Citation Nr: 1302947 Decision Date: 01/28/13 Archive Date: 02/05/13 DOCKET NO. 09-43 276 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from February 1968 to February 1972. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In April 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. FINDINGS OF FACT 1. In December 1972, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for a left knee disability. Although notified of this decision that same month, the Veteran did not timely file an appeal. 2. Evidence received since the RO's December 1972 rating decision is new and material, and raises a reasonable possibility of substantiating the Veteran's claim for service connection for a left knee disability. 3. The Veteran sustained a left knee injury before entering onto active duty in February 1968. 4. In March 1967, examination of the left knee and x-rays were essentially negative. 5. History of a left knee sprain was noted on the February 1968 entrance examination for active duty but clinical evaluation of the lower extremities was normal. 6. Clinical evaluation of the lower extremities was normal on examination in service in May 1968, and there were no complaints or findings pertaining to the left knee. 7. In July 1970, a torn left lateral meniscus was diagnosed, and internal derangement of the left knee was diagnosed in September 1970; the Veteran underwent a left lateral meniscectomy in service in November 1970. 8. Current osteoarthritis of the left knee, with lateral partial knee replacement in November 2004, is the result of the internal derangement of the left knee with left lateral meniscectomy shown in service. CONCLUSIONS OF LAW 1. New and material evidence has been submitted since the RO's December 1972 rating decision, and the Veteran's claim of entitlement to service connection for left knee disability is reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 2. The presumption of sound condition applies in this case because no left knee disorder was noted on the February 1968 entrance examination. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012); 38 C.F.R. § 3.304 (2012). 3. The presumption of sound condition cannot be rebutted in this case because, although there is clear and unmistakable evidence that a left knee disorder preexisted entry to active service, there is no clear and unmistakable evidence that the preexisting left knee disorder was not aggravated during active service. 38 U.S.C.A. § 1111 (West 2002 & Supp. 2012); 38 C.F.R. § 3.304 (2012); Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed.Cir. 2004). 4. Current osteoarthritis of the left knee, with lateral partial knee replacement, was incurred in active service, and the criteria for service connection for osteoarthritis of the left knee, with lateral partial knee replacement, have been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The Board is taking action favorable to the Veteran by reopening and granting his claim seeking service connection for a left knee disability. Given the favorable outcome, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). In order to reopen a claim which has been previously denied and which is final, the claimant must present new and material evidence. 38 U.S.C.A. § 5108. If the claim is reopened, it will be reviewed on a de novo basis. 38 U.S.C.A. §§ 5108, 7105; Evans v. Brown, 9 Vet. App. 273 (1996); Manio v. Derwinski, 1 Vet. App. 140 (1991). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In December 1972, the RO issued a rating decision which denied the Veteran's original claim seeking service connection for a left knee disability. Notice of the RO's December 1972 rating decision was sent to the Veteran that same month. He did not file a timely notice of disagreement with this decision, and it is final. See 38 C.F.R. § 20.201 (2012). In December 1972, the RO denied the claim on the basis that the Veteran's left knee disability was incurred prior to his military service and that no aggravation of the preexisting left knee disability was shown during service. In December 2007, the Veteran filed to reopen his claim of entitlement to service connection for left knee disability. The RO's December 1972 rating decision is the last final disallowance on the issue of service connection for left knee disability. The Board must review all of the evidence submitted since the last final action to determine whether the Veteran's claim for service connection should be reopened. Evans v. Brown, 9 Vet. App. 273, 282-83 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). In support of his claim to reopen, the Veteran testified and submitted statements indicating that he did not have a chronic left knee disability prior to his entry into military service. While he acknowledged the left knee injury in March 1967, he reported subsequently playing for and competing on both his high school's baseball and track teams without incident. He further indicated that he had no problems with his left knee during basic training, and that his left knee was normal on both his February 1968 entrance examination, as well as his May 1968 examination for submarine training. The Veteran testified that he had no problems with his left knee until it was injured during a survival, evasion, resistance, and escape (SERE) training exercise prior to being sent to Vietnam (which was in August 1970). Specifically, he reported that his left knee was injured when his entire body was crammed into and left in a small wooden box for roughly 30 minutes during this training. The Board finds that the Veteran's testimony constitutes new and material evidence. New and material evidence having been submitted, the Veteran's claim seeking service connection for a left knee disability is reopened; and the Board shall now consider the claim on the merits. 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. 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). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran served on active duty in the Navy from February 1968 to February 1972. His report of separation, Form DD 214, noted that he served in Vietnam from August 1970 to December 1970. A February 2, 1968, letter from the Veteran's private physician noted that he had treated the Veteran for a left knee injury he had incurred while wrestling in March 1967. Physical and x-ray examination of the left knee performed at that time was normal, but the report noted that the Veteran possibly had a tear of the cartilage and advised him to consider surgery if it became symptomatic. The report then noted that the Veteran had not been seen since. A February 21, 1968, enlistment examination noted that the Veteran's lower extremities were normal. A medical history report, completed at that time, noted the Veteran's history of having a preservice left knee sprain. A May 1968 physical examination for submarine training listed the Veteran's lower extremities as normal. A July 11, 1968, treatment report from the Naval Training Center in San Diego, California, noted the Veteran's complaints of a sore left knee. A July 30, 1970, treatment report noted that the Veteran's left knee had locked at a 90 degree angle. The Veteran was hospitalized that same day with a chief complaint of inability to extend his left knee. The hospitalization report noted that he had first injured his left knee in 1966, and that he has had intermittent locking, swelling and clicking since then. Physical examination revealed a tender left knee along the lateral joint line, without effusion. The Veteran remained hospitalized until August 11, 1970. An August 17, 1970, treatment report noted that physical examination of the Veteran's left knee was 100 percent within normal limits, and that surgery was not indicated absent some changes on physical examination. An August 31, 1970, treatment report noted that the Veteran's left knee had locked again. Physical examination of the left knee revealed some tenderness over the lateral joint space. The report concluded with a diagnosis of history compatible with internal derangement of the left knee. A hospitalization report, dated October 16, 1970, noted that the Veteran was admitted for surgery due to internal derangement of the left knee. The report noted that he underwent an a left lateral meniscectomy on November 9, 1970. Following rehabilitation, the Veteran was discharged on March 5, 1971, with a diagnosis of recurrent injury, left knee. The Veteran's January 1972 separation examination noted the operative scar on his left leg. In November 1972, the Veteran filed his original claim seeking service connection for a left knee disability. A May 2003 private treatment report noted the Veteran's complaints of left knee pain. X-ray examination of the left knee revealed osteoarthritic changes with joint space loss; osteophytes at the patellofemoral compartment, as well as the medial lateral joint compartment; some sclerosis in the left knee, much worse than the right knee; knee joint effusion; small foci of chondrocalcinosis in the medial compartment. An October 2004 private treatment report noted the Veteran's complaints of left knee pain since his 1970 lateral meniscus removal. The report noted that he had received prior treatment with cortisone injections. A November 2004 private operative report noted that the Veteran underwent a lateral partial knee replacement of the left knee. The report listed preoperative and postoperative diagnoses of osteoarthritis of the left knee. In support of his claim, the Veteran submitted a medical article which indicated that when the lateral meniscus is removed, there is a 45 to 50 percent decrease in contact area in the knee, and that this results in a 200 to 300 percent increase in contact pressure which can eventually damage the cartilage on the ends of the bones and can lead to degenerative arthritis. The report also noted that in the 1970s, it was common to remove a damaged meniscus entirely, and that this frequently led to early degenerative arthritis in many patients. As noted above, the Veteran's February 1968 enlistment examination report reflected that his lower extremities were normal. When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. The burden then shifts to VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (emphasis added). The history of left knee sprain noted on the medical history portion of the Veteran's February 1968 enlistment examination, along with the findings noted on the Veteran's private physician's February 1968 letter and subsequent inservice treatment records, clearly and unmistakably shows that a left knee disability existed prior to entry onto active duty. VAOPGCPREC 3-2003. However, the evidence of record does not establish by clear and unmistakable evidence that the Veteran's left knee disability was not aggravated by service. Although the Veteran's private physician noted treatment for a left knee disability prior to service, this treatment ceased in March 1967, nearly a year prior to the Veteran's entry into military service. Subsequently, the Veteran testified that he participated on both his high school baseball and track teams without any problems. Despite these activities in sports, his February 1968 entrance examination report also reflected that his lower extremities were normal (despite the examiner's having been made aware of the Veteran's prior left knee history). Therafter, the Veteran was able to complete basic training without incident, and a May 1968 physical examination for submarine training also showed that the Veteran's lower extremities were normal. It was not until a SARE training exercise in which his body was crammed into a small wooden box that the Veteran experienced any problems with his left knee. This is confirmed by treatment of his left knee in June 1970, which is the first treatment shown for a left knee disability, and is more than three years after his documented preservice treatment in March 1967. Thereafter, multiple locking episodes of the left knee are shown in a short period of time, which necessitated surgery. Given this evidence, the Board concludes that it cannot be said that there is clear and unmistakable evidence in this case that the Veteran's left knee disorder was not aggravated during service. Because the second requirement to rebut the presumption of sound condition is not met, the presumption of sound condition stands, and the case becomes one of service incurrence. 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). Therefore, the Board must determine whether the Veteran's current left knee disorder was incurred in active service. To determine this, there must be a current left knee disability which is the result of personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Recent medical evidence shows that there is a current left knee disability. Specifically, the May 2003 private treatment report noted an x-ray examination of the left knee revealed osteoarthritic changes with joint space loss; osteophytes at the patellofemoral compartment, as well as the medial lateral joint compartment; some sclerosis in the left knee, much worse than the right knee; knee joint effusion; and small foci of chondrocalcinosis in the medial compartment. In addition, the November 2004 private operative report noted that the Veteran underwent a lateral partial knee replacement of the left knee. The report listed preoperative and postoperative diagnoses of osteoarthritis of the left knee. With regard to disease of or injury to the knee in service, the hospitalization report, dated October 16, 1970, noted that the Veteran was admitted for surgery due to internal derangement of the left knee. The report noted that he underwent an a left lateral meniscectomy on November 9, 1970. Therefore, the Veteran did have a left knee disorder in service. Thus, the remaining question in the case is whether the current osteoarthritis of the left knee, which led to a lateral partial knee replacement of the left knee in November 2004, was the result of the internal derangement of the left knee with left lateral meniscectomy shown in service. In support of this aspect of his claim, the Veteran submitted a medical article which indicated that when the lateral meniscus is removed, there is a 45 to 50 percent decrease in contact area in the knee, and that this results in a 200 to 300 percent increase in contact pressure which can eventually damage the cartilage on the ends of the bones and can lead to degenerative arthritis. The report also noted that in the 1970s, it was common to remove a damaged meniscus entirely, and that this frequently led to early degenerative arthritis in many patients. The Board notes that this evidence forms an adequate basis on which the Board may conclude that the current left knee disability is likely the result of the left knee disorder shown in active service. Accordingly, service connection is warranted for current osteoarthritis of the left knee, with lateral partial knee replacement. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, 3.304. ORDER New and material evidence having been submitted to reopen the claim for service connection for a left knee disability, the claim is reopened. Service connection for osteoarthritis of the left knee, with lateral partial knee replacement, is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs