Citation Nr: 1309372 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 07-15 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to April 1970. This matter comes to the Board of Veterans' Appeals from a May 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously remanded by the Board in September 2012 for additional development. The Veteran testified at a RO hearing in December 2007 and a Board hearing before the undersigned in June 2011. FINDINGS OF FACT 1. There is clear and unmistakable evidence that the Veteran's right knee disability existed prior to entry into active duty service. 2. There is clear and unmistakable evidence that there was no increase in the underlying severity of the Veteran's preexisting right knee disability during his period of active duty service. 3. A separate chronic right knee disability was not manifested during the Veteran's period of active duty service. CONCLUSION OF LAW Right knee disability was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in February 2006 and August 2007 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefit sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in February 2006, which was prior to the May 2006 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claim for service connection. The February 2006 and August 2007 letters also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and VA medical records are associated with the file. Additionally, the Veteran was afforded a VA examination in September 1978, March 2007, and November 2012. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Factual Background At the time of November 1967 entrance examination, the Veteran checked the appropriate box to report a history of trick or locked knee. On examination, the Veteran's lower extremities were reported to be clinically normal. Subsequent service treatment records (STRs) document complaints of knee pain and recurrent dislocation of the right knee beginning three months after entry into service and continuing throughout his service. A December 1969 X-ray of the Veteran's right knee showed no abnormalities. In March 1970, the Veteran was cleared for discharged with a diagnosis of recurrent dislocation of the right patella. On February 1970 separation examination, recurrent dislocation of the right knee cap, line of duty, was noted, and the Veteran was advised to seek VA follow-up treatment with an orthopedist. There is competent evidence of record demonstrating the presence of a right knee disability prior to active duty service. A May 1968 STR noted another episode of right knee dislocation, which condition the Veteran stated has persisted since age 5. As previously stated, in the November 1967 entrance report of medical history, the Veteran himself noted a history of trick or locked knee. An August 1978 post-service treatment record noted a diagnosis of bilateral subluxing patella; happened as a child. Further, in a January 2006 statement, the Veteran stated that service aggravated his preexisting condition. A September 2007 statement by the Veteran noted that in 1966, the army turned him down for a trick right knee. And in an April 2007 statement from his representative and in the December 2007 RO hearing, the Veteran admitted that he dislocated his knee once prior to service, in the seventh grade. Post-service VA treatment records begin in 1978 and noted a trick knee and continuing knee complaints. [The Board here notes that a November 2010 memorandum stated that records in the 1970s from the Dallas VA Medical Center were unavailable.] In September 1978, the Veteran received a VA orthopedic examination. The examination report noted a history given by the Veteran of having had recurrent dislocations of both patellae since he was six years old. He stated that presently, he suffered dislocations at least twice a year of both of the kneecaps, and he is currently wearing rubberized knee sleeves. Physical examination of the right knee revealed no heat, redness, or swelling, with no limitation in range of motion. The ligaments, both cruciates and collaterals were intact. X-ray imaging at this time showed no evidence of fracture or dislocation in either knee joint; however, on the AP views, the kneecap appeared to be displaced slightly laterally, more on the left than on the right. The examiner provided a diagnosis of a history of recurrent dislocation of the patellae bilateral. A May 1983 private treatment record noted a hurt knee; however, an x-ray done at that time found no abnormalities of the knee. July 1999 and June 2000 x-ray imaging revealed similar findings. A small medial tibial osteophyte was noted, with no significant joint space narrowing or acute traumatic injury identified. No reactive sclerosis or eburnation was identified. VA treatment records from 2004 to 2010 note continued complaints of right knee pain and show that the Veteran underwent a total right knee replacement in August 2006. They reveal a diagnosis of degenerative joint disease pre-surgery and right knee joint replacement status post-surgery. The Veteran underwent a total right knee replacement in August 2006. February 2007 and April 2008 imaging revealed a right total knee arthroplasty, with no abnormal lucency at the cement-bone interface and no periprosthetic fracture; near anatomic alignment is maintained. A November 2008 physical examination revealed right knee with full extension, nearly full flexion, no erythema, warmth, or tenderness to palpation, and no sensory deficits grossly (although the patient reported some numbness to touch on the knee). Right knee imaging revealed a total knee replacement without evidence of infection or failure. The Veteran was afforded a VA joints examination in March 2007. The examiner noted an extensive review of the claims file, as well as the Veteran's current treatment records, and stated that the records indicated that the Veteran had a preexisting chronic dislocation of the patella of the right knee starting at age 5. He noted that the Veteran has continued to have recurrent dislocation of the right patella. Additionally, he noted a 1978 x-ray of the knee which showed no joint disease at that time, in addition to an MRI in 1992, which showed he had a general arthritic component of the right knee with arthritis of the patellofemoral joint. He had a transverse tear of the posterior horn of the medial meniscus as well as grade 2 abnormalities of the posterior horn of the lateral meniscus. There was also a questionable tear of the anterior horn of the medial meniscus. As for current treatment, the examiner noted that the Veteran underwent a total knee replacement in August 2006, and is currently in physical therapy continuing to get better. The examiner reported that the Veteran gets no flare-ups, uses no braces, but uses a cane to walk. The Veteran stated that his daily activities are affected, in that walking is very difficult, he does no household chores, and he no longer holds down a job because of his knee. Physical examination of the knee revealed a 15cm central scar, which is nontender, nonraised, and not adherent to subcutaneous structures. The Veteran could only flex to 90 degrees, and extend to 0 degrees. Repeat flexion and extension of the knee produced some pain and weakness, but no fatigue. There was no indication of tenderness or swelling in and around the patella, or around the medial and lateral aspect of the joint. Further, he had no Baker cyst or tenderness in the posterior aspect of the joint. Lateral and medial stress on the knee showed no laxity of the lateral and medial collateral ligaments. He had negative anterior and posterior drawer sign. February 2007 imaging of the knee was also reviewed, showing no significant complications of the knee replacement surgery. After the examination, the examiner opined that chronic instability of the patella that the Veteran has experienced has led to patellofemoral osteoarthritis. The correction for this is patella stabilization, which the Veteran did not undergo. The Veteran had a history of having unstable patella since age 5 and continued to have a patella dislocation and instability while he was in the military, but the evidence did not indicate his condition was any greater than what he had in the past or after he was discharged. Specifically, the examiner noted the 1978 normal imaging of the knee, showing no degenerative joint disease, and which the examiner felt indicates that even with his chronic patellofemoral dislocation, after he got out of the service, he was still not bad enough to develop radiological evidence of deterioration of the patellar or the patellofemoral area at that time; thus, service did not accelerate his degenerative joint disease to the point where he showed evidence in the x-ray. In sum, the examiner concluded that the Veteran's current knee problem was not accelerated beyond the natural progression by his military service, and that his current knee problem was not caused by his military service. A July 2007 social security disability determination found the Veteran disabled since August 16, 2004 with osteoarthritis of the knees (status post right total knee replacement). At the June 2011 Board hearing, the Veteran testified that he dislocated his knee in basic training, first injuring it in January 1968 while low crawling under fire at night, under barbed wire. He stated that he had no knee problems prior to service. The Veteran's brother submitted a statement in July 2012 stating that he was about 9 years old when his brother went into the service and he cannot recall his brother having knee problems prior to service. The Veteran was again afforded a VA examination in November 2012. The examiner noted the Veteran's previous knee replacement with intermediate degrees of residual weakness, pain or limitation, as well as a history of a preexisting chronic dislocation of the patella of the right knee since age 6. The examiner noted a thorough review of the Veteran's STRs and post-treatment records. The Veteran reported flare-ups, which impact the function of his knee and limit his walking. On examination, range of motion studies revealed right knee flexion to 110 degrees, and 100 degrees with pain; right knee extension with no limitation and no objective evidence of painful motion; left knee flexion to 130 degrees with no objective evidence of painful motion; left knee extension with no limitation and no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with no additional limitation in range of motion. The examiner noted that range of motion was normal for this Veteran. The examiner did note functional loss brought on by pain on movement, as well as tenderness or pain to palpation. Muscle strength and joint stability tests were normal. There was no evidence or a history of recurrent patellar dislocation. The examiner also reported that the Veteran currently uses a cane and that the Veteran's knee condition does not impact his ability to work. The examiner also reviewed previous imaging of the knee, which showed status post right knee prosthesis placement without radiograph evidence of hardware loosening or fracture. The examiner concluded that the claimed condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted the Veteran's normal x-rays without evidence of degenerative joint disease 8 years after he left service (1978), and the fact that there were no increased patellar dislocation episodes more than in service. He stated that this indicates the Veteran's knee was not aggravated beyond the natural progression. Further, because the Veteran did not get his patella fixed over the many years after his discharge from service and after repetitive dislocation and the aging process, the Veteran eventually developed osteoarthritis. Additionally, the examiner opined that the Veteran's current right knee disability is less likely as not causally related to any injury or incident in service. Legal Criteria Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system). Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). For purposes of illustrating the analysis to be used in such cases, the Board notes the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation 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. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the Veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. Analysis Although a trick/locked knee reported by the Veteran at the time of entrance examination, the examination report does not otherwise note any preexisting right knee disability. In fact, the lower extremities were clinically evaluated as normal. The Board must therefore find that no preexisting right knee disability was noted on entry into service and that the Veteran must be afforded the benefit of the presumption of soundness. However, for reasons explained below, the Board finds that the presumption of soundness is rebutted by clear and unmistakable evidence that the right knee disability preexisted service and clear and unmistakable evidence that such preexisting disorder was not aggravated by service. However, the overall record makes it quite clear that the Veteran has suffered from dislocations of the knee (trick/locked knee) prior to service, as supported by his and his representative's statements and the Veteran's December 2007 hearing testimony before the RO. See specific examples above. Moreover, the Veteran reported pre-service right knee symptoms during the course of treatment during service. The Court has held that, as a matter of law, the presumption of soundness is rebutted by clear and unmistakable evidence consisting of a Veteran's own admission of a pre-service history of medical problems during in-service clinical examinations. Doran v. Brown, 6 Vet. App. 283, 286 (1994). The Board finds that there is clear and unmistakable evidence that a right knee disability preexisted service. After reviewing the totality of the pertinent evidence, the Board further finds that there is clear and unmistakable evidence that there was no aggravation of the preexisting right knee disorder. Although the Veteran clearly experienced right knee symptomatology during his service, there is persuasive medical evidence (including the November 2012 VA examiner's opinion) that the right knee symptoms noted during service were more in the nature of the natural progression of the disorder as opposed to an increase in the underlying severity of the disorder. The Board acknowledges the Veteran's continued treatment for knee pain, and that the Veteran underwent a total knee replacement in August 2006. However, the Board notes that the Veteran underwent x-ray imaging in 1978, 8 years after service, which found no abnormalities of the knee. This evidence further supports a finding that the Veteran's knee problems in service represented a flare-up of the preexisting disorder and did not represent an increase in the underlying severity of the disorder. Temporary flare-ups during service of the symptoms of a disability, without overall worsening of the condition itself, do not constitute aggravation of the disability. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Additionally, the Board notes the opinions of VA examiners in 1978, 2007, and 2012. These examiners all found that the Veteran's right knee disability preexisted his service and was not aggravated by service. The examiners noted a thorough review of the record, including in-service and post-service treatment records, in reaching their conclusion. The 2007 and 2012 VA examiners additionally opined regarding the Veteran's current right knee disability, status right knee joint replacement. They found that it was less likely than not that this disability was caused by an in-service event or injury, as the Veteran was treated with conservative therapy as well as was put in low profile to protect his knee after repetitive dislocation of the patella of the right knee, but there was no evidence of any severe dislocation and early onset of osteoarthritis in the STRs. Additionally, the 1978 post-service treatment record and x-rays (the earliest available evidence post-service) reveal no knee arthritis, just laxity in the patella. The Board has considered the Veteran's statements, which the Board notes show some inconsistencies, both during and after service. The Board notes that the Veteran represented histories in-service of a knee condition since age 5 or 6. Post-service, he testified in December 2007 that he only dislocated his knee once prior to service, while in seventh grade. His representative similarly submitted a statement to the same effect in September 2007. However, in his June 2011 Board hearing, the Veteran appears to have stated that he had no knee problems prior to service. To the extent that the Veteran may now be denying pre-service knee problems, such assertions are inconsistent with his previous statements and therefore not credible. To the extent that the Veteran may be arguing that the symptoms reported during service shows an increase in severity beyond the natural progression of the disease, the Board finds that opinions of trained medical personnel (based on review of the record and examination) to be more probative. Based on the record, the Board finds that the presumption of soundness has been rebutted. Therefore, the right knee disability preexisted service. The evidence outlined above also compels a finding that there was no aggravation of the preexisting right knee disability during service. The preponderance of the evidence is also against a finding that the Veteran suffers from right knee disability (separate from the preexisting right knee disability) which is causally related to his service. Accordingly, service connection is not warranted on any basis. ORDER Entitlement to service connection for a right knee disability is not warranted. The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs