Citation Nr: 18160640
Decision Date: 12/28/18	Archive Date: 12/27/18

DOCKET NO. 15-29 404
DATE:	December 28, 2018
ORDER
Entitlement to service connection for right knee status-post total knee arthoplasty, claimed as secondary to service-connected degenerative disc disease (DDD) of lumbar spine, is granted.
FINDING OF FACT
The Veteran’s currently diagnosed right knee disability, status-post total knee arthroplasty, is as likely as not proximately caused by his service-connected lumbar spine disability.
CONCLUSION OF LAW
The criteria for entitlement to service connection for a right knee disability, status-post total knee arthroplasty, are met.  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 1964 to January 1965 and from June 1967 to July 1967; he had additional service in the Army National Guard.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
In December 2018, the Veteran presented sworn testimony during a videoconference hearing, which was chaired by the undersigned Veterans Law Judge.  
At the December 2018 Board hearing, the Veteran submitted additional evidence directly to the Board.  At that time, he also waived local consideration of this evidence.  See 38 C.F.R. §§ 19.9, 20.1304(c) (2018).
1. Entitlement to service connection for right knee disability, status-post total knee arthroplasty.
In order to establish direct service connection for the claimed disorder, generally, there must be competent and credible 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 current disability.  See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  Lay evidence can be competent and sufficient to establish the elements of service connection when (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.  See Jandreau, 492 F.3d at 1377.
Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability.  See 38 C.F.R. § 3.310(a); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993).  Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a).  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Board notes that there has been an amendment to the provisions of 38 C.F.R. § 3.310.  See 71 Fed. Reg. 52,744 -47 (Sept. 7, 2006).  The amendment sets a standard by which a claim based on aggravation of a non-service-connected disability by a service-connected one is judged.
Here, the Veteran asserts that he suffers from a right knee disability, which is due to his service-connected DDD of the lumbar spine.  See the Veteran’s claim dated December 2014.  He specifically contends that his abnormal gait is due to his lumbar spine disability, which caused a right knee disability.  See the VA Form 9 dated July 2015.  The Board has reviewed the record and concludes that the evidence supports an award of service connection for currently diagnosed right knee disability, status-post total knee arthroplasty.
The Board initially notes that the Veteran is service-connected for DDD of the lumbar spine, radiculopathy of the right lower extremity, and left knee, status-post total knee replacement as secondary to DDD of the lumbar spine.
As indicated above, the Veteran served on active duty from August 1964 to January 1965 and from June 1967 to July 1967 with additional service in the Army National Guard.  His service treatment records do not document any disabilities of the right knee.
A VA examination dated in March 2009 indicated that the Veteran exhibited an arthralgic gait and stooped posture due to his service-connected DDD of the lumbar spine.  VA treatment records dated in April 2009 indicated that the Veteran was issued a cane to help with his gait.
The Veteran was afforded a VA examination in July 2009 as to a claimed left knee disability, at which time examiner confirmed a diagnosis of degenerative joint disease (DJD) of the right and left knees based upon x-ray findings.  The examiner then rendered an opinion that the Veteran’s DJD of the left knee is at least as likely as not (50/50 probability) caused by or a result of his lumbar spine disability.  The examiner explained, “[a]ny weight-bearing joint or joints within the axial skeletal system can suffer from degenerative changes as a result of long-standing alteration in gait/mechanics of ambulation, as is the case with this Veteran due to a long history of lower back pain/dysfunction.”  As indicated above, the Veteran was subsequently granted service connection for left knee, status-post total replacement, as secondary to his service-connected DDD of the lumbar spine.  See the rating decision dated September 2008.
VA treatment records dated in January 2012 and July 2012 documented the Veteran’s report of right knee pain due to DJD.  Private treatment records dated in September 2014 noted that the Veteran had a “long history of issues with right knee.”  He underwent a right total knee arthroplasty in December 2014.  See the VA treatment records dated in December 2014.
In a May 2015 statement, Dr. A.L. reported, “right knee replacement is related to [a] service-connected disability.”  However, Dr. A.L. did not identify to which service-connected disability he was referring and he also failed to provide any rationale to support the conclusion rendered.  See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence).
The Veteran was afforded a VA medical opinion in June 2015 as to his claimed right knee disability.  The examiner stated that the Veteran’s “right knee replacement is less likely than not (less than 50 percent) caused by, or a result of the DDD of the lumbar spine.”  The examiner indicated, “[i]t is more likely that the trauma that the Veteran sustained to the right knee on April 2014 was the basis for the meniscal tear of the right knee.  The tear formed the basis for the Veteran’s increased knee pain and new complaint of the right knee giving way.”  The examiner indicated that the Veteran’s right knee instability was not present before April 2014.  The examiner then stated, “[t]here is no evidence in the medical literature that an excess weight distribution to the right or left knees occurs due to a favoring of the lumbar spine condition.”  The examiner also reported that the Veteran’s right knee disability “is less likely than not (less than 50 percent) aggravated beyond its natural progression by the service-connected low back condition.”  The examiner explained, “as no significant complications have been seen in association with the right knee, one cannot expect any aggravation from the lumbar spine condition.”
In support of his claim, the Veteran submitted a December 2018 clarifying opinion from Dr. A.L., who explained that the Veteran’s right knee disability is secondary to his service-connected lumbar spine disability.  Dr. A.L. explained that the Veteran’s altered gait due to his back disability compromised his right knee leading to progressive degenerative changes.  These degenerative changes resulted in the December 2014 right total knee replacement.  See the physician’s nexus statement dated December 2018.
Thus, there is conflicting medical evidence of record concerning the question of nexus between the Veteran’s current right knee disability and his service-connected lumbar spine disability.  The Board has the authority to “discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.”  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  However, the Court has held that the Board may not reject medical opinions based on its own medical judgment.  See Obert v. Brown, 5 Vet. App. 30 (1993).
Critically, the June 2015 VA examiner’s negative nexus opinion is inconsistent with the medical evidence of record, which documented DJD of the right knee diagnosed prior to the 2014 trauma cited by the examiner.  Moreover, the examiner’s opinion as to the question of aggravation was wholly inadequate and irrelevant to the conclusion rendered.  Thus, given the inadequacies of the June 2015 VA medical opinion, the Board finds this opinion to be of little probative value.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).
In contrast, in his December 2018 statement, Dr. A.L. indicated that the Veteran’s currently diagnosed right knee, status-post total knee arthoplasty, is caused by his service-connected lumbar spine disability.  This opinion is supported by the medical evidence of record including treatment records documenting the Veteran’s antalgic gait caused by his lumbar spine disability as well as the findings of the July 2009 VA examiner who determined that the Veteran’s left knee, status-post total knee arthoplasty, is caused by his antalgic gait due to low back dysfunction.
Overall, the Board finds that the record supports the award of service connection for a right knee disability.  It is undisputed that the Veteran is diagnosed with DJD of the right knee, status-post knee replacement, and has thus met the current disability requirement.  Moreover, given the positive nexus opinions from Dr. A.L. and the credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the current right knee disability is caused by his service-connected lumbar spine disability.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a right knee disability is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. K. Buckley, Counsel 

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