Citation Nr: 1237803 Decision Date: 11/05/12 Archive Date: 11/09/12 DOCKET NO. 10-49 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for a right knee condition. REPRESENTATION Appellant represented by: Michael James Kelly, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The Veteran had active service from January 12, 1966 to February 3, 1966 in the U.S. Air Force. He was discharged due to a physical disability. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for a right knee condition (claimed as knee problems). In September 2012, the Veteran testified a Travel Board hearing, at the RO, before the undersigned Veterans Law Judge. FINDINGS OF FACT 1. The Veteran is presumed sound upon entry into active service and the evidence does not clearly and unmistakably show that his right knee disability, diagnosed as torn right medial meniscus, existed prior to active service. 2. The competent evidence of record is in equipoise as to whether the Veteran's torn medial meniscus of the right knee is related to his active service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, a torn medial meniscus of the right knee was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102 , 3.156(a), 3.159, 3.326(a). Given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice and assistance provided to the Veteran is unnecessary, since any deficiency of such would constitute harmless error. II. Factual Background Service treatment records (STRs) show that the Veteran underwent a pre-induction examination in November 1965, at which time he responded "yes" to having or having had a trick or locked knee and indicated he had "blood on knee". The examiner noted that the Veteran injured his right knee. On clinical evaluation in November 1965, his lower extremities were evaluated as normal, and he was found qualified for duty. In December 1965, it was noted that no additional defects were discovered and he was found fit for military service. Thereafter, however, on January 22, 1966, the Veteran was seen for pain and stiffness in the both knees. A few days later, he was seen for complaints of leg and knee pains, and it was noted that he had previous sprains of his right leg and a history of the right knee giving away. On January 25, 1966, he was seen in the orthopedic clinic and reported a history of injuring both knees while playing football prior to service. He reported that his knees (right greater than left) had started to hurt during a drill the week prior. X-rays showed a torn right medial meniscus and osteochondritis dissecans, right medial femoral condyle. He was examined for medical board processing, and the final diagnosis was tear of medial meniscus, right, not in the line of duty, EPTS (existed prior to service). The disposition was that his medical condition existed prior to entry into service and had not been aggravated by service, beyond the normal progression of the disease. A Medical Board Report dated January 31, 1966, showed that he was to be discharged due to a tear of the right medial meniscus which was found to have existed prior to service. On his discharge examination in January 1966, the Veteran again responded "yes" to having or having had a trick or locked knee, and on physical examination of the lower extremities, he was noted to have a tear of the medial meniscus, right. Treatment records from Boston Medical Center showed that in July 2009 the Veteran underwent a total right knee arthroplasty. In August 2009, his past medical history included osteochondritis dessicans, both knees, diagnosed in 1965, and his surgical history included a right knee arthroplasty in 2001. In December 2009, the Veteran was found to be doing well status post knee replacement, although he still had residual stiffness. His medical problem list at that time included degenerative joint disease, both knees, and osteochondritis dissecans. In September 2012, the Veteran testified that he injured his knee in basic training doing physical training, and that since then he had severe pain and inflammation and degenerative arthritis in the right knee. He testified he injured his knees playing football, approximately two years before his entry into service, but also indicated he had never had any surgery or treatment for his knees before service, and that his right knee was fairly normal by the time he entered service. III. Analysis The Veteran essentially contends his current right knee disability had an onset during his active service. He acknowledges he injured his knees playing football prior to service, but claims his right knee was normal by the time he entered service. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Court has held that the presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). The record reflects that the Veteran has a current right knee disability. Private treatment records show he underwent right knee arthroplasty in 2001, and a total right knee replacement in July 2009. In addition, treatment records show his diagnoses include degenerative joint disease and osteochondritis dissecans. With regard to service, the Board notes that every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). In order to rebut the presumption of sound condition under 38 U.S.C. § 1111, the government 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. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement for rebutting the presumption of soundness, the government must rebut a statutory presumption of aggravation by showing, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). Because the Veteran's pre-induction examination report in November 1965, and December 1965 update, did not reveal any right knee disability or torn medial meniscus, he is entitled to the presumption of soundness under 38 U.S.C.A. §§ 1111. VA must then consider whether the presumption of soundness is rebutted by clear and unmistakable evidence that the Veteran had a right knee disability that preexisted service. In that regard, the Board notes that although the Veteran reported he injured his knees playing football prior to service, and a right knee injury was noted on his pre-induction physical examination, in addition, on his pre-induction physical examination his lower extremities were evaluated as clinically normal and he was found fit for duty. Subsequent STRs show that he had an onset of knee symptoms in service which was followed by a diagnosis of torn medial meniscus of the right knee. Thus, the Board concludes that the presumption of soundness has not been rebutted by clear and unmistakable evidence that the Veteran had a right knee disability and/or torn medial meniscus that preexisted service. Thus, the Board must now consider whether the Veteran has a right knee disability that was incurred in service. In that regard, STRs clearly show that the Veteran had an onset of right knee symptoms (pain, etc.) that were linked to a the diagnosis of torn medial meniscus which was made during active service. The Board acknowledges that the Veteran has no burden to prove his case to within a degree of medical certainty. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. Thus, after having carefully reviewed the competent evidence record, the Board finds that the evidence is in relative equipoise as to whether the Veteran's torn medial meniscus of the right knee was incurred in service. Accordingly, in resolving reasonable doubt in the Veteran's favor, the Board will exercise its discretion to find that the evidence is in relative equipoise, and will conclude that service connection for a torn medial meniscus of the right is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. ORDER Service connection for a torn medial meniscus of the right knee is granted. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs