRESENTATION

Appellant represented by: Disabled American Veterans

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

A. Tenney, Associate Counsel

INTRODUCTION

The Veteran, who is the appellant in this case, served on active duty from February 1946 to July 1947.

This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

In October 2015, the Veteran testified at a Board hearing held before the undersigned Veterans Law Judge in Indianapolis, Indiana (a Travel Board hearing). A transcript of the Board hearing has been associated with record.

In November 2016, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. As the instant decision grants service connection for a left knee disability, an additional remand to comply with the November 2016 directives is not required. Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board’s docket. 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2017).

FINDING OF FACT

The currently diagnosed left knee disability was caused by the service-connected back disability.

CONCLUSION OF LAW

Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a left knee disability, as secondary to service-connected back disability, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310 (2017).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims and Assistance Act of 2002 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R.
§§ 3.102, 3.159, 3.326(a) (2017). As the instant decision grants service connection for a left knee disability, there remains no aspect of the claim to be further substantiated; therefore, there is no further VCAA duty to notify or assist, or to explain compliance with VCAA duties to notify and assist.

Service Connection for Left Knee Disability

Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498,
506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996).

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.
38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439,
448 (1995).

As adjudicated below, the Board is granting service connection for a left knee disability based on secondary service connection under 38 C.F.R. § 3.310. As such, the additional service connection theories of presumptive service connection and/or direct service connection pursuant to the same benefit are rendered moot, and there remain no questions of law or fact as to the fully granted service connection issue. For these reasons, the direct and presumptive service connection theories will not be further discussed with respect to service connection for a left knee disability. See 38 U.S.C. § 7104 (stating that the Board decides questions of law or fact).

The Veteran contends generally that a left knee disability is due to service or is secondary to the service-connected back disability. At the October 2015 Board hearing, the Veteran testified to injuring the left knee during an in-service basketball game.

The evidence of record reflects the Veteran has a currently diagnosed left knee disability. The May 2016 VA examination report reflects that the Veteran was diagnosed with left knee strain and arthritis. See May 2016 VA examination report.

At the December 2016 VA examination, the VA examiner opined that the left knee disability is less likely than not proximately due to, or the result of, the service-connected back disability because there was no evidence that the left knee disability is secondary to, or chronically worsened by, the service-connected back disability (lumbar arthritis). The VA examiner in December 2016 explained that there is no evidence of any connection and there is no clearly abnormal gait that could have placed undue strain on the left knee; however, the VA examiner also indicated in the December 2016 VA examination report that the Veteran regularly uses a walker as a normal mode of locomotion. As noted by the November 2016 Board remand, the VA examiner did not explain the significance, if any, of the use of the assistive device (walker) on the Veteran’s gait, or the effect, if any, on the Veteran’s gait without the use of the walker. For this reason, in October 2017, the Board requested Veterans Health Administration (VHA) opinion to clarify whether the service-connected back disability caused or aggravated the left knee disability.

In a December 2017 VHA opinion report, a specialist specifically attributed the left knee disability to the service-connected back disability. The specialist reasoned that the left leg is used to compensate for residuals of the service-connected back disability, and that the abnormal gait, with or without a walker, accelerated any degenerative changes in the left knee. The December 2017 VHA report contained reasons and bases supporting the specialist’s opinion that the left knee disability was caused by the service-connected back disability. As such, the Board accords the December 2017 VHA opinion report high probative weight.

Based on the above, and resolving reasonable doubt in favor of the Veteran, service connection for a left knee disability, as secondary to the service-connected back disability, is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The grant of secondary service connection renders moot other theories of service connection.

ORDER

Service connection for a left knee disability, as secondary to the service-connected back disability, is granted.

____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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