OSTEOARTHRITIS

Summary

The Veteran, a Veteran who served from August 1993 to April 1998, appeals the denial of service connection for a lumbar spine disability. The Board found that service connection for degenerative joint disease of the right knee, secondary to a service-connected left knee disability, was warranted. The Veteran's left knee condition, present since service, had worsened over time, leading to a total knee replacement in 2019. A treating physician opined that the Veteran's right knee degeneration was likely secondary to overuse caused by the left knee impairment. The Board found this opinion persuasive, establishing a nexus for the right knee claim. However, the claim for lumbar spine disability was remanded. The AOJ failed to obtain an adequate medical opinion addressing the secondary nature of the lumbar spine condition in relation to the Veteran's left knee impairment. The VA examiner incorrectly focused only on the total knee replacement, rather than the long-standing history of the left knee disability and its impact on the lumbar spine. The case was remanded for a proper VA examination to address the lumbar spine claim.

Rationale

Treating physician opined right knee degeneration likely secondary to overuse from left knee impairment.; Board found opinion persuasive, establishing nexus for right knee claim.; Service-connected left knee disability contributed to and accelerated right knee degeneration.

Full Decision Text

Citation Nr: A26032222
Decision Date: 04/08/26	Archive Date: 04/08/26

DOCKET NO. 200831-107480
DATE: April 8, 2026

ORDER

Service connection for degenerative joint disease of the right knee as secondary to service-connected left knee disability which includes degenerative joint disease with instability is granted.

REMANDED

The appeal for entitlement to service connection for a disability of the lumbar spine is remanded.

FINDING OF FACT

The Veteran's left knee impairment contributed to and accelerated the development of degenerative joint disease in the right knee.

CONCLUSION OF LAW

The criteria for service connection for right knee degenerative joint disease as secondary to the service-connected left knee disability have been met.  38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.310.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from August 1993 to April 1998, when he was discharged for disability.  

This matter comes before the Board of Veterans' Appeals (Board) from an August 2020 decision by the Agency of Original Jurisdiction (AOJ).  The Veteran filed a VA Form 10182 with the Board the same month.  He requested a hearing before a Veterans Law Judge.  The hearing was held before the undersigned Judge in August 2024.

Therefore, the Board may only consider the evidence of record at the time of the August 2020 AOJ decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing.  38 C.F.R. § 20.302(a).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence.  38 C.F.R. § 3.2501.  If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered.  Id.  Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim for entitlement to service connection for a disability of the lumbar spine, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim.  38 C.F.R. § 3.103(c)(2)(ii).

Once the evidence has been assembled, it is the Board's responsibility to evaluate the record.  38 U.S.C. § 7104(a).  A claimant bears the evidentiary burden to establish entitlement to the benefit sought.  See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).  The benefit of the doubt applies when the evidence for and against is in "approximate balance" or "nearly equal," but does not apply when the evidence persuasively favors one side or the other.  Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. Dec. 17, 2021) (en banc).

Service connection may be granted for a current disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C. §§ 1110; 38 C.F.R. §§ 3.303.  Service connection may also 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).  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Secondary service
. §§ 1110; 38 C.F.R. §§ 3.303.  Service connection may also 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).  Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Secondary service connection may be established for a disability which is caused or aggravated by service-connected disease or injury.  38 C.F.R. § 3.310(a).  Secondary service connection is warranted when service connected disability caused the non-service connected condition, or where the non-service-connected disability would have been less severe "but-for" a service-connected disability, either because there is an etiological link (to include worsening of functionality) between the two, or because the service-connected disability resulted in the inability to treat the non-service-connected disability.  Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023).

Service connection may also be established on a secondary basis if there is evidence showing that the disability is (1) caused by a service-connected disease or injury or (2) aggravated by a service-connected disease or injury.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310.

Any additional impairment of earning capacity resulting from service-connected disabilities is compensated whether the additional impairment is caused or aggravated by those disabilities.  El-Amin v. Shinseki, 26 Vet. App. 136, 138 (2013); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310.  "[W]hen aggravation of a Veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation."  Allen, 7 Vet. App. at 448.  A medical examination report that fails to consider both causation and aggravation is inadequate for rating purposes.  El-Amin, 26 Vet. App. at 140.

Service connection for degenerative joint disease of the left knee was granted immediately following the Veteran's discharge from service in April 1998, and has been in effect since that time.  Over the intervening years, the left knee has worsened, to the point that he required a total knee replacement in 2019.  The Veteran has asserted for many years that he experiences right knee impairment which is secondary to his left knee impairment.  

In support of his most recent attempt to obtain service connection for his right knee impairment, he submitted a medical opinion from one of his treating physicians, who has a specialty in arthroscopic reconstructive surgery and joint replacement.  This physician opined that, "I think it is likely that the majority of accelerated degeneration of the right knee is secondary to the overuse of the right knee because he has degenerative and injured left knee."  

Based upon this informed statement from a physician who has been treating the Veteran and is familiar with his situation, the Board concludes that the Veteran's service-connected left knee disability, which has been present since service, has contributed to and accelerated the development of degenerative joint disease in the right knee.  Service connection for the right knee is therefore warranted based upon contribution and aggravation from the service-connected left knee.  The benefit sought is therefore granted. 

REASONS FOR REMAND

In the modernized review system, the Board's jurisdiction to remand is limited to correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim.  38 C.F.R. § 20.802(a).  

In this case, remand is necessary due to a pre-decisional failure in the duty to assist the Veteran in fully developing his claim for service connection. 

In the effort to substantiate the Veteran's claim that his low back disability is secondary to his long-standing left knee disabilities, which include degenerative joint
 is limited to correction of (1) duty to assist errors occurring prior to the date of the AOJ decision on appeal (i.e., pre-decisional duty to assist errors) and (2) AOJ errors in satisfying a regulatory or statutory duty, if correction of such error would have a reasonable possibility of aiding in substantiating the appellant's claim.  38 C.F.R. § 20.802(a).  

In this case, remand is necessary due to a pre-decisional failure in the duty to assist the Veteran in fully developing his claim for service connection. 

In the effort to substantiate the Veteran's claim that his low back disability is secondary to his long-standing left knee disabilities, which include degenerative joint disease and instability, with a total knee replacement in 2019; the AOJ obtained a VA medical opinion.  Unfortunately, the examiner misunderstood the question being asked.  Rather than discuss the Veteran's left knee disability since the Veteran's discharge from service and the impact of the disability as a whole, the examiner merely opined that the Veteran's currently shown lumbar spine degenerative joint disease was unrelated to the total knee replacement performed in 2019.  As the medical question at issue pertains to the history of the Veteran's left knee impairment, and the impact of such impairment upon the Veteran's low back disability, the medical opinion obtained was inadequate.  

The failure to obtain an adequate medical opinion pertaining to the Veteran's lumbar spine disability constitutes a pre-decisional duty to assist error and remand is therefore warranted.  

The matters are REMANDED for the following action:

1. Afford the Veteran appropriate examination.  The reviewer is requested to review the Veteran's medical history beginning immediately after service when the Veteran's left knee disability was granted service connection.  The reviewer is then requested to form an informed medical opinion as to whether the currently shown lumbar degenerative disease was caused by, aggravated by, or contributed to by the service-connected left knee disability over the years.  A complete rational for all opinions expressed should be fully explained.

The examiner should consider the rationale from the Veteran's orthopedic provider. See Medical Treatment Record - Non-Government Facility received May 29, 2020.

 

 

T. MAINELLI

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Harter, Heather J.

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.