Citation Nr: 1307528 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-33 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a left knee disability. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active service from September 16, 1982 to December 8, 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the Regional Office (RO) that denied the Veteran's request to reopen the previously denied claim of entitlement to service connection for internal derangement, flexion contracture, left knee. In August 2012, the Board reopened and remanded the claim for service connection for a left knee disability for additional development. That development has been completed. The Board notes that the Veteran was previously represented in this appeal by an accredited Veterans Service Organization, but has recently submitted correspondence indicating that he has revoked this representative's authority to act. As such, the Veteran will proceed unrepresented. See 38 C.F.R. § 14.631(f)(1) [a power of attorney may be revoked at any time]. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Clear and unmistakable evidence demonstrates that a left knee disability pre-existed active duty service and that the left knee disability was not aggravated by service. 2. The most probative evidence indicates the Veteran's current left knee disability is not related to service. CONCLUSION OF LAW The requirements for establishing entitlement to service connection for a left knee disability have not been met. 38 U.S.C.A. §§ 1101, 1111, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in letters sent in October 2008 and December 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). The letters also provided notice of the type of evidence necessary to establish a disability rating or effective date for the claimed disability under consideration, pursuant to the recent holding in Dingess v. Nicholson, 19 Vet App 473 (2006). The claim was readjudicated in the January 2013 supplemental statement of the case. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran's service treatment records, Social Security Administration records, and VA and private treatment records have been obtained. In addition, he has been provided with the appropriate VA examination in connection with the claim. He has not indicated there are any additional records that VA should seek to obtain on his behalf. Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required. Service Connection The Veteran contends that he has a left knee disability that was incurred in or aggravated by service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). 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 (West 2002). In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder pre-existed service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. 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). If the government fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Id. A pre-existing disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). A temporary or intermittent flare-up of a preexisting disease does not constitute aggravation. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Board has reviewed all the evidence in the appellant's claims file and electronic Virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran's service treatment records show that during an Applicant Medical Prescreening in July 1982, the Veteran denied having a painful or "trick" knee or loss of movement in any joint. At his entrance examination one week later, the Veteran again reported that he had no problem joints. The entrance examiner found no disability related to the Veteran's lower extremities. On September 28, 1982, reported as being during his first week of basic training, the Veteran sought treatment for a left knee problem which began three to four days prior to treatment. He reported no history of trauma, but when seen later that day, he did report slipping when walking up some stairs. The clinician noted that he had a hot/effused left knee. Pain medication was prescribed the next day. The assessment was deferred. He was given an ace wrap, told to ice it, and placed on crutches for 4 days. He was released to duty on October 1, 1982. A physical therapy note from October 22, 1982 indicated he was doing well but having slight difficulty with long running. There were no significant objective findings. Self paced running for 2 weeks was recommended and physical therapy was discontinued. On October 26, 1982 he reported his knee pain was worse and effusion was noted. Reevaluation was requested. He was referred to the orthopedic clinic to rule out a meniscus tear. The clinician noted that it probably existed prior to service. On an October 28, 1982 consultation, it was noted the Veteran had left knee pain since entrance on active duty and that he had no injury on active duty. A traumatic effusion at age 14 was noted, with subsequent chronic effusion episodes 2 to 3 times with "locking" which self resolved. The assessment was probable medial meniscus tear that existed prior to service In November 1982, the Veteran underwent Entrance Physical Standards Board Proceedings, and it was determined that the Veteran had a pre-service football injury that was evaluated by a physician, but not an orthopedist. The Veteran is reported to have stated that he persisted in having knee symptoms from the time of his football injury until his entry into service that were severe enough that he was unable to participate in vigorous sports following his knee injury. The examiner determined that the Veteran had a knee injury that was sustained prior to entering into service, which caused significant enough symptoms to cause him to be unable to perform activity as a civilian. The examiner went on to state that the Veteran's pain and symptoms had increased since entering into service and are incompatible with effective training. He was thereafter processed for separation from service. After service, a June 1984 private treatment record noted a medical history of left knee injury 5 or 6 years earlier. The Veteran denied ever seeing an orthopedist following the injury. In December 1985, the Veteran again reported a medical history of a left knee injury in 1979, for which he did not seek orthopedic treatment. In June 1999 the Veteran complained of left knee pain. On examination, the Veteran's knees flexed to 150 degrees bilaterally. A May 2000 VA treatment report noted left knee osteoarthritis. Subsequent VA treatment records show complaints of chronic left knee pain, left knee arthralgia, degenerative joint disease, and arthritis. In November 2002 the Veteran reported a history of a left knee injury in 1982 during service. VA treatment records in September 2009, April 2010 and August 2010, also noted a history of a left knee injury in service. In March 2012, the Veteran was fitted with a left knee brace. In July 2008, the Veteran's brother submitted a statement noting that the Veteran injured his left knee playing football in high school but that the injury healed. He went on to state that he did not recall the Veteran having any problems with his knee from that point until after he entered active service. He stated that the Veteran re-injured his left knee "when he was pushed off a cattle truck and fell on his left knee." The Veteran underwent a VA examination in September 2012. The Veteran reported an injury to the left knee in high school while playing sports, but related that the onset of pain and swelling in the left knee began during basic training in 1982. The Veteran reported that he was treated for the knee during active duty and eventually discharged for the knee disability. Reportedly, the left knee symptoms gradually subsided after discharge from service, until 1992 when he started feeling pain again. He had been using a knee brace for 10 years and a cane for support. The examiner noted that following discharge from service there were no complaints of left knee pain until 1992, and treatment after service was initially documented in 2002. The examiner noted that x-rays of the left knee in February 2000, revealed moderate tricompartimental osteoarthritis and an old osteochondral fracture involving the medial facet patella. On examination, the examiner found evidence of osteoarthritis and traumatic arthritis. Following an examination of the Veteran, the examiner diagnosed moderate tricompartimental osteoarthritis with an old osteochondral fracture involving the medial facet patella. The examiner opined that the Veteran had a left knee disability that clearly existed prior to service and was not aggravated by it. The examiner explained that the service treatment records documented findings consistent with a flare-up of the pre-existing left knee condition during basis training. In this regard, the examiner noted that by the Veteran's own account, his left knee symptoms gradually improved after service discharge and 10 years passed before the left knee became symptomatic. Additionally, there was a 20 year gap between service and the first documented treatment for the left knee. To the extent that the evidence showed left knee osteoarthritis, the examiner indicated that osteoarthritis was the result of natural age related progression of the disease over a period of time and as such, the current left knee condition was due to natural progression of the pre-existing left knee disability and was not caused or permanently aggravated during the Veteran's period of service. The examiner concluded that none of the Veteran's current left knee conditions were related to any event in service. Upon review of the record, the Board notes that on an Applicant Medical Prescreening in July 1982, the Veteran reported no knee problems. On entrance examination one week later, the Veteran again reported that he had no problem joints, and the entrance examiner found no disability related to the Veteran's lower extremities. Thus, a left knee disability was not noted when the Veteran entered active duty, and the presumption of soundness applies. 38 U.S.C.A. §§ 1111 (West 2002); see also Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In this case, the most probative evidence of record clearly establishes the Veteran's left knee disability pre-existed his military service. Review of the record reveals that in September 1982, during his first week of basic training, the Veteran sought treatment for a left knee problem. The service treatment records show that initially the Veteran denied a history of left knee trauma. Thereafter, he reported that he slipped on the stairs, but denied any prior history. However, on orthopedic evaluation in October 1982, the Veteran reported a traumatic effusion at age 14. The assessment was probable medial meniscus tear that existed prior to service. In November 1982, the Veteran underwent Entrance Physical Standards Board Proceedings, and it was determined that the Veteran had a pre-service football injury, which had remained symptomatic until his entry into service. The symptoms were described as severe enough that he was unable to participate in vigorous sports following his pre-service knee injury. After service, 1984, 1985, and 1986 private treatment reports recorded a history of a left knee injury prior to service induction. Significantly, the VA examiner in September 2012 determined that the Veteran's left knee disability clearly pre-existed active duty. More recently, VA treatment reports after 2002 recorded a history from the Veteran of a left knee injury in 1982 during active duty with onset of symptoms in service. To the extent that the Veteran now claims he did not experience left knee symptoms prior to entering service, such statements are inconsistent with those made while seeking treatment during service. In that regard, as noted above, the Veteran reported on multiple occasions to multiple providers that he experienced left knee trauma prior to service. The Veteran is competent to report that he suffered an injury to his knee playing football prior to service as well as the symptoms he experienced as a result. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the contemporaneous statements reporting on his pre-service injury and symptoms experienced since that time until being seen in service, made to medical professionals for the purpose of obtaining treatment, to be of significantly greater probative value than any current statements denying pre-service left knee problems, made in the pursuit of VA compensation benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Similarly, the Board finds that the July 2008 statement from the Veteran's brother regarding in-service injury is inconsistent with other evidence of record. In this regard, the Veteran's brother stated that the Veteran injured his left knee playing football in high school and the injury resolved prior to service. He noted onset of the Veteran's knee symptoms after the Veteran re-injured his left knee when he was pushed off a cattle truck and fell on his left knee. The Board notes that this statement is inconsistent with information provided by the Veteran to treatment providers during service and after service. As such, the brother's statement that the Veteran injured his knee falling off a cattle truck in service is not considered credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed.Cir.2006) (Board can consider bias in lay evidence, conflicting statements, and significant time delay between the affiants' observations and the date on which the statements were written in weighing credibility). Based on the evidence as outlined above, the Board finds there is clear and unmistakable evidence that the Veteran's left knee disorder existed prior to service. In this regard, while the Veteran denied knee problems on entrance examination, he subsequently competently and credibly reported to military treatment providers that he had suffered a knee injury playing football in service, and experienced 2 to 3 periods of locking of the knee thereafter which resolved without treatment. He reported that the symptoms persisted and he was unable to participate in sports afterward. He was examined by service medical personnel and denied a history of trauma, other than slipping up some stairs. Physical examination noted effusion, 1 cm quadriceps atrophy, no laxity, negative Drawer's sign and pivot shift, but marked pain with McMurray's test. Thus, based on competent and credible information provided by the Veteran at the time of treatment in service, as well as physical examination findings at that time and the Veteran's denial of any significant injury other than slipping on stairs, service medical personnel determined that the Veteran suffered from a probable meniscal tear that existed prior to service. Moreover, following an examination of the Veteran, to include a discussion of his history and review of the claims file, the VA examiner also concluded that the Veteran's left knee disability clearly existed prior to service. There is no medical opinion to the contrary. Having determined that the left knee disorder existed prior to service, the Board must next address whether such disorder was aggravated by service. As noted previously, a pre-existing injury or disease will be considered to have been aggravated by active 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 C.F.R. § 3.306(a). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted with symptoms, worsened. Jensen v. Brown, 4 Vet. App. 304 (1993); Green v. Derwinski, 1 Vet. App. 320 (1991); Hunt v. Derwinski, 1 Vet. App. 292 (1991). The service treatment records documented treatment for the left knee within days of service induction, during his first week of basic training, and ongoing until his discharge approximately 21/2 months later. During the course of treatment the Veteran denied trauma to the left knee during service, although at one point he related slipping while walking up some stairs. In November 1982, the Veteran underwent Entrance Physical Standards Board Proceedings, and the examiner stated that the Veteran's pre-existing left knee symptoms had increased since entering into service and were incompatible with effective training. He was thereafter processed for separation from service. To the extent that the Veteran contends that his pre-existing left knee disability was permanently aggravated by service, the evidence shows that following discharge from active duty the earliest post-service medical records showing pertinent complaints of left knee pain are dated in 1999. Significantly, on VA examination in September 2012, the Veteran stated that his left knee gradually improved after discharge from active duty, until 1992 when he developed left knee pain. In this case, there is clear and unmistakable evidence establishing that the Veteran's left knee disability was not aggravated by service. In this regard, the most probative evidence of record clearly and unmistakably supports the conclusion that the Veteran's pre-existing left knee problems were not permanently aggravated by his military service. Specifically, the Board finds the opinions expressed in the September 2012 examination report to be highly probative. The opinions expressed were based on review of the claims file, in-service and post-service treatment records, and the Veteran's statements. Based on the foregoing, the examiner concluded that the Veteran's pre-existing left knee disability underwent a temporary flare-up during service, but the symptoms gradually improved after service discharge with 10 years passing before the left knee became symptomatic. Additionally, there was a 20 year gap between service and the first documented post-service treatment for the left knee. Moreover, the examiner indicated that the Veteran's current osteoarthritis was the result of natural age related progression of the disease over a period of time and as such, the current left knee condition was due to natural progression of the pre-existing left knee disability and was not caused or permanently aggravated during the Veteran's period of service. The examiner concluded that none of the Veteran's current left knee conditions were related to any event in service. The VA examiner's opinion was based on review of the Veteran's claims file, to include the service treatment records, and it included an examination of the Veteran. A complete and thorough rationale is provided for the opinion rendered. The examiner's conclusion is fully explained, is consistent with the competent and credible evidence of record, and is unequivocal in its finding that the Veteran's left knee disability was not aggravated by service. Prejean v. West, 13 Vet. App. 444 (2000). Thus, the only evidence that the Veteran's left knee disability was aggravated by service is the Veteran's own lay assertions. However, the Veteran has not shown that he has specialized training sufficient to render a medical opinion addressing the relationships between his current knee disability, his preexisting knee disability, and his military service. In this regard, the diagnosis and etiology of knee disorders requires medical testing and expertise to determine. See Jandreau, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current left knee disability is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). The Board finds the service treatment records and opinion of the VA examiner to be of significantly greater probative value than the Veteran's lay assertions. In summary, the most probative evidence of record clearly and unmistakably establishes that the Veteran's left knee disability pre-existed service and was not aggravated by service. Additionally, there is no evidence of arthritis shown within one year following discharge from service. Finally, the most probative opinion indicates that the Veteran's current left knee disabilities are not related service. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof."). Thus, the Board finds that the preponderance of the evidence is against the claim for service connection for a left knee disability, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left knee disability is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs