Citation Nr: 1309982 Decision Date: 03/25/13 Archive Date: 04/02/13 DOCKET NO. 12-29 168 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran service on active duty from October 1945 to November 1946. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office in Phoenix, Arizona. The Veteran had a hearing before the undersigned in February 2013 and the transcript is of record. 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 shows that a left knee disability existed at the time of the Veteran's entry into active service. 2. There is no clear and unmistakable evidence that the pre-existing left knee disability was not aggravated during active service. CONCLUSION OF LAW The criteria of service connection for a left knee disability have been met. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has duties 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 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Given the favorable disposition below, no discussion of those duties is required. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The presumption of soundness relates to the second requirement - the showing of in-service incurrence or aggravation of a disease or injury. A claimant must show that he or she suffered from a disease or injury while in service. See Holton v. Shinseki, 557 F.3d 1362 (Fed. Cir. 2009). Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second element without further proof. For purposes of service connection pursuant to § 1110, 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. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) 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 show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Factual Background and Analysis Service treatment records (STRs) reflect a normal November 1945 enlistment examination. The Veteran did not identify any known defects at that time and there were no defects diagnosed. However, approximately two months later, in January 1946, the Veteran was seen in the orthopedic clinic with complaints of almost continuous pain, swelling, stiffness and questionable episodes of locking in his left knee since a football injury 3 years prior. On examination, marked effusion was noted and 200cc of serosanguineous fluid was aspirated. There was marked crepitation and instability of the medial and lateral collateral ligaments and some relaxation of the anterior cruciate. Diagnostic imaging revealed traumatic type of osteo-arthritis. An orthopedic note from May 1946 again indicated a football knee injury in 1942, prior to service. The examiner noted a history of locking and recurrent swelling since that time. Examination showed a slight increase of synovial fluid and moderate crepitus within the joint. X-rays revealed very slight arthritic changes of the articular surfaces of the tibia. The examiner's impression was a fracture of the semi-lunar cartilage, medial of the left knee, existed prior to enlistment. The examiner noted that the Veteran should not be accepted for reenlistment. On October 1946 discharge examination, the examiner noted "complaints of a left trick knee" and that the Veteran had injured his knee during service in February 1946. That examiner characterized the disability as not having existed prior to service and having been incurred during service. The Veteran has submitted many statements indicating that he suffered a left knee injury prior to service which disability was aggravated by service. In December 2011, he stated that he informed the Army in October 1945 when he was drafted that he had a football injury, which was never documented prior to service. The Veteran stated that the pain in his knee persisted in service and was worsened by his daily activities, training, and other strenuous duties. An October 2012 statement indicated that his left knee worsened during basic training because he did not get any special treatment; going on hikes, marches, participating in obstacle courses, calisthenics and marches to the rifle ranges. He then stated that he injured his knee again in 1946 playing baseball. Private treatment records indicated that the Veteran underwent a total left knee replacement in July 2003. Follow-up appointments and x-ray imaging reveal that the Veteran's knee is now pain-free and much improved. In June 2011, the Veteran was afforded a VA examination. Radiographs of the left knee revealed residuum of total knee arthroplasty with no evidence of acute fracture, destructive lesion or definite evidence for prosthetic loosening. Mineralization was normal. The examiner provided a diagnosis of status post left total knee replacement. On September 2011 continuation of the VA examination, the examiner noted a review of the Veteran's claim file, including his STRs indicating a prior to service knee injury. The examiner opined that the Veteran's left knee disability clearly and unmistakably existed prior to service, and clearly and unmistakably was not aggravated beyond its natural progression by an in-service injury, event, or illness. In support of his opinion, the examiner stated because there was documentation of a continuous knee condition since the original injury prior to service, there is no evidence of a worsening of the condition due to service and therefore there was no permanent aggravation of the condition beyond its natural progression in service. The Veteran testified at a hearing before the Board in February 2013 that he injured his left knee before entering service while playing football. He stated that he was hospitalized for about three days, but that the hospital no longer has these records. He then testified that he injured his left knee again while in service playing baseball. After this injury, he still finished basic training with his company, going on hikes, carrying heavy backpacks, etc. He testified that these activities made his knee worse. He stated that he continued to experience left knee problems after service, but just dealt with the pain, often wearing a knee brace. He then stated that he underwent a total left knee replacement in 2003. The Veteran's entrance examination was negative for any treatment, complaints, or diagnoses related to his left knee. Thus, the Board finds that the Veteran is presumed sound. Considering the overall record, the evidence makes it clear that the Veteran suffered a football injury prior to service, injuring his left knee. This pre-service injury is noted on in-service examinations and is supported by his statements and February 2013 hearing testimony. Additionally, the September 2011 VA examiner opined that clear and unmistakable evidence supported finding that the Veteran had a pre-existing left knee injury. 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). Thus, the Board finds that there is clear and unmistakable evidence that a left knee disability preexisted service. VA must still present clear and unmistakable evidence that the disability was not aggravated by service. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254 (1999). The STRS indicate the Veteran was seen on multiple occasions for left knee treatment in service. In January 1946, x-rays showed traumatic type of osteoarthritis and the examiner noted marked effusion, crepitation, and instability. In May 1946, an examiner noted a fracture of the semi-lunar cartilage in the Veteran's left knee. That examiner considered the Veteran's condition to have pre-existed service. The Veteran's October 1946 separation examination noted a left knee injury in service but included that examiner's observation that the condition did not pre-exist service, but was incurred during service. The Veteran noted on his VA Form 9 and in sworn testimony before the undersigned that he re-injured his knee during service. Although the VA examiner opined that the Veteran's left knee disability clearly and unmistakably pre-existed service and was not aggravated beyond its natural progression in service, the Board notes that the record include an examiner's notation at separation from service that the Veteran's knee condition was incurred in service and the Veteran's own credible report of having sustained an additional injury in service. The condition of the Veteran's knee deteriorated from the time of enlistment, when no defect was noted, to separation to the point that he was not recommended for reenlistment. The Board finds that the evidence is not clear and unmistakable with regard to whether the condition was not aggravated during service or that any increase was due to the natural progress. Joyce, 443 F.3d at 845. The presumption of soundness has not been rebutted. Wagner, supra. As the presumption of soundness has not been rebutted, the Veteran's left knee disability is presumed to have been incurred in service. He has indicated in numerous statements and in sworn testimony before the Board that his left knee problems continued after service. Further inquiry could certainly be undertaken with a view towards development of the claim; however, the reasonable-doubt rule operates in favor of the claimant when the positive and negative evidence is in approximate balance. 8 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Here, the Board is of the opinion that this point has been attained. Service connection is granted. ORDER Service connection for a left knee disability is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs