Citation Nr: 1131555 Decision Date: 08/26/11 Archive Date: 09/07/11 DOCKET NO. 02-15 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The appellant enlisted in the Army National Guard in July 1982 and was a member until August 1991. While a member of the Army National Guard, he had various periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA), including one initial period of ACDUTRA in the Army from September 27, 1982, to February 15, 1983, and one day of INACDUTRA on December 29, 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The appellant appealed that decision to BVA and the case was referred to the Board for appellate review. In a decision dated in June 2005, the Board denied the appellant's claim for service connection. The appellant appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), and in a decision dated in January 2008, the Court, in pertinent part, vacated the Board's decision and remanded the case to the Board for further proceedings consistent with the decision. In an August 2008 decision, the Board again denied the appellant's claim for service connection. The appellant appealed the decision to the Court. In a November 2009 decision, the Court affirmed the Board's August 2008 decision. The appellant then appealed the Court's decision to the United States Court of Appeals, Federal Circuit. In a June 2010 decision, the Federal Circuit noted that the issue on appeal was limited to entitlement to service connection for a left knee disorder. The Federal Circuit affirmed the Court's November 2009 decision in part, vacated in part, and remanded the case to the Court. In a November 2010 memorandum decision, the Court vacated the Board's August 2008 decision, with respect to the appellant's claim for service connection for a left knee disorder, and remanded the matter to the Board for further review. The appellant has submitted additional evidence to the Board, along with a written waiver of initial RO review of this evidence. See 38 C.F.R. § 20.1304 (2010). A hearing was held on November 1, 2004, in North Little Rock, Arkansas, before Kathleen K. Gallagher, a Veterans Law Judge who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who is rendering the determination in this case. A transcript of the hearing is in the claims file. The Veteran was also afforded a hearing before the Decision Review Officer (DRO) at the RO on April 30, 2003. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. The appellant had a left knee disorder that preexisted service. 3. While working at his civilian occupation as a truck driver on December 27, 1990, the appellant injured his cervical spine, lumbar spine, left knee, and left ankle in a motor vehicle accident. 4. The appellant was on INACDUTRA on December 29, 1990. 5. The appellant has not been shown to have a left knee disorder that was acquired during any period of ACDUTRA or INACDUTRA, and there was no permanent worsening of any underlying condition based on any occurrence or event during any period of ACDUTRA or INACDUTRA. CONCLUSION OF LAW The pre-existing left knee disorder was not aggravated during any period of ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 101, 106, 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303, 3.306 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the RO did provide the appellant with notice in March 2001, December 2001, and March 2002, prior to the initial decision on the claim in March 2002. The appellant was also provided a notification letter in November 2003. The timing requirement of the notice as set forth in Pelegrini has been met in connection with the claim and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. The RO informed the appellant in the notice letters about the information and evidence that is necessary to substantiate his claim for service connection. Specifically, the November 2003 letter indicated that the evidence must show that the appellant had an injury in military service or a disease that began in, or was made worse during military service, or that there was an event in service that caused injury or disease; that he has a current physical or mental disability; and, that there is a relationship between his current disability and an injury, disease, or event in military service. Additionally, the September 2002 statement of the case (SOC) and the June 2004 and October 2004 supplemental statement of the case (SOC) notified the appellant of the reasons for the denial of his application and, in so doing, informed him of the evidence that was needed to substantiate his claim. In addition, the RO notified the appellant in the notice letters about the information and evidence that VA will seek to provide. In particular, the November 2003 letter indicated that reasonable efforts would be made to help him obtain evidence necessary to support his claim, including that that VA was requesting all records held by Federal agencies, such as service medical records, military records, and VA medical records. The appellant was also informed that a medical examination would be provided or that a medical opinion would be obtained if it was determined that such evidence was necessary to make a decision on his claim. The RO also informed the appellant about the information and evidence that he was expected to provide. Specifically, the November 2003 letter notified the appellant that he must provide enough information about his records so that they could be requested from the agency or person that has them. The March 2001, March 2002, and November 2003 letters also requested that he complete and return the enclosed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, if there were any private medical records that he would like VA to obtain on his behalf. In addition, the November 2003 letter informed the appellant that it was his responsibility to ensure that VA receives all requested records that are not in the possession of a Federal department or agency In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, but he was not provided with notice of the type of evidence necessary to establish a disability rating or an effective date. Despite the inadequate notice provided to the appellant on these latter elements, the Board finds no prejudice to the appellant in proceeding with the issuance of a final decision. In that regard, as the Board concludes below that the appellant is not entitled to service connection, any question as to the appropriate disability rating or effective date to be assigned is rendered moot. In addition, the duty to assist the appellant has also been satisfied in this case. The appellant's service treatment records as well as all available VA and private treatment records are in the claims file and were reviewed by both the RO and the Board in connection with the appellant's claim. The Board does observe that the appellant has not been afforded a VA examination in connection with his claim for service connection for a left knee disorder. Under the law, an examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent lay or medical evidence of a current diagnosed disability or persistent or recurrent symptoms of disability; (2) establishes that the appellant suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service. 38 C.F.R. § 3.159(c)(4). In this case, a VA examination is unnecessary to decide the claim for service connection because such an examination would not provide any more pertinent information than is already associated with the claims file. As will be explained below, the appellant has not been shown to have had a disease, event, or injury pertaining to his left knee during active military duty. His service treatment records are negative for a left knee injury during active duty. The Board recognizes that the appellant and his spouse are competent and credible to give testimony as to what they witnessed and experienced. Indeed, the appellant's spouse is also competent to provide a medical opinion as to whether the appellant's left knee disorder was aggravated by active duty. However, the Board finds that the documentary evidence of record, consisting of the service treatment records and private treatment records, are more persuasive than the lay statements of record and do not demonstrate a permanent aggravation of the appellant's preexisting left knee disorder. Indeed, there is no evidence of any injury during the appellant's December 29, 1990 period of INACDUTRA. The contemporaneous records only noted that the appellant suffered an injury to his left knee in December 27, 1990, during an off-duty motor vehicle accident. In fact, following his period of INACDUTRA on December 29, 1990, the appellant's private physician assessed the left knee as normal. Because there is no event, injury, or disease in service to which a current disorder could be related, the Board finds that a VA examination is unnecessary. 38 C.F.R. § 3.159(c)(4)(i); cf. Duenas v. Principi, 18 Vet. App. 512, 517 (2004), citing Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (noting that a medical examination conducted in connection with claim development could not aid in substantiating a claim when the record does not already contain evidence of an inservice event, injury, or disease). LAW AND ANALYSIS Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. The term "veteran" is defined, in relevant part, as "a person who served in the active military, naval, or air service . . . ." 38 U.S.C.A. § 101(2); see also 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" is defined to include active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); see also 38 C.F.R. § 3.6(a). The term "active duty for training" includes, inter alia, certain full time duty in the Army National Guard. 38 U.S.C.A. § 101(22); see also 38 C.F.R. § 3.6(c)(3). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[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." 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). For the purposes of this case, periods of inactive duty for training (INACDUTRA) are not for consideration because service connection may be granted for disability resulting only from injuries incurred or aggravated during such periods, not disability resulting from diseases. 38 U.S.C.A. § 101(23), (24); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. §§ 101(24), 1131) (stating that the law "permits service connection for persons on inactive duty [training] only for injuries, not diseases, incurred or aggravated in line of duty"). Moreover, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active or inactive duty for training. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim" (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Therefore, the appellant is not entitled to a presumption of sound condition at entrance onto a period of active or inactive duty for training, or to a presumption of aggravation during such period where evidence shows an increase in severity of a preexisting disease during such a period, or to a presumption of service incurrence or aggravation for certain diseases, including psychoses, which manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service. In other words, the application of 38 C.F.R. §§ 3.307, 3.309 (presumption of service incurrence), 3.306 (presumption of aggravation), and 38 U.S.C.A. §§ 1111, 1131 (presumption of soundness) is not available in this appeal. Any individual who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA, and who is disabled from an injury incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA, shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be. VA will determine whether such individual was so authorized or required to perform such duty and whether the individual was disabled from injury so incurred. In making such determination, there shall be taken into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for or ceased to perform such duty; the method of travel employed; the itinerary; the method in which the travel was performed; and the immediate cause of disability. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of this subsection, the burden of proof shall be on the claimant. 38 U.S.C.A. § 106(d); 38 C.F.R. § 3.6(e). In accordance with 38 U.S.C.A. § 106, VA has the authority to determine whether the appellant was in active service, including INACDUTRA, at the time a claimed injury occurred. VA regulations governing requirements for establishing service for VA benefits purposes require military service department verification of the appellant's service. See Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); 38 C.F.R. § 3.203. "[O]nly official service department records can establish if and when an individual was serving on active duty, [ACDUTRA], or [INACDUTRA]." Cahall v. Brown, 7 Vet. App. 232, 237 (1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. The appellant testified at his April 2003 personal hearing at the RO that he felt pain in his left knee on December 29, 1990, when he was carrying his heavy duffle bags when ordered into duty. See RO Hearing Transcript p. 1. The appellant testified that he was seen in the Troop Medical Clinic on January 24, 1991, where he was given a profile based on neck, lower back, left knee, left ankle injury and left leg muscle spasms, and indicated that he was using a wheelchair at that time. See RO Hearing Transcript pp. 1-2. The appellant provided similar testimony at his November 2004 Travel Board hearing. He also stated that his National Guard duty on December 29, 1990, was inactive duty training. See Board Hearing Transcript p. 3. The appellant testified that he had been in an accident on December 27, 1990, and that he sustained elevated pain in the areas injured in the accident due to lifting and carrying military equipment such as duffle bags, chairs, food service equipment, radio equipment, and other equipment. He contended that his case warranted service connection because the pre-existing condition he had from the accident were aggravated and taken to another level. The appellant's representative clarified that the appellant was arguing that the left knee residuals were aggravated due to the events of December 29, 1990. See Board Hearing Transcript pp. 3-4 and p. 8-9. The evidence of record also includes written statements about the events of December 29, 1990. The appellant submitted a statement in January 2001 in which he claimed that while he was gathering his National Guard equipment in order to report on that day, he was in severe pain and, as a result, fell in the parking lot. He maintained that the heavy duffle bags affected his injured areas, left knee causing him to collapse. He noted that he subsequently had to carry those heavy bags into the Armory. A June 2001 statement from the appellant's spouse indicates that she is a registered nurse. She stated that she had notified her husband's captain on December 28, 1990, about the injuries he had suffered the prior day. She also indicated that she helped her husband to dress, that he would not allow her to carry his heavy bags, and that as they proceeded outdoors to the car the appellant fell with the heavy equipment. She said that his pain intensified again when they arrived at the Armory and he exited the car. A January 2002 statement from the appellant indicates that he wore his battle dress uniform with a neck brace and a leg brace over it. He said that he had to use one crutch too. The appellant further stated that he grabbed his bags, proceeded to the car, and fell down. He contended that he suffered in pain for several hours after arriving at the Armory and was subsequently sent home. Review of the appellant's service treatment records reveals that the appellant underwent an enlistment examination in July 1982 at which time he reported having undergone left knee surgery for torn cartilage when he was twelve years old. The July 1982 report from an orthopedic consultation indicates that there was a healed surgical scar over the lateral and anterior lateral aspect of the appellant's left knee. There was no synovial thickening or instability of the cruciate or collateral ligaments, but there was some irregularity of the articular margin of the left femoral condyle. Extension and flexion of the knee were normal. There was minimal crepitation on movement of the left knee. Radiographic examination revealed considerable spurring of the articular margin of the lateral femoral condyle of both the medial and lateral aspects as well as some irregularity of the articular surface of the lateral tibial plateau. There was also a slight irregularity of the lateral medical condyle. The orthopedist rendered a diagnosis of residuals of apparent lateral meniscectomy of the left knee with mild irregularity of the articular margins without atrophy or synovitis. There is no evidence that the appellant received any treatment at the National Guard on December 29, 1990, although reports from his primary care physician, dated December 28, 1990, indicate that radiographic examination of the ankle, knee, cervical spine, and lumbar spine were negative and that physical examination had resulted in clinical impression of left knee pain. A January 21, 1991, letter from the appellant's primary care physician to the National Guard states that the appellant had been diagnosed with left knee pain. The physician stated that the appellant was wearing a knee brace, taking physical therapy, and making intermittent office visits. The physician also advised that any movement of any kind caused pain to the appellant, advised against any kind of travel, and stated that prolonged sitting, standing, or any other type of activity could cause damage to the areas already injured. On January 24, 1991, the appellant was evaluated at the Troop Medical Clinic at which time he was noted to have been off work due to pain of the left knee. An April 24, 1991, letter from the appellant's orthopedic surgeon states that the appellant was suffering from the residuals of a cervical spine strain and that the left knee was normal. The surgeon further stated that the appellant's neck problem disqualified him from participating in active military duty. The appellant was subsequently found to not meet the medical fitness standards for retention due to a cervical spine strain. Review of the private medical evidence of record reveals additional records from the appellant's orthopedic surgeon. An April 1994 note includes diagnoses of anterior compartment impingement of the left knee with synovitis and plica and recurrent tear of the lateral meniscus. The surgical note indicates that, while the appellant had had a previous lateral meniscectomy, there was still meniscus present and a recurrent tear of the lateral meniscus such that the surgeon had to completely remove the offending meniscal material that was causing the inflammation of the posterior and anterior lateral compartment. A February 1997 report indicates that the appellant presented for treatment in November 1996, and that the doctor rendered diagnoses of cervical strain with straightening of the lumbar lordosis, sprain of the lumbar spine, and possible internal derangement of the left knee. The appellant subsequently reported that he had been involved in a minor car wreck in December 1996. The doctor stated that the appellant's symptoms began to improve in January 1997, and that, in February 1997 the cervical spine demonstrated a satisfactory range of motion (although the appellant complained of some pain at the base of the neck) and the lumbar spine was normal. In addition, there was some low-grade synovitis of the left knee with evidence of pain on motion. In a June 2001 report, the physician stated that the appellant had presented for an evaluation of the service connection claim at issue in this case. The physician reviewed the appellant's history and noted that he had been diagnosed with strain of the left knee after the December 27, 1990, motor vehicle accident, that the appellant had been on active duty in December 1990, and that he presented with current complaints of persistent knee pain. A radiographic examination revealed osteoarthritic changes of the left knee. Records from the beginning of 2002 indicate that the appellant had been diagnosed with cervical disc displacement, lumbar and lumbosacral disc degeneration, and internal derangement of the knee. Records received from the Army National Guard establish that the appellant's status on December 29, 1990, was INACDUTRA. The National Guard documents indicate that he was not on active duty at any time between July 11, 1990, and August 7, 1991, and that he had no credible service for retirement pay during that same period. Because the appellant contends that his left knee disorder was aggravated on the way to reporting for INACDUTRA on December 29, 1990, an issue in this case is the point at which the appellant entered into the status of INACDUTRA. It appears from the newspaper articles submitted by the appellant that his unit was supposed to report at the Armory by 0800 hours on December 29, 1990. It is clear from the evidence of record that the appellant was injured in a work-related accident on December 27, 1990. He claims to have aggravated those injuries while he was on INACDUTRA on December 29, 1990. Both the appellant and his spouse have described a fall that occurred before he entered his vehicle and began the trip to the Armory. While neither section 106(d) of the statute nor section 3.6(e) of the regulations include the words 'portal-to-portal', review of the legislative history of Public Law 881, 84th Congress indicates that the phrase was discussed. See, e.g., Servicemen's and Veterans' Survivors' Benefits Act: Hearings Before the Select Committee on Survivors Benefits, 84th Cong., 1st Sess. 56-57 (1955). Although sections 106(d) and 3.6(e) and the pertinent legislative history include the terms 'proceeding', 'en route', 'travel', and 'using transportation facilities of his own choosing', there is no conclusive evidence that the reservist had to be using some mode of transportation before s/he would come under the purview of the legislation. On the other hand, there is no definitive evidence that the coverage extended from the point in time at which the reservist opened the door of his/her home to leave for INACDUTRA to the point in time at which s/he opened the door of the home upon return from INADUTRA. Purely for the sake of argument and to afford the appellant the most liberal possible interpretation, the Board will, however, assume such literal portal-to-portal coverage in analyzing the appellant's issue of entitlement to service connection for a left knee disorder. In considering the evidence of record under the laws and regulation as set forth above, the Board concludes that the appellant is not entitled to service connection for a left knee disorder. At the outset, the Board notes that the appellant is not entitled to a presumption of sound condition at entrance onto a period of active or inactive duty for training or to a presumption of aggravation during such period where evidence shows an increase in severity of a preexisting disease during such a period. In this case, the appellant clearly had a preexisting left knee disorder. In this regard, his July 1982 enlistment examination indicated that he had had left knee surgery at age twelve. He was referred for an orthopedic consultation during which he was diagnosed with residuals of a lateral meniscectomy of the left knee with mild irregularity of the articular margins without atrophy or synovitis. Indeed, there has been no dispute that the appellant's left knee disorder preexisted his active service, and as such, was not incurred during ACDUTRA or INACDUTRA. This childhood condition is clearly documented in the record, and there has been no assertion or any indication that it occurred during any type of military duty. Accordingly, the appellant had a preexisting left knee disorder prior to his military service. As such, the Board's adjudication of this claim for service connection may proceed based on aggravation. In addition, the appellant admits that he suffered injuries to his left knee as a result of the December 27, 1990, motor vehicle accident. The medical evidence of record, including that relating to the appellant's associated Workers Compensation benefits, refers to the existence of these injuries after the December 27, 1990, accident. The Board finds such evidence sufficient to establish that the appellant's left knee condition was aggravated by this accident. The appellant states that he suffered aggravation of his left knee as a result of his December 29, 1990, day of INACDUTRA. He maintains that the aggravation occurred while on his way to report for INACDUTRA on December 29, 1990. The appellant's representative has stated that the appellant contends that service connection for a left knee disorder is warranted because it was aggravated due to the events of December 29, 1990. See Board Hearing Transcript pp. 3-4 and p. 8-9. However, the evidence of record does not show that the claimed disorder was aggravated during the December 29, 1990, period of INACDUTRA. The appellant has argued that he suffered aggravation of his pre-existing left knee disorder due to a fall in his driveway, the rigors of travel, and getting out of his car and into the Armory on December 29, 1990. The Board also notes that the appellant's descriptions of his actions on that day have included the wearing a leg brace and using a crutch as well as engaging in the moving and hauling of military equipment, such as duffle bags, chairs, food service equipment, radio equipment, and other equipment. Whenever any claim is filed alleging that the claimant is entitled to benefits by reason of 38 C.F.R. § 3.6(e), as in this case, the regulation states that the burden of proof shall be on the claimant. The appellant has not provided sufficient evidence that he suffered an injury or any aggravation of a pre-existing injury between the time he left his house on December 29, 1990, and the time he checked in at the Armory for his period of INACDUTRA on that day or during his travel back home that day. The appellant's service treatment records dated in January 1991, February 1991, and April 1991 indicate that he did seek treatment for his left knee. It was noted that he had been injured on a motor vehicle accident on December 27, 1990. However, there was no indication the injuries had chronically worsened or increased in severity on December 29, 1990. In fact, his service treatment records do not document any complaints, treatment, or diagnosis pertaining to his claimed disorder on December 29, 1990. The Board does acknowledge that the appellant and his spouse have described the aggravation of the claimed injuries as an increase in his pain level. Indeed, his wife submitted a statement dated in June 2001 indicating that she is a registered nurse and that she witnessed him fall on his way to INACDUTRA. She also indicated that his pain intensified as a result of the incident. In another statement, received in October 2008, the appellant's spouse noted that after review of the appellant's medical records, as a registered nurse, she knows for certain that the fall the appellant had while carrying his heavy duffle bags en route to military duty on December 29, 1990 aggravated his injured weight bearing joints to the extent that he was unable to perform his military duties on December 29, 1990. While at the Armory attempting to perform his military duties in excruciating pain on movement, the captain sent him home and was told to go to Troop Medical Clinic at Camp Robinson for medical evaluation. The appellant's spouse noted that she treated the appellant at home on December 29, 1990 and subsequently. She stated that in conclusion, the appellant suffered from a left knee disorder impacted by his military service on December 29, 1990. The Board notes that medical evidence is not limited to that which is provided by doctors. As provided by 38 C.F.R. § 3.159(a)(1), "competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." The United States Court of Appeals for Veterans Claims (Court) has held that a nurse practioner fits squarely into the requirement of section 3.159(a)(1) as a provider competent to provide diagnoses, statements, or opinions. Similarly, in this case, the appellant's wife appears to be a registered nurse, and thus, completed medical education and training and meets the requirement of section 3.159(a)(1) as one competent to provide diagnoses, statements, or opinions. Cox v. Nicholson, 20 Vet. App. 563, 568-70 (2007). The appellant's spouse has opined that the appellant's fall en route to military duty on December 29, 1990 aggravated his injured weight bearing joints. In addition, she noted that the appellant was in a lot of pain. Nevertheless, pain alone, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Moreover, even assuming that the appellant did have an increase in pain, the Board notes that aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service. An increase in the severity of a preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition, is required to establish service connection for a preexisting injury or disease on the basis of aggravation. There must be permanent advancement of the underlying pathology. Here, the medical evidence does not establish that the appellant's preexisting left knee disorder underwent a chronic worsening or permanent increase in severity. In fact, the appellant's treating orthopedist stated in April 1991 that an examination of the left knee was normal. Furthermore, the sick call slips dated in January 1991 only mentioned the appellant's off-duty motor vehicle accident and did not note any injuries during ACDUTRA or INACDUTRA. Although the appellant's spouse is competent and credible to report on what she witnessed and to state that the appellant's left knee disorder was aggravated by his fall, the documentary evidence, consisting of contemporaneous records, is more persuasive with respect to whether a left knee disorder was permanently aggravated. The Board is also cognizant of the appellant's own statements to the effect that he believes his preexisting left knee disorder was aggravated by his December 29, 1990 period of INACDUTRA. The Board notes that the appellant is competent to report his experience and symptoms in service, such as being injuring himself and experiencing pain. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered and competent lay evidence can be sufficient in and of itself. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the appellant is competent and credible to express that he experienced an injury and resulting pain when he was en route to report to his period of INACDUTRA. However, the Board finds that the documentary evidence is more persuasive than the appellant's statements that his preexisting left knee disorder was aggravated by his period of INACDUTRA on December 29, 1990. In fact, although the December 27, 1990 record shows that the appellant sustained an injury to the left knee as a result of an off-duty motor vehicle accident, the December 28, 1990 x-ray was normal. In addition, the appellant reported that he fell en route to INACDUTRA and, therefore, his left knee disorder was permanently aggravated. However, there are no records dated in December 29, 1990 and the medical evidence only attributes the appellant's knee pain to his off-duty motor vehicle evidence. Indeed, the sick call slips dated in January 1991 only noted that the appellant suffered an injury to the left knee during an off-duty motor vehicle accident; there was no mention of any injuries or problems during ACDUTRA or INACDUTRA. Furthermore, the appellant's treating orthopedist stated in April 1991 (merely 4 months after the alleged permanent aggravation during INACDUTRA) that an examination of the left knee was normal - weighing against the appellant's assertions. The Board finds that the appellant's statements are inconsistent with the documentary evidence of record including the contemporaneous evidence demonstrating that the appellant's left knee disorder was related to his off-duty motor vehicle accident. Contemporaneous evidence has greater probative value than history as reported by the veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). Therefore, the Board finds that the documentary evidence of record, including the service treatment records and private treatment records, is more persuasive than the appellant's statements as to whether his preexisting left knee disorder was permanently aggravated by active duty. Finally, the Board also acknowledges the June 2001 statement from the appellant's mother-in-law. She noted that the appellant was in a bad automobile accident in December 1990 and forced to go to war two days later which was the worst thing that could happen to him. She stated that he was in no shape to drive himself let alone make these painful aggravating trips. She noted that over the years, he has complained of left knee pain. While the Board appreciates her statement, the key issue in this case is whether the appellant's left knee disorder was permanently aggravated by his reported injury during his one day of INACDUTRA, not the pain that the appellant has experienced as a result of his left knee disorder. As explained above, the Board finds that the documentary evidence, consisting of the service treatment records and private treatment records, are the most persuasive with respect to this question than the appellant's mother-in-law's statement. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Based on the foregoing, the Board finds that the preponderance of the evidence is against the appellant's claim for service connection for a left knee disorder. Because the preponderance of the evidence is against the appellant's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left knee disorder is not warranted. ORDER Entitlement to service connection for a left knee disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs