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Sucess is Subjective, I think I won, and I am done. Late Entry: this was awarded 2016
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Question
Shellback-
http://www.va.gov/vetapp00/files2/0010802.txt
On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne,
Wyoming
THE ISSUE
Entitlement to service connection for left knee disability,
secondary to service-connected right knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
INTRODUCTION
The veteran served on active duty from September 1966 to July
1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a July 1998 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cheyenne, Wyoming.
FINDINGS OF FACT
Degenerative joint disease of the left knee is aggravated by
the veteran's service-connected right knee disability.
CONCLUSION OF LAW
Service connection is warranted for left knee disability as
secondary to the veteran's service-connected right knee
disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R.
§§ 3.303(a), 3.310(a) (1999).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran contends that due to years of overcompensating
for his right knee disability, he began to experience pain
and fatigue in his left knee as well. The veteran further
contends that a physician diagnosed his condition as
degenerative joint disease of the left knee, exacerbated by
degenerative joint disease of the service-connected right
knee.
A claim for secondary service connection must be granted when
a disability "is proximately due to or the result of a
service-connected disease or injury." 38 C.F.R. § 3.310(a)
(1998). The United States Court of Appeals for Veterans
Claims (known as the United Stated Court of Veterans Appeals
prior to March 1, 1999) (hereinafter, "the Court") has held
that compensation can be awarded for a nonservice-connected
disability that is aggravated by a service-connected
disability for the degree of disability over and above the
degree of disability existing prior to the aggravation, even
if the service-connected disability is not the proximate
cause of the nonservice-connected disability. Allen v.
Brown, 7 Vet. App. 439, 448-449 (1995).
Like all claims, a claim for secondary service connection
must be supported by "evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well
grounded." 38 U.S.C.A. § 5107(a); Buckley v. West, 12 Vet.
App. 76, 84 (1998). A well-grounded claim is "a plausible
claim, one which is meritorious on its own or capable of
substantiation. Such a claim need not be conclusive but only
possible to satisfy the initial burden of [section 5107(a)]."
Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Generally,
for a claim to be well grounded, a claimant must submit each
of the following: (1) a medical diagnosis of a current
disability; (2) medical evidence, or in certain circumstances
lay evidence, of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the in-service injury or disease and the current
disability. See Caluza v. Brown, 7 Vet. App. 498, 506
(1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996).
With regard to a claim for secondary service connection, a
claimant must provide competent evidence that the secondary
condition was caused by the service-connected condition. See
Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v.
Brown, 7 Vet. App. 513, 516-17 (1995). The credibility of
the evidence is presumed when determining whether a claim is
well grounded. See Robinette v. Brown, 8 Vet. App. 69, 75-76
(1995); King v. Brown, 5 Vet. App. 19, 21 (1993). However,
the presumption of credibility does not apply where a fact
asserted is beyond a person's competency or where the
evidence is inherently false. See id.
Based on the evidence of record, the Board finds that the
veteran's claim for service connection for left knee
disability, secondary to the service-connected right knee
disability, is well grounded. 38 U.S.C.A. §5107(a) (West
1991). The VA has a duty to assist the veteran in the
development of all facts pertinent to his claim. 38 U.S.C.A.
§ 5107(a); 38 C.F.R. § 3.103(a) (1999). The claims folder
contains all available service medical records and the RO has
requested and received the available reports of VA medical
examinations and VA outpatient treatment records. The
veteran has submitted numerous private treatment records. It
appears that all necessary development has been completed,
and the VA has satisfied its duty to assist the veteran under
these circumstances. 38 U.S.C.A. § 5107(a).
In this case, the evidence shows that the appellant suffers
from a current disability of the left knee, and there is no
dispute that he is service-connected for a right knee
disability. The question before the Board is whether there
is competent evidence to demonstrate a reasonable possibility
that the left knee disability was proximately caused or
aggravated by the service-connected right knee disability.
The veteran's service medical records are negative for a
chronic left knee disability. A medical record from Robert
S. Schultz, M. D., dated in September 1996 notes that the
veteran had developed pain in the left knee in the past six
months without a history of injury. The physical examination
showed that the left knee was tender over the patellar
tendon. The diagnoses were bipartite patella and left knee
patellar tendinitis. Dr. Schultz further noted that the left
knee problem "could possibly be influenced by the presence
of his right knee difficulties. I, however, cannot state
without qualification that it is directly related to his
right knee problem."
A VA compensation and pension examination report dated in
November 1996 notes that the veteran reported that he started
to have problems with his left knee, above and below the
kneecap, with pain on a daily basis approximately four months
earlier. The examination showed that the veteran had
tenderness above and below both kneecaps. There was some
limitation of motion which worsened after repetitive motion.
The diagnosis was bilateral chondromalacia. The examiner
noted that she believed that the veteran's left knee
condition was not caused by his right knee condition, but
were coincidental and that both were related to the veteran's
anatomy and occupation.
A VA outpatient treatment record dated in April 1997 shows
that the veteran had some degenerative joint disease
beginning in the left knee. It was further noted by the
physician that the left knee degenerative joint disease was
"exacerbated" by the service-connected degenerative joint
disease of the right knee.
A June 1997 VA compensation and pension evaluation report by
a private physician, M. D., notes that the
veteran's medical records were reviewed and there were
conflicting medical opinions as to whether the veteran's left
knee disability was related to the service-connected right
knee disability. The examiner noted that X-rays of both
knees showed congenital bipartite patella on both knees.
There was very minimal degenerative joint disease on the left
knee with a slight medial joint space narrowing. The
assessment of the left knee was very minimal, if any,
degenerative arthritis. The examiner provided his opinion
that the service-connected right knee condition had not
caused the veteran to develop degenerative joint disease in
the left knee. He further stated that the left knee
disability was likely due to the veteran's activities, as
well as his functional anatomy. In addition, he provided his
medical opinion, that the left knee pain was not caused or
exacerbated by the service-connected right knee disability.
In a statement from Dr. , dated in March 1998, he
noted that compensating for an opposite extremity may
increase or exacerbate problems in the opposite extremity.
He further noted that "t is not uncommon for people to
experience similar discomforts in both knees with this type
of anterior knee pain problem." However, he noted that he
could not directly relate the veteran's left knee problem to
his service-connected right knee disability.
In a treatment record dated in April 1998,M.
D., noted that it was possible that having pain and
discomfort in the right knee caused the veteran to put more
pressure on his left patellofemoral joint resulting in
aggravation of the symptoms.
In a VA outpatient treatment record dated in May 1998, the
physician noted that the veteran was service connected for
right knee disability and had over the years favored that
knee with a bit of an altered gait and with pain in the left
knee the more he walked on it. The physician also referred
to the medical opinion provided by Dr. in April 1998.
In a February 1999 statement, the veteran's wife noted that
he had started to complain of pain in his left knee.
According to his wife, the left knee pain may be because the
veteran seems to favor and guard his right knee.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the appellant prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990). When, after consideration
of all of the evidence and material of record in an
appropriate case before VA, there is an approximate balance
of positive and negative evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving each such issue shall be
given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38
C.F.R. §§ 3.102, 4.3 (1999).
The evidence shows that the service-connected right knee
disability did not directly cause the left knee disability.
However, the evidence contains conflicting medical opinions
regarding whether the service-connected right knee disability
has exacerbated the left knee disability. The medical
evidence from Dr. Schultz and the April 1997 VA outpatient
treatment record indicate that the left knee disability is
exacerbated by the service-connected right knee disability.
The VA examination reports dated in November 1996 and June
1997 indicate that the left knee pain is not caused or
exacerbated by the service-connected right knee disability.
The medical evidence, therefore, is in equipoise and the
benefit of the doubt is rendered in favor of the veteran.
Accordingly, the Board finds that competent evidence of
record supports the claim for service connection for a left
knee disability, secondary to the service-connected right
knee disability.
The Board notes that service connection for bipartite patella
of the left knee is not warranted. It is noted in the June
1997 VA examination report that this disability is congenital
in origin. Congenital defects are not disabilities for
compensation purposes. 38 C.F.R. § 3.303© (1999).
However, the evidence shows that the veteran also has
degenerative joint disease of the left knee, and there is a
basis for a grant of service connection for that disability
of the left knee, secondary to the service-connected right
knee disability.
ORDER
Service connection for degenerative joint disease of the left
knee, as secondary to the veteran's service-connected right
knee disability, is granted.
!! nothing that a ride on the old Harley can't fix !!
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