UNITED STATES COURT OF VETERANS APPEALS

No. 93-245

Alfred E. Allen, Appellant,

v\.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Decided March 17, 1995 )

Michael P. Horan and Kathryn D. Russiello were on the brief for the
appellant.

Mary Lou Keener, General Counsel; Norman G. Cooper, Assistant General
Counsel;

Adrienne Koerber, Deputy Assistant General Counsel; and Michele R.
Katina were on the

brief for the appellee.

George T. Estry (non-attorney practitioner) was on the brief for
Veterans of Foreign

Wars as amicus curiae.

Before NEBEKER, Chief Judge, and KRAMER, FARLEY, MANKIN,

HOLDAWAY, IVERS, and STEINBERG, Judges.

KRAMER, Judge, filed the opinion of the Court. FARLEY, Judge, filed a
dissenting

opinion in which NEBEKER, Chief Judge, joined. HOLDAWAY, Judge, filed a
separate

dissenting opinion.

KRAMER, Judge: The appellant, Alfred E. Allen, appeals a November 19,
1992,

decision of the Board of Veterans\' Appeals (BVA or Board) which denied
entitlement to

service connection on a secondary basis for osteoarthritis of both hips
and of the left knee.

The Court has jurisdiction under 38 U.S.C. § 7252(a). For the reasons
set forth below, the

BVA decision is vacated, and the matter is remanded for proceedings
consistent with this

opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The appellant had active service from November 1955 to October 1957.
Record

(R.) at 94. His induction examination was normal. R. at 11-12. Service
medical records

reveal that in February 1956, the appellant sustained a strain of the
paraspinal muscles

without any evidence of fracture or dislocation. R. at 38, 43, 46, 71,
88. His separation

examination, conducted on August 26, 1957, was normal. R. at 67-68. On
August 28, 1957,

the appellant sustained a sprain of the medial collateral ligament of
the right knee. R. at

52-66.

In August 1967, a VA regional office (RO) denied entitlement to service
connection

for residuals of a right knee injury, and the appellant did not appeal.
R. at 110. Although

a February 1988 RO decision once again denied entitlement to service
connection for

residuals of a right knee injury (R. at 110), the BVA determined that
the evidence presented

since the unappealed August 1967 rating decision warranted a finding of
service connection

for residuals of a right knee injury (R. at 113). In June 1989, the RO
assigned a 20% rating

for traumatic arthritis, right knee, under 38 C.F.R. § 4.71a, Diagnostic
Code 5010-5257

(1988). R. at 115.

In September 1989, the appellant\'s service representative sent the
following letter to

the RO:

The above-named veteran contacted our office requesting an

increase for his service\[-\]connected right knee condition. He is

having a great deal more limitation of motion and pain.

Also, his left hip and left knee are being affected because of

favoring his right knee. At his last VA exam, the doctor

informed him that because of his service connected right knee,

his gait was the primary reason for his left leg problems.

Therefore, we wish to file a claim for service connection for his

left hip and knee disability under 38 C.F.R. \[§\] 3.310 \[1989\].

R. at 117. That same month, a VA official made the following notation on
a VA Form 21-

2507, Request for Physical Examination:

The veteran claims left hip & left knee problems are directly

due to or proximately the result of his \[service-connected\] right

knee condition. Are they, or are they merely aggravated by the

\[service-connected\] right knee condition?

R. at 119 (emphasis added). A VA radiologic consultation report, also
dated in September

1989, revealed diagnoses of: (1) degenerative joint disease (DJD) in
both knees; (2)

sclerosis, posteromedial cortex of right femur; (3) DJD in both hips;
(4) prostatic

calcifications; and (5) atherosclerotic vascular disease. R. at 125. In
October 1989, the

appellant\'s service representative informed the RO that the appellant
wished \"to include

service connection for both of \[his\] hips to \[sic\] his claim for
service connection due to

\[DJD\].\" R. at 123. A VA orthopedic examination report from Dr. Merle
McAlevy, also

dated in October 1989, revealed the following impressions:

1\) Post Traumatic Osteo Arthritis (R) knee - advanced.

2\) Osteo Arthritis (L) knee and both hips - Note: cannot

determine for certain if caused by #1, but condition is

definitely aggravated by \[service-connected\] Arthritis (R) knee.

R. at 133 (emphasis added). In December 1989, the RO denied entitlement
to service

connection for the appellant\'s left knee and bilateral hip conditions
on the basis that these

disabilities were \"not proximately due to or the result of the
veteran\'s service-connected right

knee condition.\" R. at 141. The RO also denied an increased rating for
the right knee

condition. R. at 139.

Shortly after the RO issued its December 1989 rating decision, the
appellant, through

his representative, requested reconsideration of the decision, noting
that the October 1989

VA examination report indicated that his \"arthritis of the right knee
aggravated his hips and

left knee.\" R. at 143. He stated that if reconsideration was not
possible, then the RO

should accept the letter as a Notice of Disagreement (NOD). Id. He also
supplied the

following quotation from Merck Manual 1,196 (14th ed. 1982):

Biomechanical stresses may lead to chondrocyte damage and

proteolytic enzyme release resulting in articular cartilage

degeneration. Osteoarthritis develops when cartilage repair

does not keep pace with degeneration. Osteoarthritis may be

secondary to chronic trauma or underlying joint disease.

Prevalence is greater in men over age 45.

Id. His correspondence was accepted as an NOD, and the RO issued a
Statement of the

Case (SOC) on the issue of secondary service connection in February
1990. R. at 145-49.

Also in February 1990, the appellant submitted a VA Form 1-9, Appeal to
the BVA. He

stated that the appeal should be resolved in his favor for three
reasons: (1) his gait was

affected by his service-connected injury; (2) the VA examiner stated
that the appellant\'s

non-service-connected conditions were definitely aggravated by his
service-connected right

knee condition; and (3) the VA examiner stated that he could not say
that the arthritis of

the left knee and both hips was not caused by the service-connected
right knee condition.

R. at 151.

A February 1990 VA progress note revealed an impression of DJD in the
left knee

and the hips. R. at 163. A March 1990 VA radiologic consultation report
stated that x-rays

of both knees showed \"significant and severe degenerative changes
bilaterally with the right

greater than the left.\" R. at 167. The examiner also noted sclerosis of
the distal femoral

metaphysis of no great clinical significance. Id. An April 1990 VA
progress note stated that

a February 1990 x-ray had shown severe degenerative changes in both
knees, right greater

than left, and degenerative changes bilaterally in both hips. R. at 155.
In May 1990, the

RO confirmed and continued the 20% evaluation of the right knee. R. at
171. The RO

also continued to deny entitlement to service connection for left knee
and hip conditions on

the basis that \"no etiology for the arthritis \[of the left knee and
hips\] was offered.\" Id.

(Emphasis added.) In June 1990, the RO issued a Supplemental SOC (SSOC)
on the issue

of secondary service connection. R. at 174-76.

In August 1990, the appellant\'s representative submitted a statement to
the BVA

reiterating that Dr. McAlevy\'s October 1989 diagnosis had indicated
that the appellant\'s left

knee and hip conditions were \"definitely aggravated\" by the
service-connected right knee

condition. R. at 182. In September 1990, Dr. James F. Stanosheck, a
private physician,

wrote a letter to the BVA which stated:

This letter will certify that \[the appellant\] has been under my

medical care for a number \[of\] years. He has a degenerative

arthritic condition that involves both hips and both knees. He

originally injured his right knee while on active duty in the

\[s\]ervice, and he has a \[s\]ervice-connected disability for the

right knee\'s degenerative condition.

Due to favoring his right knee, the patient has subsequently

developed degenerative disease involving both hips and, now, the

left knee. This is to the point where he is completely disabled

with regard to gainful employment, and he must use a cane for

ambulation, particularly when climbing stairs. The patient

could be gainfully employed were it not for the degenerative

arthritic condition. It would seem that he has developed a

higher degree of disability resulting from his original injury than he

is presently being allotted for.

R. at 188 (emphasis added).

In June 1991, the BVA remanded to the RO the issues of entitlement to
service

connection for osteoarthritis of both hips and of the left knee, stating
as follows:

The veteran should be examined by a board of two VA

orthopedists (who have not previously evaluated him) in order

to offer an opinion as to the question of whether his left knee

and hip arthritis was caused by his service-connected right knee

disorder. The claims folder should be made available for

review.

R. at 193 (italics added; underscoring in original). In July 1991, a VA
official made the

following notation on a VA Form 21-2507, Request for Physical
Examination:

The veteran should be examined by a board of two VA

orthop\[edists\] in order to offer an opinion as to whether

arthritis of the hips \[and\] left knee is directly due to or

proximately the result of the \[service-connected\] right knee

condition.

R. at 207.

An August 1991 VA radiology report contained impressions of severe
arthritis of the

right knee and arthritic changes in both hips, but stated that \"\[t\]he
left knee show\[ed\] no

significant abnormality.\" R. at 196-97. That same month, the appellant
was examined by

Dr. Thull, a VA orthopedist. Dr. Thull\'s impression was: \"Old
ligamentous injury (R) knee

w/ significant DJD of medial compartment (R) knee and significant DJD
bilat\[eral\] hips.\"

R. at 208. In September 1991, a VA rating specialist made the following
notation:

Return the \[VA Form\] 2507 for completion. The

question . . . concerning the etiology of the arthritis in the hips

and left knee was not answered.

We asked that the veteran be examined and his records

be reviewed by two orthop\[edists\] but apparently only one

looked at him.

R. at 200 (emphasis added).

In December 1991, the appellant was examined by Dr. Bryan D. Bredthauer,
a

private orthopedic surgeon. Dr. Bredthauer\'s impression was as follows:

My clinical impression is that this gentleman suffers from

post-traumatic \[DJD\] of his right knee secondary to his old

ligamentous injury. He has mild changes of \[DJD\] present in

his left knee which cannot be ascribed to that injury. . . . I

suspect that a great deal of his left knee pain is referred pain

from his arthritic hip. His bilateral \[DJD\] of the hips is most

likely due to a mild case of slipped capital femoral epiphysis as

an adolescent as evidenced by his radiographs. . . . I am

unaware of any study indicating that \[DJD\] of a knee could be

the etiology of ipsilateral \[DJD\] of the hip. The essentially

symmetrical degenerative changes found in his hips would argue

against his left hip disease being attributable to the right knee.

R. at 203-04 (emphasis added).

In February 1992, due to the fact that Dr. Thull had not answered the
question posed

on the VA Form 2507, Request for Physical Examination, the form was
returned to him,

and a VA rating specialist made the following notation:

Return the \[VA Form\] 2507 for completion. The

question asked . . . was not answered by the VA orthop\[edist\]

(\[i\]t was answered by the fee\[-\]basis orthop\[edist\]). The VA

orthop\[edist\] must give his opinion on the question of etiology

of the left knee and bilateral hip condition.

Make the folder available for review by the orthop\[edist\].

R. at 211 (emphasis added). In March 1992, Dr. Thull apparently provided
the following

impressions (see R. at 222): (1) DJD, right knee, secondary to previous
injury; (2) DJD left

knee, \"ideopathic \[sic\]\" (defined in Dorland\'s Medical Dictionary
815 (27th ed. 1988)

as \"of the nature of an idiopathy \[a morbid state of spontaneous
origin; one neither

sympathetic nor traumatic\]; self-originated; of unknown causation\");
(3) DJD, hips,

\"probably\" secondary to slipped capital femoral epiphysis or coxa vara
as a juvenile. R. at

211\. That same month, the RO issued a confirmed rating decision denying
entitlement to

service connection for arthritis of the left knee and both hips on the
basis that both

orthopedists opined that such conditions were \"not due to the arthritis
in the right knee.\"

R. at 213. The RO issued an SSOC in April 1992. R. at 216-19.

In July 1992, the appellant\'s representative filed a VA Form 1-646,
Statement of

Accredited Representation in Appealed Case, expressing the appellant\'s
concern that the

RO had not correctly applied the doctrine of reasonable doubt. He
argued, in essence, that

the RO merely relied on the opinions of the two orthopedists and did not
consider the

opinions of Dr. McAlevy and Dr. Stanosheck, and that, when these two
opinions are added

to the others, the medical opinions are split as to the relationship
between the right knee

condition and the conditions of the left knee and hips. R. at 221-23. In
September 1992,

the appellant\'s representative wrote a letter to the BVA pointing out
that the December

1991 examination was performed by a fee-basis physician, contrary to the
BVA\'s remand

instruction which required the examination to be conducted by a board of
two VA

orthopedists. The representative also requested that the issue of an
increased evaluation

for arthritis of the right knee be referred to the RO for adjudication.
R. at 225.

II\. APPELLATE BACKGROUND: BVA AND RELEVANT COURT DECISIONS

In December 1991, the Court issued its decision in Tobin v. Derwinski, 2
Vet.App. 34

(1991). In Tobin, the veteran had appealed a BVA decision which had
denied entitlement

to service connection for arthritis of the left knee, secondary to a
service-connected cavus

deformity of the left foot, and which specifically found that the
evidence submitted since its

prior decision had failed to present a new factual basis for allowing
service connection. The

Court held that: (1) the evidence submitted by the veteran was new and
material, and thus

his claim should have been reopened; (2) the BVA\'s finding that the
service-connected

disability did not cause the left knee disability was based upon the
BVA\'s own impermissible

medical opinion; and (3) upon remand, the BVA must consider not only the
etiological

relationship between the two disabilities, but also whether the
service-connected left foot

disability aggravated the left knee disability. Id. at 38-39. With
respect to the last of these

holdings, the Court stated as follows:

It may be that appellant\'s initial arthritis in both his left

and right knees is not service-connected and that it is only the

increase in the amount of arthritis in appellant\'s left knee which

is secondary to his service-connected left-foot disorder and,

therefore, service connected. . . . 38 C.F.R. § 3.310(a) (1991)

states:

Disability which is proximately due to or the

result of a service-connected disease or injury

shall be service connected. When service

connection is thus established for a secondary

condition, the secondary condition shall be

considered a part of the original condition.

Appellant has presented statements from at least four

physicians to the effect that his left-knee condition is related to

his service-connected left-foot condition. . . . Even if appellant\'s

original arthritis was not caused by appellant\'s left-foot disorder,

the doctors\' statements support a finding of aggravation of

arthritis in the left knee. That aggravation constitutes an

increase in the disability. Under \[38 C.F.R. §\] 3.310(a) such an

increase in \"\[d\]isability proximately due to or the result of a

service-connected disease or injury shall be service connected.\"

Tobin, 2 Vet.App. at 39 (emphasis added except for the final use of the
word \"increase\").

In November 1992, the BVA in the instant case denied entitlement to
service

connection on a secondary basis for osteoarthritis of the left knee and
both hips. The

BVA\'s analysis, which did not address the Court\'s holding in Tobin,
supra, consisted of the

following:

The medical evidence of record clearly demonstrates no

etiological relationship between the veteran\'s service-connected

right knee arthritis and the subsequent onset of left knee and

bilateral hip arthritis. In fact, this evidence indicates that the

veteran\'s hip arthritis was a direct result of the mild case of

slipped capital femoral epiphysis suffered as an adolescent.

This was confirmed by x-ray findings. Moreover, both

examiners stated that they could not attribute the veteran\'s left

knee arthritis to his service-connected right knee disability.

Therefore, the \[BVA\] concludes that \[the\] preponderance of the

evidence favors the \[conclusion\] that the veteran\'s left knee and

bilateral hip arthritis is not proximately due to or the result of the

veteran\'s service-connected right knee disability.

R. at 8 (emphasis added).

In February 1993, the Court issued its decision in Leopoldo v. Brown, 4
Vet.App. 216

(1993). In Leopoldo, the veteran had appealed a BVA decision denying
entitlement to

service connection for a low back disability, secondary to a
service-connected right knee

disability. As to the question of a secondary relationship between the
two disabilities, the

Court, stated as follows:

The provisions of \[38 U.S.C. §\] 1110 must be read in the

context of the whole statutory scheme. See Sutherland Stat.

Const. § 46.05 (5th Ed). \"\[E\]ach part or section \[of a statute\]

should be construed in connection with every other part or

section so as to produce a harmonious whole.\" Talley v.

Derwinski, 2 Vet.App. 282, 286 (1992) . . . . In the absence of

any statutory definition in chapter 11 or in the title-wide

definition section 101 of Title 38, U.S. Code, the Court draws

pertinent guidance from the statutory definition in 38 U.S.C.\[\]

§ 1701(1) . . . , which defines \"disability\" as follows: \"The term

\'disability\' means a disease, injury, or other physical or mental

defect.\" The Court adopts this definition for purposes of

construing section 1110. This affords the same meaning to the

term \"disability\" for purposes of determining eligibility for

disability compensation for service-connected disabilities under

chapter 11 as applies for purposes of determining eligibility for

health care for such disabilities under chapter 17.

Under this construction, section 1110 provides for

disability compensation only for a present \"disease, injury, or

other physical or mental defect\" resulting from \"personal injury

suffered or disease contracted in line of duty,\" or for in-service

aggravation of a pre-existing disease or injury, but not for

aggravation of a non-service-connected condition by a service-

connected condition.

Leopoldo, 4 Vet.App. at 219 (emphasis added). The Court remanded for
other reasons, but

stated that the veteran was free \"to offer additional evidence as to
whether his service-

connected \[right knee\] injury caused, rather than merely aggravated,
his present back

condition.\" Id.

The appellant in the instant case filed a Notice of Appeal in March
1993. On

November 3, 1994, the appeal was submitted to the full Court for
decision. On

November 9, 1994, the Court ordered that the parties each provide a
memorandum of law

addressing the following question:

Where a claimant\'s service-connected disability

aggravates, but is not the proximate cause of, a non-service-

connected disability, is the claimant entitled to service

connection for that increment in severity of the non-service-

connected disability attributable to the service-connected

disability?

In response to the Court\'s November 9, 1994, order, the appellant, the
Secretary, and the

Veterans of Foreign Wars (as amicus curiae in support of the appellant)
each filed separate

memoranda answering the Court\'s question in the affirmative.

III\. ANALYSIS

A. Issue Necessitating En Banc Review

The BVA found that the medical evidence in this case \"clearly
demonstrates no

etiological relationship between the veteran\'s service-connected right
knee arthritis and the

subsequent onset of left knee and bilateral hip arthritis.\" R. at 8
(emphasis added).

Dorland\'s Illustrated Medical Dictionary 587 (27th ed. 1988) defines
etiology as

\"the study or theory of the factors that cause disease and the method
of their introduction

to the host; the cause(s) or origin of a disease . . . .\" (Emphasis
added.) Thus, it appears that

the BVA was requiring a causal connection between the service-connected
disability and the

\"subsequent onset\" of another disease.

A review of the medical evidence of record demonstrates that Dr. McAlevy
opined

that the arthritis in the left knee and both hips was \"definitely
aggravated\" by the appellant\'s

service-connected right knee condition (R. at 133), and that there are
no medical opinions

to the contrary. See R. at 188, 203-04, 213. (Note: Unless otherwise
indicated, the Court

will use the terms \"aggravation\" and \"aggravated\" as general terms
referring to any increase

in disability. This is to be distinguished from the more specific form
of the term

\"aggravation\" as defined in 38 U.S.C. § 1153, infra at part III.A.1.,
and 38 C.F.R. § 3.306(a)

(1994), which authorize compensation for an increase in disability
resulting from aggravation

during service of an injury or disease which existed before service.)
The BVA did not

address Dr. McAlevy\'s opinion in terms of the interpretation set forth
in Tobin, 2 Vet.App.

at 39, requiring that aggravation of a non-service-connected disability
by a service-connected

disability is, itself, entitled to service connection. See 38 U.S.C. §
7104(d)(1); Gabrielson v.

Brown, 7 Vet.App. 36, 39 (1994) (citing Gilbert v. Derwinski, 1 Vet.App.
49, 53 (1990), and

holding that the Board, in its statement of reasons or bases, must
discuss all material

evidence beneficial to the appellant). If the interpretation set forth
in Tobin prevails, such

discussion was necessary. If the interpretation set forth in Leopoldo, 4
Vet.App. at 219,

prevails, the Court would first be faced with the question whether Tobin
is nevertheless

applicable to this appeal in view of the doctrines announced in Karnas
v. Derwinski,

1 Vet.App. 308, 313 (1991) (where the law changes after a claim has been
filed or reopened

but before the administrative or judicial process has been concluded,
the version most

favorable will apply unless Congress provided otherwise or permitted the
Secretary to

provide otherwise and the Secretary did so), and Bethea v. Derwinski, 2
Vet.App. 252, 254

\(1992\) (a panel or single judge may not render a decision which
conflicts materially with a

previous panel or en banc opinion).

In order to determine which interpretation of the law should prevail, en
banc review

is required. See U.S. Vet. App. R. 35(c) (en banc review is necessary in
order to secure or

maintain uniformity of the Court\'s decisions); Bethea, 2 Vet.App. at
254 (only the en banc

Court may overturn a panel decision). Thus, the question necessitating
en banc review in

this case is that question (quoted in its entirety, supra) posed by the
Court in its

November 9, 1994, order. For the reasons set forth below, the Court
holds that the Tobin

interpretation of the law prevails. See Gardner v. Brown, \_\_ U.S.
\_\_, \_\_, 115 S.Ct. 552, 555

\(1994\) (citing King v. St. Vincent\'s Hospital, 502 U.S. 215, 220-21,
n. 9 (1991)) (\"interpretive

doubt is to be resolved in the veteran\'s favor\").

Section 1110 of title 38, U.S. Code (found in chapter 11 of that title,
which deals with

compensation for service-connected disability or death), provides that
compensation will be

paid for \"disability resulting from personal injury suffered or disease
contracted in line of

duty, or for aggravation of a preexisting injury suffered or disease
contracted in line of duty,\"

to any veteran who was \"discharged or released under conditions other
than dishonorable.\"

(Emphasis added.) See 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (1994).
Section 3.310(a) of title

38, Code of Federal Regulations, which applies to secondary service
connection for a

disability and which derives from § 1110, provides:

Disability which is proximately due to or the result of a service-

connected disease or injury shall be service connected. When

service connection is thus established for a secondary condition,

the secondary condition shall be considered a part of the

original condition.

(Emphasis added.) As the Court in Leopoldo correctly recognized,
entitlement to service

connection for aggravation of a non-service-connected condition by a
service-connected

condition rests upon the meaning of \"disability\" in 38 U.S.C. § 1110.
Service connection

under 38 C.F.R. § 3.310 (1994) is also controlled by the same meaning of
\"disability\" which

is applicable to § 1110.

Before discussing the two possible meanings of \"disability\" under §
1110, infra at

III.A.1. and II.A.2., a third alternative has been suggested by a
dissenting judge. Simply put,

that dissenter\'s view is that compensation may be awarded under § 1110
only where

disability has been incurred in or aggravated by service, and thus
neither a second condition

attributable to a service-connected condition nor the increase in
severity of a second

condition attributable to a service-connected condition is itself
entitled to service connection.

The simple response is that such proposition flies in the face of the
statutory language of

§ 1110 (\"disability resulting from . . .\") which awards compensation
based on disability caused

by a disease or injury incurred in or aggravated by service rather than
limiting compensation

only to disability actually present in service, i.e., as advanced by the
dissent, disability

contracted in line of duty.

1\. Interpretation I: Service-Connected Condition Must Cause Another
Condition

In Leopoldo, 4 Vet.App. at 219, the Court, pursuant to the analysis
quoted in part II,

supra, interpreted § 1110\'s use of the word \"disability\" to exclude
the possibility that service

connection could be granted and disability compensation could be awarded
for aggravation

of a non-service-connected condition by a service-connected condition,
but instead limited

service connection and the payment of disability compensation to
situations where a present

disease, injury, or other physical or mental defect resulted from a
previous injury or disease

which is service connected\--that is, where the service-connected
condition caused the other

condition. In so doing, the Court in Leopoldo adopted and relied upon
the definition of

\"disability\" found at 38 U.S.C. § 1701(1) (disease, injury, or other
physical or mental defect).

2\. Interpretation II: Service-Connected Condition Must

Cause or Aggravate Another Condition

A different interpretation of the word \"disability,\" one that would
also permit service

connection for aggravation by a service-connected condition of another
condition, can also

be supported.

Section 1701 expressly states that the definitions in that section are
provided \"\[f\]or

the purposes of\" chapter 17 of title 38, U.S. Code. On the other hand,
as correctly

acknowledged in Leopoldo, Congress did not include a definition of
disability among either

the title-wide definitions in 38 U.S.C. § 101 or the chapter 11
definitions in 38 U.S.C.

§ 1101. This is true despite the fact that §§ 101 and 1101 were
reenacted simultaneously

with § 1701 in the Act of September 2, 1958, Pub. L. No. 85-857, §§ 101,
301, 601, 72 Stat.

1105, 1106, 1118, 1141 (1958). See also Veterans\' Benefits Act of 1957,
Pub. L. No. 85-56,

§§ 101, 301, 501, 71 Stat. 83, 88, 94, 110 (1957) (same provisions prior
to codification in title

38 of U.S. Code). Because Congress specifically limited the application
of the § 1701(1)

definition of \"disability,\" it is reasonable to infer that Congress
did not intend that definition

to control the meaning of \"disability\" in other parts of the statute.
See U.A. 198 Health &

Welfare, Education and Pension Funds v. Rester Refrigeration Service,
Inc., 612 F. Supp. 1033,

1037 (M.D. La. 1985), aff\'d, 790 F.2d 423 (5th Cir. 1986), cert.
denied, 485 U.S. 904 (1988)

(application of a definition found in one part of a statute to a
different part of the statute,

when Congress has specifically limited the definition to the one part,
is not sound statutory

construction).

Rather, as argued by the Secretary in his memorandum in response to the

November 9, 1994, order of the Court, Congress, in defining
\"disability,\" only in and for

purposes of chapter 17, most likely intended the definition to apply
only to that chapter.

Secretary\'s Memorandum (Mem.) at 8-9. Chapter 17 of title 38, U.S.
Code, establishes

standards under which a person may be eligible for VA health care and
services for a

particular \"disability,\" i.e., for the purposes of obtaining treatment
for a particular disease,

injury, or defect. See, e.g., 38 U.S.C. §§ 1710, 1712. Accordingly, the
definition of \"disability\"

in § 1701(1) (disease, injury, or other physical or mental defect) is
consistent with the

general context and purposes of chapter 17.

The absence of a single generally applicable definition in 38 U.S.C. §
101, which

would control the interpretation of that term in other parts of title
38, suggests that the term

\"disability\" may reasonably be interpreted as having different
meanings in different parts of

title 38. See Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S.
427, 433 (1932) (where

the subject matter to which words refer is not the same in the several
places where they are

used, or the conditions are different, the meaning may well vary to meet
the purposes of the

law). Pursuant to 38 U.S.C. § 1155, the level of compensation payable
under chapter 11 is

determined according to \"the average impairments of earning capacity
resulting from

\[specific\] injuries\" or \"combination of injuries.\" See 38 C.F.R. §
4.1 (1994) (level of

compensation paid under chapter 11 is determined according to \"the
average impairment

in earning capacity resulting from \[all types of\] diseases and
injuries \[encountered as a result

of or incident to military service\] and their residual conditions\").
Thus, in view of the

statutory purpose to compensate veterans based upon degree of impairment
of earning

capacity, the direction in § 1110 to pay compensation \"\[f\]or
disability\" resulting from injury

or disease may reasonably be construed as a direction to pay
compensation for impairment

of earning capacity resulting from such injury or disease. Cf. 38 U.S.C.
§ 1153 (authorizing

compensation for \"an increase in disability\" resulting from
aggravation during service of an

injury or disease which existed before service).

Moreover, in Hunt v. Derwinski, 1 Vet.App. 292 (1991), the Court was
faced with

interpreting 38 U.S.C. § 353 (redesignated without change as § 1153 by
the Department of

Veterans Affairs Codification Act, Pub. L. No. 102-83, § 5(a), 105 Stat.
378, 406 (1991)

(found at 38 U.S.C. § 101 note) \[hereinafter § 1153\]), which provides:

A preexisting injury or disease will be considered to have been

aggravated by active military, naval, or air service, where there

is an increase in disability during such service, unless there is a

specific finding that the increase in disability is due to the

natural progress of the disease.

See 38 C.F.R. § 3.306(a). Specifically, in interpreting the term
\"disability\" in § 1153, the

Court stated:

The term, \"disability\", as contemplated by the VA regulations,

means \"impairment in earning capacity resulting from . . . \[all

types of\] diseases or injuries \[encountered as a result of or

incident to military service\] and their residual conditions. . . .\"

38 C.F.R. § 4.1 (1990). . . .

Such a definition of \"disability\" follows the overall

statutory and regulatory purpose of the veterans compensation

law. This purpose is reflected in the ratings system, which rates

different mental and physical maladies based upon diminished

earning capacity. . . . Hence, although \"disability\" is not defined

by \[§ 1153\] for compensation purposes, the regulatory definition

adopted \[in 38 C.F.R. § 4.1\] is a reasonable one.

Hunt, 1 Vet.App. at 296-97 (emphasis added). Because both §§ 1110 and
1153 are

contained in chapter 11 of title 38, U.S. Code, the Hunt decision lends
support to the

proposition that the term \"disability\" as used in chapter 11, and
specifically in § 1110, should

be construed to refer to impairment of earning capacity due to disease,
injury, or defect,

rather than to the disease, injury, or defect itself. See United Sav.
Ass\'n of Texas v. Timbers

of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) (\"\[a\] provision
that may seem ambiguous

in isolation is often clarified by the remainder of the statutory scheme
. . . because only one

of the permissible meanings produces a substantive effect that is
compatible with the rest

of the law\"). Under this interpretation, the result announced in Tobin,
quoted in Part II,

supra, should govern.

3\. Resolution of Conflicting Interpretations

The Supreme Court\'s recent decision in Gardner, supra, decided after
the issuance

of both Tobin and Leopoldo, provides the Court with critical guidance as
to which

interpretation should prevail. In Gardner, \_\_ U.S. at \_\_, 115 S.Ct.
at 555, the Supreme

Court stated that \"interpretive doubt is to be resolved in the
veteran\'s favor.\" Under this

language, resolving doubt between interpretations I and II, supra,
requires that such doubt

be resolved in favor of interpretation II, that which is more favorable
to the veteran. For

this reason, and for the reasons outlined in part III.A.2., the Court
holds that the term

\"disability\" as used in § 1110 refers to impairment of earning
capacity, and that such

definition mandates that any additional impairment of earning capacity
resulting from an

already service-connected condition, regardless of whether or not the
additional impairment

is itself a separate disease or injury caused by the service-connected
condition, shall be

compensated. As stated by the Secretary in his memorandum in response to
the Court\'s

November 9, 1994, order:

\[T\]o the extent \[that\] such additional disability is literally a

result of \"personal injury suffered or disease contracted in line

of duty,\" under 38 U.S.C. § 1110, service connection should be

established. In such a case, the additional \"disability\" results

from the original service-connected condition.

Mem. at 13-14. Thus, pursuant to § 1110 and § 3.310(a), when 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. Cf.

38 C.F.R. § 3.322 (1994) (in compensating for aggravation of a
preservice disability by active

service, it \"is necessary to deduct from the present evaluation the
degree, if ascertainable,

of the disability existing at the time of entrance into active service,
in terms of the rating

schedule . . .\").

In considering the proposition that the term \"disability\" in chapter
11 means

something different from that term\'s definition in chapter 17, the
Court has considered

whether this will produce an undesirable result in terms of VA
health-care eligibility under

chapter 17. We have concluded that such undesirable result will not
occur because disability

for purposes of eligibility for health care continues under this
decision to be defined as a

disease, injury, or other physical or mental defect regardless of
whether there is an

impairment of earning capacity. In addition, 38 C.F.R. § 3.310 makes
service connection

for an increase in disability part of the original service-connected
condition, and there is no

question that health care under chapter 17 would be available to the
veteran for that

increase in disability as part of the original service-connected
condition.

As stated above, the BVA relied exclusively upon a rule which required
an etiological

relationship between the appellant\'s service-connected right knee
arthritis and the

subsequent onset of arthritis in his left knee and hips. See R. at 8.
Because the Court has

determined that the interpretation announced in Tobin, 2 Vet.App. at 39,
is the correct

standard to be applied, the matter must be remanded to the BVA to
determine whether the

appellant\'s right knee arthritis aggravated his left knee and hip
arthritis, and, if so, what

level of disability is attributable to such aggravation.

B. Other Issues

1\. Etiological Relationship Between Conditions

Each decision of the BVA must contain \"a written statement of the
Board\'s findings

and conclusions, and the reasons or bases for those findings and
conclusions, on all material

issues of fact and law presented on the record.\" 38 U.S.C. § 7104(d);
see Quiamco v. Brown,

6 Vet.App. 304, 308 (1994); Wilson v. Brown, 5 Vet.App. 103, 107 (1993);
Gilbert, 1 Vet.App.

at 56-57. In Gilbert, 1 Vet.App. at 57, the Court held that in order to
facilitate judicial

review, \"the Board must identify those findings it deems crucial to its
decision and account

for the evidence which it finds to be persuasive or unpersuasive.\"
Specifically, in Gabrielson,

7 Vet.App. at 40, the Court stated that in each decision, the BVA must
\"analyze the

credibility and probative value of all material evidence submitted by
and on behalf of a

claimant in support of the claim and . . . provide a statement of its
reasons or bases for

rejecting any such evidence.\" See also Vecina v. Brown, 6 Vet.App. 519,
522-23 (1994);

Quiamco, 6 Vet.App. at 308-09; Gilbert, 1 Vet.App. at 59.

The BVA found that the medical evidence in this case \"clearly
demonstrates\" no

etiological relationship between the appellant\'s service-connected
arthritis of the right knee

and the arthritis of the left knee and both hips. R. at 8 (emphasis
added). However, of the

four medical opinions which addressed the etiological relationship
between the right and left

knee disabilities (the same opinions noted above), one found no
etiological relationship

(Bredthauer), one found an etiological relationship (Stanosheck), and
two could not

determine etiology (McAlevy and Thull). Further, of the same four
medical opinions, when

they addressed the etiological relationship between the right knee and
hip disabilities, two

found no etiological relationship (Bredthauer and Thull), one found an
etiological

relationship (Stanosheck), and one could not determine etiology
(McAlevy). In view of its

failure to address Dr. Stanosheck\'s medical opinion and to explain its
basis for rejecting that

opinion, the BVA failed to comply with the requirements of Gilbert,
supra, and Gabrielson,

supra.

The dissent argues that the BVA already decided the issue of
aggravation, that there

is a plausible basis for the BVA\'s decision on that issue, and that
there is, therefore, no

basis for a remand. However, it is a big stretch of the English language
to construe the

phrase \"no etiological relationship between the veteran\'s
service-connected right knee

arthritis and the subsequent onset of left knee and bilateral hip
arthritis\" as encompassing

aggravation, especially considering the use of the word \"onset.\"
Further, even assuming that

the BVA found that the appellant\'s service-connected right knee
condition did not aggravate

his other arthritic conditions, only one doctor (McAlevy) specifically
addressed aggravation;

he concluded that the non-service-connected arthritic conditions were
\"definitely aggravated\"

by the service-connected right knee condition, thus rendering the BVA\'s
assumed finding

of no aggravation without an adequate statement of reasons or bases
explaining either the

finding or the rejection of Dr. McAlevy\'s opinion. See Gabrielson and
Gilbert, both supra.

Finally, even assuming, as the dissent suggests, that both Drs.
Bredthauer and Thull

determined by implication that the service-connected right knee
condition did not aggravate

the other arthritic conditions, the Board nevertheless again failed to
provide an adequate

statement of reasons or bases for why it accepted these opinions and why
it not only rejected

the opinions of Dr. McAlevy, but also the opinion of Dr. Stanosheck,
who, under the

dissent\'s attenuated interpretation that \"etiology\" somehow subsumes
\"aggravation,\" would

be understood as having expressed the medical opinion that the
service-connected right knee

condition aggravated the other arthritic conditions.

The only basis for determining that such a reasons-or-bases deficiency
would not be

prejudicial to the appellant here (see 38 U.S.C. § 7261(b) (Court must
take account of the

rule of prejudicial error) would be if there was \"overwhelming\"
evidence in support of the

result \"reached by the Board.\" See Soyini v. Derwinski, 1 Vet.App.
540, 546 (1991) (\"reasons

or bases requirement . . . in 38 U.S.C. § 7104(d)(1) and more fully
discussed in Gilbert, \[1

Vet.App\] at 56-57, is one requiring strict adherence . . . \[but not\]
unquestioning, blind

adherence in the face of overwhelming evidence in support of the result
in a particular

case\"). It would be incomprehensible for the Court to conclude on this
record that the

evidence against the claimant (one VA and one private physician\'s
opinion) was

\"overwhelming\" in the face of the evidence in support of the claimant
(one VA and one

private physician\'s opinion). Thus, even under the dissent\'s view of
this case, a remand

would still be in order.

2\. Unemployability

In his September 1990 letter to the BVA, Dr. Stanosheck opined that the
appellant

is \"completely disabled with regard to gainful employment\" due to a
combination of his

arthritic conditions. R. at 188. Thus, in the event that the BVA, upon
remand, concludes

that the appellant is entitled to service connection for any additional
disability resulting from

his service-connected right knee condition, it must determine whether
the appellant is

entitled to a total disability rating based on individual
unemployability. See 38 C.F.R. § 4.16

(total disability rating may be assigned when the veteran is unable to
secure or follow a

substantially gainful occupation as a result of service-connected
disabilities).

IV\. CONCLUSION

Upon consideration of the record, the filings of the parties, and the
above analysis,

the Court VACATES the November 19, 1992, decision of the BVA and REMANDS
the

matter for further proceedings consistent with this opinion. Upon
remand, the appellant is

free to submit additional evidence and argument, see Quarles v.
Derwinski, 3 Vet.App. 129,

140-41 (1992), and the BVA is free to obtain another medical
examination, see Green v.

Derwinski, 1 Vet.App. 121, 123-24 (1991).

FARLEY, Judge, with whom NEBEKER, Chief Judge, joins, dissenting: Had
the

issue been properly presented in this appeal, I would have agreed with
the majority\'s

reaffirmation of Tobin v. Derwinski, 2 Vet.App. 34 (1991). With the
clarity of 20/20

hindsight, I now see two problems with Leopoldo v. Brown, 4 Vet.App. 216
(1993).

First, it was error to apply a definition explicitly lodged in 38 U.S.C.
§ 1700 \"\[f\]or

purposes of this chapter\" to all chapters of title 38. The stated
reason, i.e., that the term

\"disability\" would have the same meaning for purposes of both chapters
11 and 17, is a self-

fulfilling prophecy, not a legal justification. The Court interposed its
own judgment without

even paying lip service to the Secretary\'s interpretive regulations.
See Blanchard v.

Derwinski, 3 Vet.App. 300, 303-05 (1992) (Farley, J., concurring).

Second, I agree with the majority and the parties that when a
non-service-connected

disability is increased because of a service-connected disability, that
increase is itself entitled

to service connection. If the issue is presented squarely in some future
case, an unlikely

event in view of the Secretary\'s express statement of acquiescence in
Tobin here, the Court

may well have to overrule Leopoldo someday. Today, however, is not that
day.

The BVA, in its \"reasons and bases for findings and conclusions,\" took

explicit note of Dr. McAlevy\'s 1989 conclusion that the appellant\'s
left knee and hip

\"conditions were definitely aggravated by his service-connected right
knee.\" R. at 7.

Nevertheless, the BVA then found \"no etiological relationship between
the veteran\'s service-

connected right knee arthritis and the subsequent onset of left knee and
bilateral hip

arthritis.\" R. at 8. In that same paragraph, the BVA concluded \"that
\[the\] preponderance

of the evidence favors the consclusion \[sic\] that the veteran\'s left
knee and bilateral hip

arthritis is not proximately due to or the result of the veteran\'s
service-connected right knee

disability.\" Id.

In its rush to reach the Tobin/Leopoldo issue, the majority latches onto
the word

\"onset\" but ignores both the Board\'s specific cognizance of the
appellant\'s claim of

aggravation and its comprehensive conclusion of no causation. Then,
apparently finding

something in a definition of \"etiology\" that escapes me, the majority
states: \"Thus, it appears

that the BVA was requiring a causal connection between the service
connected disability

and the \'subsequent onset\' of another disease.\" Ante at \_\_\_, slip
op. at 10 (emphasis in

original). That, however, is not how it \"appears\" to me.

The BVA\'s use of the present tense demonstrates that the BVA found no
causal

relationship between the appellant\'s service-connected condition (right
knee) and his current

non-service-connected arthritis of the left knee and hips. Since a
current disability can only

be the sum of the initial disability (\"onset\") and any incremental
changes, the Board\'s

definitive conclusion that the appellant\'s current left knee and hip
arthritis are \"not

proximately due to or the result of\" the service-connected right knee
disability necessarily

embraced any claim of aggravation.

I would not have reached the Tobin/Leopoldo issue because I would have
affirmed

the BVA decision. In my view, the opinions of Drs. Bredthauer and Thull
provide a

plausible basis for the Board\'s findings and conclusions and its
\"reasons or bases\" satisfy the

requirements of 38 U.S.C. § 7104(d)(1). Even if one were inclined toward
the majority\'s

view that the BVA\'s \"reasons or bases\" concerning causation were
inadequate, a remand for

that specific reason hardly constitutes a license to slay dragons which
do not presently exist

and may never exist in this matter. The Court today is rendering an
impermissible advisory

opinion on the Tobin/Leopoldo issue because it does not arise in the
context of a concrete

case or controversy; the issue simply is not ripe for resolution. For
this reason, I am

compelled to dissent.

HOLDAWAY, Judge, dissenting: I entirely agree with Judge Farley in his
conclusion

that there is no case or controversy before the Court vis-a-vis the
\"issue\" of post-service

aggravation of a post-service injury. Hence the attempt to \"reach\" for
a nonexistent \"issue\"

to resolve the conflict between the Tobin case and the Leopoldo case
should be saved for

another day when, and if, the issue is presented to the Court. That may
never be, in light

of the Secretary\'s concession in this case adopting the Tobin result.
Presumably the

Secretary\'s position in this litigation will be made known to those
responsible for the

administrative adjudications below. That being said, I am constrained to
say that in my

opinion neither the Leopoldo analysis nor the wholly new analysis, which
is entirely based

on the assumption that either the Tobin result or the Leopoldo result
must be adopted, is

correct. I say this with some degree of diffidence as the author of the
opinion in Leopoldo

(to which Judges Kramer and Steinberg concurred without exception).
Since my two

colleagues are persuaded by a new and different analysis, I presume it
is permissible for me

to have second thoughts as well.

First, some comments about those two cases. In Tobin the \"issue\" was
neither raised

nor argued before this Court, nor, interestingly enough, had it been
raised at the RO level

or before the BVA. Despite the fact that the \"issue\" had not been
raised at the RO, the

BVA, or this Court, the Court, sua sponte, really almost as an
afterthought and with virtually

no analysis, assumed that post-service aggravation of a
non-service-connected condition by

a service-connected condition was compensable. In Leopoldo, as in Tobin,
the \"issue\"

likewise was not raised before the RO or the BVA, nor raised on appeal
to this Court, but

was picked up sua sponte by the Court. There was at least an analysis in
Leopoldo, however

flawed some (including myself) now think it to be, that at least
explained the decision.

Moreover, this analysis had the virtue of reconciling the definition of
disability as it applies

to compensation with the definition as it applies to treatment.
Parenthetically, I must say

I fear that the disparate definitions adopted by Judge Kramer will,
despite his optimism to

the contrary, create confusion and result in some unintended
consequences. Whether a

better analysis or not, Leopoldo was in conflict with Tobin, a previous
precedential opinion

of this Court. The \"whys and wherefores\" of how this happened, while
interesting, are not

germane to the case before us now except to the unfortunate extent that
it has developed

a mindset that this is an \"either/or\" situation. Either Leopoldo is
right or Tobin is right.

After further research and reflection, I now think they are both wrong.

Veterans benefits are a matter of positive law. If the law does not
provide a benefit

in a given fact situation there is no benefit. It is that simple.
Compensation for disability

is payable only in circumstances specifically provided for by statute or
by regulation

consonant with statute. See OPM v. Richmond, 496 U.S. 414 (1990).
Neither the Secretary

nor this Court can create a remedy out of whole cloth that is not
provided for in the statute.

Certainly a remedy cannot be fashioned that is contrary to statute. The
relevant statutory

language is simple and direct and provides as follows: \"For disability
resulting from personal

injury suffered or disease contracted in line of duty, or for
aggravation of a preexisting injury

suffered or disease contracted in line of duty, in the active military .
. . .\" 38 U.S.C. § 1110

(emphasis added). The statute is silent, absolutely silent, about
post-service aggravation

(whatever the cause) of a post-service injury. In fact, the plain
language of the statute, by

linking injury and aggravation to periods when the claimant was in the
line of duty,

precludes compensation for such injury. Insofar as it speaks to
aggravation at all, the statute

clearly and unambiguously limits compensation to in-service aggravation
of preexisting

injuries.

Congress could have easily provided for the post-service aggravation
situation now

before us. Perhaps it should have. That is a matter for legislative
policy makers, not

judicial usurpation by this Court. We can only assume that if Congress
had intended to

provide compensation for post-service injuries or aggravation it would
have done so by

specific legislation as it did for service aggravation of preservice
injuries. Any attempt to

provide a remedy not contemplated by the statute is judicial law making,
pure and simple.

Moreover, it flies in the face of the express statutory language that
the injury, or in the case

of preexisting injuries only, its aggravation, must be incurred during
active service while \"in

the line of duty.\" In this case even if the appellant\'s post-service
injury was aggravated by

his in-service injury it is clear beyond any doubt that this aggravation
postdated active

service by many years and, a fortiori, could not have possibly been
incurred \"in line of duty.\"

Only a statutory provision similar to that which is applicable to line
of duty aggravation of

preservice injuries can provide a remedy for an injury or its
aggravation that is not incurred

in line of duty. At such time as a case or controversy properly presents
this issue to the

Court, I will urge that an en banc Court overrule both Tobin and
Leopoldo and decide the

case by simply reading, as the Gardner case cited by the majority
enjoins us to do, the plain

language of the statute.