BVA9508303 DOCKET NO. 93-15 031 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for a low back disorder and a disorder of the knees. 2. Entitlement to an increased rating for the residuals of a fracture of the left tibia, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joseph P. Gervasio, Jr., Counsel INTRODUCTION The veteran served on active duty from March 1943 to March 1946. This case comes to the Board of Veterans' Appeals (Board) on appeal of an April 1992 rating decision of the Portland, Oregon, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied an increased rating for residuals of a left tibial fracture, denied service connection for a bilateral knee condition, and found that new and material evidence had not been submitted to reopen a claim for service connection for a low back condition. In a September 1987 decision of the Board, service connection for a low back disorder was denied. After review of the record, I find that new and material evidence to reopen the claim has been submitted and the claim will be reviewed on a de novo basis. The issue of an increased rating for residuals of a left tibial fracture will be handled in the remand portion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his knee disabilities and low back disorder resulted from his service-connected left tibia fracture residuals. He says that his left knee was injured at the time his fracture was sustained during service and that his right knee and low back conditions were caused by gait abnormalities associated with his left tibial fracture. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence supports the claims for service connection for low back and bilateral knee disabilities. FINDINGS OF FACT 1. Left knee disability is a probable residual of the left tibial fracture sustained during service. 2. Low back and right knee disabilities were probably aggravated by the residuals of the service-connected left tibial fracture. CONCLUSIONS OF LAW 1. A left knee disorder was incurred as a result of service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(1994). 2. A low back disorder and a right knee disorder were aggravated by the service-connected residuals of a left tibial fracture. 38 C.F.R. § 3.310(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background The veteran served on active duty from March 1943 to March 1946. Service medical records show that in August 1945, the veteran sustained a compound fracture of the left tibia. His leg was casted. In October 1945, it was noted that he had complaints of occasional weakness of the left leg. On examination for separation from service, slight posterior bowing of the left tibia was noted. There was no muscle atrophy. There were no complaints concerning either knee or the low back. An examination was performed by VA in February 1949. The veteran's only complaints concerned his left leg. The diagnosis was residual symptoms of a compound fracture of the left tibia. By rating action in April 1949, service connection was established, and a 10 percent evaluation assigned, for residuals of a fracture of the left tibia. In a March 1974 letter, H. W. Hawkins, D.O., reported the results of a February 1974 examination performed at the request of a state vocational rehabilitation department. He reported the veteran's history of left tibia fracture in 1944 and indicated that the veteran reported having a left leg that was shorter than the right as a result of that injury. The doctor reported that the veteran had recently been thrown from a donkey, landing on his low back, suffering a recurrence of very severe pain. The veteran's chief complaint was low back pain. The diagnoses were: (1) hypertrophic osteoarthritis of the lumbar spine and hips; (2) shortening of the left leg, with approximately 1/2 inch difference in comparative leg lengths; (3) chronic lumbosacral strain, aggravated by the hypertrophic arthritis and difference in leg lengths; (4) and chronic bilateral sciatica. An examination report, dated in July 1974, was received from R. Ray Johnson, M.D. He stated that the veteran's leg lengths were equal. The diagnoses were chronic degenerative disc disease and arthritis of the lumbosacral spine. He opined that there was nothing in the veteran's history to prove a cause and effect relation-ship between the veteran's back problems and the leg fracture sustained while in the Navy. VA outpatient treatment records include X-ray studies, dated in April 1981, of the left knee and lower leg as well as studies of the lumbar spine. The studies showed marked degenerative changes in the lower lumbar spine, post-traumatic deformity of the distal left tibia, and some degenerative changes of the left knee. An examination was performed by VA in June 1981. The diagnoses were a fracture of the left tibia, with minor malunion, and residual traumatic osteoarthritis of the left ankle joint. By rating decision in August 1981, the RO increased the evaluation for the residuals of a left tibia fracture to 20 percent. It has been continued at that rate ever since. VA outpatient treatment records from August 1986 to November 1991 have been reviewed. They show numerous orthopedic complaints, including low back and bilateral knee abnormalities. They also refer to an August 1987 automobile accident during which the veteran injured his left shoulder. An examination was performed by VA in October 1991. The veteran's chief complaint was pain in his back, neck, and knees. He reported that after he had fractured his left tibia in 1945, he experienced pain in his left knee, which continued following service. His low back pain developed during the 1950's, when he sought chiropractic treatment. The diagnoses were left tibia fracture; left knee injury, reportedly at the time of the tibia fracture, which had progressed to traumatic arthritis; right knee pain, developed in the 1960's and progressing to degenerative arthritis; and low back strain superimposed on degenerative stiffness and instability. The examiner indicated that he believed the veteran's left knee was injured at the time of the tibia fracture and seemed to be related to that injury, and that the veteran's right knee and low back conditions would probably have developed eventually, but probably "came on" sooner because of sequelae of the fracture left tibia and injured left knee. An examination was performed by VA in February 1992. The examiner stated that, regarding the question of whether left knee problems were related to the left tibia fracture, the veteran stated that he had injured his knee at the time of the accident in 1945. He went on to state that the left knee would have been strained by the fracture of the tibia and that the left knee would have had some impairment from immobilization for treatment of the tibia fracture. On the other hand, the veteran had a strong tendency towards degenerative arthritis in the knees and that this would contribute somewhat to the development of the knee disorder. The examiner stated that 60 percent of the left knee problem was due to the original tibia fracture and 40 percent to the tendency towards degenerative arthritis. Concerning the veteran's low back and right knee conditions and their relationship to the left tibia fracture, the examiner stated that he no longer believed the symptoms in those areas would have started earlier and worsened, but that the veteran would probably have developed difficulty with his low back and right knee even without the fracture of the left tibia. He stated that the was no probable, causal relationship between the left tibia fracture and the symptoms that occurred at the low back and right knee. II. Analysis The veteran's claims on appeal are well-grounded; that is, they are not inherently implausible. 38 U.S.C.A. § 5107(a). The facts relevant to the issues on appeal have been properly developed, and the statutory obligation of VA to assist the veteran in the development of his service connection claim has been satisfied. Id. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110. In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if they first become manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). A. Left Knee Disability The service medical records do not show that the veteran had complaints of a left knee disorder following his tibia fracture in 1945, despite the medical history he now gives to the contrary. However, in his 1991 examination report, the VA examiner, based on this medical history, indicated that the now diagnosed traumatic arthritis was a result of the injury. At the RO's request, another examination was performed in February 1992. Again, the examiner stated that the veteran would have some impairment of the left knee as a result of the fracture of the left tibia sustained during service. The examiner stated that the fracture of the tibia would have placed strain on the left knee and that the treatment would have caused some impairment of the left knee. He indicated that 60 percent of the present left knee symptomatology were attributable to the original tibia fracture. Statements by the VA examiners are highly probative and competent medical evidence in support of the claim. Moreover, such evidence is unrefuted. Hence, service connection for a left knee condition is established. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). B. Low Back and Right Knee Disorders Regarding the veteran's claim that his right knee and low back disorders are the result of this service-connected left tibial fracture residuals, there is a 1974 medical opinion of record establishing that the left leg disorder, which reportedly included a shortening of the left leg, had aggravated his lumbosacral strain. However, there is some competent medical evidence to the contrary in that when the veteran was subsequently examined, a medical opinion was rendered that there was no cause and effect relationship between his left leg condition and the low back strain. It was also determined that he had no shortening of his left leg (although the Board notes that bowing of the leg was noted soon after the injury and in the 1940's). On the other hand, in 1991, a VA examiner stated that the left leg condition would have accelerated or worsened the veteran's low back and right knee disorders, although the doctor subsequently seemed to disavow a causal relationship when the RO asked him to clarify his position. Nevertheless, when aggravation of a non-service-connected condition is proximately due to or the result of a service- connected condition, a 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 v. Brown, No. 93-245 (U.S. Vet. App. Mar. 17, 1995). This recent decision by the United States Court of Veterans Appeals (Court) broadens the ways secondary service connection may be granted. Prior to this time, the law regarding secondary service connection was interpreted as requiring a causal relationship, but this is no longer the case. The opinions of record that the low back and right knee conditions were worsened by the service-connected left tibia fracture residuals are sufficient to place the evidence at least in relative equipoise. As such, the benefit of the doubt is given to the veteran, and service connection is granted. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for a left knee disability, a right knee disability, and a low back disability is granted. REMAND The veteran has been service-connected for residuals of a fracture of the left tibia, which is rated on the degree of disability of the knee or ankle. His evaluation has, for many years, been based on disability of the left ankle. However, now that a grant of service connection for the left knee disorder has been entered, the Board finds that the RO must evaluate any additional disability attributable to the left knee as part of the overall disability picture. Hence, this issue must be REMANDED to the RO for the following actions: 1. The RO should ask the veteran and his representative to identify all sources of treatment (VA or non-VA) for the service- connected left knee disorder. Exact locations and dates of treatment should be provided. After obtaining any needed release forms, the RO should then directly contact the sources and obtain copies of all records not already on file. 38 C.F.R. § 3.159. 2. After the above information has been obtained and added to the record, the veteran should be scheduled for a VA orthopedic examination to determine the severity of his service-connected left knee disorder. All indicated studies should be performed and all clinical findings reported in detail. The examiner should express an opinion as to the severity of the service-connected left knee disorder, including the range of motion, measured degrees, degree of restriction of motion, degree of stability of the joint, and functional limitation caused by pain. The examiner should also describe the extent of impairment of the tibia, including whether it is manifested by moderate or marked disability of the knee or ankle joint. The examiner should support all opinions by discussing medical principles as applied to specific medical evidence in this case. In order to assist the physician in providing the requested information, the claims folder must be made available to the physician and reviewed prior to the examination. When this action is completed, the claim should be reviewed by the RO. Should the veteran be dissatisfied with the decision, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. Thereafter, the case should be returned to this Board for further appellate consideration. The veteran need take no action until he is notified. M. CHEEK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).