Interesting Read

[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.

[carlie]

I don't quite understand what is unusual or interesting about this particular claim ?

Give me a hint as I'm probably missing something.

Thanks

[Shellback-]

I don't quite understand what is unusual or interesting about this particular claim ?

Give me a hint as I'm probably missing something.

Thanks

I guess just news to Me then- this is the first I had heard of someone connecting a knee condition with secondary back conditions-kind of a eye opener for Me-I guess You guys have seen all this before.

[Pete53]

Shellback

It is interesting to know and I am pretty sure there are plenty of Veterans who could be service connected for secondary conditions that don't know it.

Right now there are thousands of Veterans who could get higher ratings SMC that are unaware. The VA itself has estimated only 5% that should have it have applied for it. Many nursing homes have caught n and are helping Veterans get it.

[john999]

Vets should be aware of these secondary conditions and that they need a good medical report to make the connection. You can't expect the VA to usually make it for you. If you believe your current back problems are caused or aggravated by a SC knee condition you have to have medical evidence to make that connection. It is not just common sense which may seem obvious to most of us.

[carlie]

I guess just news to Me then- this is the first I had heard of someone connecting a knee condition with secondary back conditions-kind of a eye opener for Me-I guess You guys have seen all this before.

Shell,

Something to put emphasis on this claim would be not only can a was a secondary condition

granted SC BUT THE REASON it was granted SC.

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.

[Shellback-]

Shellback

It is interesting to know and I am pretty sure there are plenty of Veterans who could be service connected for secondary conditions that don't know it.

Right now there are thousands of Veterans who could get higher ratings SMC that are unaware. The VA itself has estimated only 5% that should have it have applied for it. Many nursing homes have caught n and are helping Veterans get it.

Thanks Pete- I know I was one of them until very recently !! I know My grandfather was one of them up until He passed about 13 years ago-He had Malaria from His UDT days and being in Guadal canal for WW2-suffered with it up until the end-He never asked for help from the VA regardless-it was just His way.