Citation Nr: 1317488 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 07-02 188 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a total knee replacement, left knee (a left knee disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military from September to November 1969. This appeal comes to the Board of Veterans' Appeals (Board) from a February 2006 rating decision. In April 2009, the Veteran was afforded a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. The Board denied the Veteran's claim in a May 2009 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In an order dated February 18, 2010, the Court remanded the case to the Board pursuant to the terms of a Joint Motion for Remand (JMR one). The Board remanded the case in September 2010 for additional development, and then issued a second decision in March 2012, once again denying the Veteran's claim. He appealed the decision, and the Board's claim was vacated and remanded pursuant to the terms of a November 2012 JMR (JMR two). In March 2013 the Board obtained a medical opinion of record in order to address the concerns expressed in the JMRs. FINDINGS OF FACT 1. The presumption of soundness attaches to the Veteran's left knee. 2. The evidence clearly and unmistakably shows both that a torn medial meniscus in the Veteran's left knee preexisted service, and that it did not chronically worsen or increase in severity during his military service. CONCLUSION OF LAW The Veteran's preexisting torn medial meniscus, left knee, was not aggravated during active service. 38 U.S.C.A. §§ 1110, 1111, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service Connection The Veteran asserts that he is entitled to service connection for a total knee replacement, left knee. For the reasons that follow, the Board finds that the Veteran's torn left meniscus clearly and unmistakably both pre-existed service and was not aggravated by service, and that therefore service connection is not warranted. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. 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 examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b). A veteran who served during a period of war, as the veteran here, is presumed to be in sound condition when he entered into military service except for conditions noted on entrance medical examination. 38 U.S.C.A. § 1111 (West 2002). Where there is "clear and unmistakable" evidence that the injury or disease claimed pre-existed service, the presumption does not attach, and the issue becomes whether the disease or injury was aggravated during service. Id. The Veteran's enlistment physical, dated in May 1969, shows that his lower extremities were clinically evaluated as normal, and that there were no other indications of a left knee disorder. In an associated "report of medical history" the Veteran denied any history of knee symptoms. Given the foregoing, the Veteran is entitled to a presumption of soundness at service entrance. Therefore, the Board must determine whether the presumption of soundness has been rebutted by clear and unmistakable evidence. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Cotant v. Principi, 17 Vet. App. 116 (2003); VAOPGCPREC 3-2003, 69 Fed. Reg. 25178 (2004). In Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004), the U.S. Court of Appeals for the Federal Circuit held that: 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. § 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 § 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. VA Office of the General Counsel has determined that VA must show by clear and unmistakable evidence both that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. Under 38 C.F.R. § 3.304, the standard for clear and unmistakable evidence is that the determination of inception "should be based on thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular...disease...." Determination of the existence of a pre-existing condition may be supported in two ways. First, pre-existence may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion. See Miller v. West, 11 Vet. App. 345, 348 (1998). Second, preexistence may be supported by a later medical opinion based upon statements made by the Veteran about the pre-service history of his condition. Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). Because the presumption of soundness has been determined to apply to the Veteran's case, the Board must address first whether the evidence of record clearly and unmistakably shows that the Veteran's left knee disability existed prior to service, and if so, the Board must determine whether the evidence clearly and unmistakably shows that the Veteran's pre-existing left knee disability was permanently aggravated by his military service. Did the Veteran's left knee disability exist prior to service? The Veteran has repeatedly insisted (and has continued to assert in an April 2013 statement) that he did not have any left knee disorder prior to entry to service. During his hearing, he testified, under oath, that in-service findings of a preexisting left knee disorder are in error, and that he did not have a left knee disorder prior to service. He further testified that he sustained a left knee injury while carrying another soldier on his back during training, and that he was treated at a hospital for this injury, to include injections of dye into the knee which resulted in a diagnosis of a torn medial meniscus. He has also submitted statements from three family members, who have written to back-up the Veteran's assertion that he did not have a left knee injury prior to service. He has also submitted a number of photographs of himself, to include pages from his high school yearbook, and photographs taken during service, in support of his argument that he was physically active prior to service and did not have a left knee injury prior to service. These photographs show him in various athletic activities, to include playing football and participating in a marching band. Following the Board's September 2010 remand, the Veteran submitted additional statements, including from his family, that are essentially duplicative of the previously received evidence, and have been reviewed in detail. With respect to the Veteran's contentions that he incurred a left knee disability in service, the Board observes that lay evidence can be competent and sufficient to establish each element of service connection in certain circumstances. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). In evaluating the lay evidence, the Board must address first competency, then credibility, and finally probative weight. Id., at 1335-37. The Board acknowledges that the Veteran is competent to give evidence about what he experiences. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to diagnose any medical disorder or render an opinion as to the cause or etiology of any current disorder because he does not have the requisite medical knowledge or training to address a complex medical question. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). To the extent that the Veteran is reporting that he had no left knee symptomatology prior to entry to service, such a statement is within a lay observer's competency; although the Board does acknowledge, as was suggested in the November 2012 JMR, that the Veteran is not competent to diagnose a specifically knee injury/disability such as a meniscus tear, as such a complex medical determination requires medical training and expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Having established the Veteran's, and his relatives, competency to discuss knee related symptomatology, the Board turns to the credibility and weight of their statements. It is here that the Veteran's service treatment records reveal a very different history from the one he and his relatives present in support of his claim. As noted above, the Veteran's May 1969 pre-induction physical examination found his lower extremities to be normal, and there were no other indications of a left knee disorder. In an associated "report of medical history" the Veteran specifically denied any history of knee problems, which supports his current assertion that he did not have any knee problems prior to enlistment. The Veteran entered active service on September 16, 1969. On a flight physical examination report, dated October 2, 1969, his lower extremities were clinically evaluated as normal, but the document found that the Veteran was medically disqualified from army aviation training by reason of a symptomatic left knee. It was recommended that he be seen by the orthopedic department. At the examination the Veteran asserted that his "left knee hurts all the time with exercise - throbs at night." Importantly, though the Veteran had been in the military at this point for only several weeks, he made no reference to the occurrence of any knee injury from September 16, 1969 when he entered service through October 2, 1969 when he reported his ongoing problem of his knee pain with exercise. The Veteran was seen again on October 13, 1969, less than one month after he entered service, at which time it was noted that the he had injured his knees playing football in 1965 (prior to service). At this point, it is the Veteran himself that is providing highly probative factual evidence against his own claim, clearly providing a factual history a foot injury while playing football in 1965 prior to service. The Veteran reported left knee symptoms of "giving out," swelling, and locking. He had full range of motion with mild crepitation and no ligamentous instability or effusion. There was tenderness along the joint line. McMurray's was equivocal. X-rays of the knee were normal, but there was 1/2 inch of quad atrophy in the left leg when compared with the right leg. The diagnosis was possible torn medial meniscus. The report notes that the Veteran was scheduled for an arthrogram on October 21, 1969; and a record from October 22, 1969, notes "arthrogram shows tear left medial meniscus." The October 22, 1969 report also contains the Veteran's complaints that his "left knee hurts all the time with exercise - throbs at night- slightly swollen". It was felt that the Veteran should be medically disqualified from military duty. A "narrative summary" dated October 27, 1969, shows that the Veteran again reported that he injured his left knee in a football accident in 1965 (prior to service), and that since that time his left knee had given out, swelled and locked on multiple occasions. The diagnosis was torn medial meniscus, left knee. The report indicates that this injury was not incurred in the line of duty, and that it existed prior to service (EPTS), although no specific rationale was given for such a conclusion. The report further notes that the Veteran was found to not to have met induction standards, and he was recommended for presentation to the medical board for separation of an EPTS condition "not service aggravated". This report provides strong evidence against the Veteran's claim, advanced years later, that his left knee disability did not exist prior to service and that he injured it during basic training. A Medical Board report, dated October 23, 1969, notes pain at the medial meniscus, left knee, and that the Veteran had a torn medial meniscus, left knee. The report indicates that this injury was not incurred in the line of duty, and that it existed prior to service. A Medical Board report (DA 8-118), dated in November 1969, indicates that the Veteran had a torn medial meniscus of the left knee that was not incurred in the line of duty, existed prior to service, and was not aggravated by active duty. Separation was recommended "by reason of erroneous enlistment." Following service, the Veteran underwent an arthrotomy and medial meniscectomy, with debridement of the patella in March 1970. The next relevant medical evidence is dated about 30 years later, in late 2000, and shows complaints of left knee symptoms. In June 2001, the Veteran underwent a left knee replacement, and he has received ongoing treatment for left knee symptoms since that time. As noted, the Veteran has repeatedly asserted that he first injured his left knee during service and that no left knee disability existed prior to service. However, for the following reasons, the Board finds that the evidentiary assertions of the Veteran are inherently incredible on the basis of the fact that he contradicts his own statements during the course of medical treatment and does so at a time in which he has a monetary interest in that contradiction. Statements made for the purposes of medical diagnosis or treatment are considered to be of heightened reliability. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); see also Fed. Rules of Evid. 803, Hearsay Exception 4. Furthermore, prior inconsistent statements are generally considered to diminish credibility. See Fed. Rules of Evid. 613. While the Rules of Evidence are not binding in VA proceedings, they remain persuasive authority in weighing credibility. Rucker v. Brown, 10 Vet. App. 67, 73 (1997). Moreover, contemporaneous evidence is considered to have greater probative value than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board considers the differences between the Veteran's in-service statements regarding his left knee injury history and his more contemporaneous statements that were rendered in conjunction with this claim to be so significant as to render the entirety of his testimony incredible. As such, the Board will assign limited probative value to his statements. Simply stated, the Veteran and his family member have provided the Board (and, by extension, the Court itself) a highly inaccurate history of the Veteran's disability. Moreover, in light of the fact that this case has been the subject of extensive litigation the Board believes it must be clear on this point: The Veteran's statements are found to provide evidence against his claim in that the Veteran has clearly lied, under oath, to the Board. The Veteran's statements and the written statements he has supplied are not reconcilable with the service records, which are complete and highly detailed. In this regard, it is important to note that during the Veteran's service from September to November 1969 the Veteran repeatedly noted a pre-service injury (a football injury). The medical officers during service could not have known the Veteran played football prior to service unless the Veteran told them at that time. The Veteran himself has provided the Board with proof that he played football prior to service (the photo), supporting his own statements in service and providing highly probative evidence against his testimony before the Board, which was detailed. In April 2013, the Veteran argued that there was no medical evidence that he had a knee injury in 1965 because he never needed knee treatment at that time. He also asserted that he had not told the medical officer at Fort Polk about any knee injury and that the medical officer had only asked him if he ever played sports to which he reported responding that he had played football, basketball, and track, and he recalled acknowledging that football was a contact sport. However, the fact remains that in multiple service treatment records it was noted not only that the Veteran did injure his left knee prior to service, but there was even a specific date provided for the injury, prior to service. It is important to note that this is not simply a situation where a veteran (perhaps eager to serve in the military and, therefore, failing to cite to a pre-service disability) contends that his pre-service injury was aggravated by service. The Veteran in this case has repeatedly asserted to VA that the pre-service injury, which clearly did occur, did not occur, undermining his credibility with the Board totally. This lack of trustworthiness undermines not only his own statements, but also any evidence he would submit on his behalf in order to obtain service connection, including statements from his family. As for the Veteran's family, including his father, stepmother and brother, the Board considers these statements to be of limited credibility as well. First, the affiants are related to the Veteran, creating a conflict of interest. Second, the statements concern the distant past, thirty five to forty years after the events in question. Third, and most importantly, these statements are also directly contradictory to the history as reported by the Veteran himself during service. For example, the Veteran's twin brother submitted a November 2011 statement in which he asserted that the Veteran never had any serious injuries until he was in the Army and had no injuries to his knees or anything else during high school. The Veteran's brother also claimed that the Veteran called him during service to report that he had experienced a serious knee injury that disqualified him for the helicopter program for which he enlisted. Importantly, the Veteran's brother claimed that the Veteran had been presented with a choice of surgery in the Army and continuing in the infantry or accepting a medical discharge. The brother claimed that they talked over the choice and agreed he should leave the Army. The Board finds this part of the statement to be inherently incredible. The Veteran's service treatment records show plainly that the Veteran was found not fit for military service. No "choice" was provided. The Veteran's own testimony to the Board, which was very detailed regarding what, exactly, occurred during his limited period of service makes no reference to this alleged "choice" of surgery or discharge. No "choice" of continuing in the infantry was ever presented to the Veteran in the detailed service record. The brother recollection of events is highly inaccurate. The exaggeration of what occurred during service only undermines the brother's credibility with the Board, providing more evidence against this claim, undermining all evidence that has been submitted in support of this claim, supporting the Board finding that the Veteran is not being factually accurate, as well as those who have submitted statements on his behalf. In this regard, it is important to note that the Veteran's testimony to the undersigned was unusually detailed. This is not simply a situation in which a veteran's recollection is faulty. The Veteran has provided detailed testimony to the undersigned that he never had a pre-service injury, which is clearly not true, based on his own prior statements. The Veteran was summarily discharged for failure to meet enlistment standards, as discussed above. The Board finds that the family statements are so incredible as to be without probative value, providing actually more evidence against this claim by clearly submitting evidence which is false. It is important to note that cases are routinely granted based solely on the credible lay statements of veterans. In sum, in this highly unusual situation, the Board has found the lay evidence in this case to be so incredible as to be without positive probative value, providing instead clear and unmistakable factual evidence against this claim, clearly indicating an effort to deliberately conceal the pre-service event (the knee injury in 1965). The Board now turns to the medical evidence of record. The Veteran submitted a single page left knee treatment dated in March 1970. This record shows that he was treated for a transchondral fracture of the left patella. He then underwent an arthrotomy, a medial meniscectomy with debridement of the patella. A VA examination report, dated in February 2006, shows that the VA examiner could not "support or refute" the Veteran's reported history (including that he did not have a preexisting left knee disorder), but that the record suggested that his injury was not service-connected. He further noted that the Veteran's knee replacement following remote surgery for a torn medial meniscus was "a common pattern of evolution after meniscal injury." Following the Board's May 2009 decision in this case, the Veteran appealed to the Court. In February 2010, the Court endorsed a JMR and ordered the May 2009 decision vacated and remanded for further proceedings. In particular, the JMR concluded that the February 2006 VA examination report was not adequate. The JMR instructed that the Veteran receive another VA examination. The Board on reexamination of the examination report concludes that indeed the opinion provided does not address the questions that are relevant to this appeal and is therefore inadequate. As such, the Board will not afford it any weight. The Veteran was seen for a December 2010 VA examination at which he reported his same contentions as recounted above. The examiner reviewed the claims file and noted that the February 2006 opinion stating that the knee replacement was a common pattern of evolution after meniscal injury. The examiner indicated that it was not possible to conclude that the Veteran's left knee disability preexisted service without resort to speculation because there was no clinical data from prior to his entrance to service and there was only the Veteran's report of a 1965 injury. On this basis, the examiner concluded that the medial meniscus injury was incurred in-service. In a March 2012 decision, the Board explained that the examiner appeared to have discounted the Veteran's in-service statements, which the Board found to be highly credible. The examiner also appeared to seek confirmation through clinical data prior to service, which does not exist and cannot be created. The examiner offered no other basis on which to suppose that the Veteran was sound at entry. The Board explained that there were no preservice records of left knee treatment in the record, but noted that two service treatment reports show that the Veteran reported a preservice history of a left knee injury that was incurred during participation in a specific activity, i.e., a football injury. The Veteran is competent to report such a history, and his submitted photographs confirm that he played football in high school. Miller; Harris. At that time, he also reported specific residual symptoms due to his football injury, i.e., giving out, swelling, and locking "on multiple occasions." The Board concluded that the examiner's reliance on clinical data rather than relying on the contemporaneous lay statements was in error. The examiner also failed to provide substantive analysis of the service treatment records. For example: On October 13, 1969, service treatment reports note a history of left knee symptoms, and mild left knee crepitation, and atrophy of the left quadriceps, less than two weeks after his initial report of knee pain on October 2, 1969, and less than one month after induction on September 16, 1969. The Board questioned whether the Veteran was suggesting that his left quadriceps atrophied in only the days between when the alleged injury in service occurred and when he was treated on October 13th? As described above, the Veteran's service treatment reports clearly show that the medical officers in service determined that his torn medial meniscus of the left knee existed prior to service, that it was not incurred in the line of duty, that separation was recommended "by reason of erroneous enlistment," and that he did not meet induction standards. Yet, in his December 2010 opinion, the examiner failed to explain how was unable to reach an opinion when the treating physicians and the Medical Evaluation Board clearly were able to do so. In this regard, the Board believes that there are significant problems associated with the examiner's conclusions, or inability to reach conclusions. This opinion is also considered to be inadequate and of no probative value. The Board concluded in 2012 that while the December 2012 examination was inadequate, another remand was unnecessary as it was unclear how any benefit would flow to the Veteran in light of the factual determinations made in this case. While the Board did thereafter obtain an additional medical opinion to address the concerns expressed in the JMR, the following factual determinations that the Board made in March 2012 have not changed, and the Board reasserts them here: (1) the Veteran had a pre-existing knee disability prior to service, caused by football; (2) the Veteran did not inform medical officers at induction of the pre-existing knee disability; (3) there was never a knee injury in service; (4) the pre-existing knee disability was discovered by the military after induction and, as a result, the Veteran was discharged from service; and (5) the Veteran has not told the truth at the hearing before the Board and has provided false information in support of his claim. Each time the Board has reviewed the claims file, more facts arise which provide evidence against this claim. The facts, as they occurred in 1969, provide a clear narrative: the Veteran, sincerely wanting to fly helicopters (and serve his country), did not tell medical officers at enlistment about his knee problems, which was later discovered. Despite the Board's detailed explanation, the March 2012 Board decision was vacated and remanded pursuant to a JMR. It is noted, however, that the JMR did not specifically find error in the conclusion that the Veteran had a left knee disability that existed prior to service. Rather, the JMR was premised on the fact that the medical opinions of record were inadequate, and the JMR cited to case law suggesting that if a opinion was provided, it had to be adequate. As such, even though a medical opinion may not have been necessary given the Board's conclusions, because VA had already provided an examination which had turned out to be inadequate, the Board was directed to obtain an adequate medical opinion, notwithstanding the factual findings above. The Board complied with this directive. However, the Board would like to make clear that because the solicited medical opinion was to be based on a historical review of records, and because the Veteran's contentions in this case are well known, the Board concluded that while an additional medical opinion was needed, an additional physical examination was not. In this regard, while the JMR did require a medical opinion, it did not require a medical examination. In this regard, there was no problem with the prior medical examination, simply the opinion based on the examination regarding the critical question in this case: etiology. The nature and extent of the disability is not the key issue before the Board. In February 2013, the Board remanded the claim to obtain a medical opinion addressing whether, on the basis of the clinical record and the known development characteristics of torn left knee meniscus, and a factual finding that the Veteran did not injure his knee during service, it could be concluded with clear and unmistakable certainty that the Veteran's torn left knee meniscus diagnosed in service preexisted his entry into active military service. An orthopedic doctor reviewed the Veteran's claims file, and in March 2013 opined that it could be concluded with clear and unmistakable certainty that the Veteran's torn left knee meniscus diagnosed in service actually preexisted his entry into active military service. The orthopedic doctor explained that there was history (namely a clinical record from October 27, 1969) which stated that there was a knee injury in 1965 with subsequent intermittent locking, giving way, and swelling. The orthopedic doctor added that given that the weight of evidence established that the Veteran had not separately injured his left knee in service, his quadriceps atrophy that was noted while in service would have to be secondary to the pre-existing knee pathology (which was a torn left medial meniscus). Although the Veteran has asserted that he did not have a preexisting left knee injury, and although he has submitted several lay statements in support of this assertion, the Board has determined these statements to be so incredible as to be without probative value, clearly and unmistakably outweighed by other evidence cited above, including the Veteran's own prior statements. The Board affords the detailed service treatment reports great probative value, as they were created contemporaneously with his service in 1969, more than 40 years ago. Struck v. Brown, 9 Vet. App. 145, 155-56 (1996). The service records in this case are unmistakably unambiguous. Moreover, the recent medical opinion of record also concluded that the Veteran had a left knee disability at time of enlistment. Under these circumstances, the Board finds that the evidence clearly and unmistakably establishes that the Veteran's left knee torn medial meniscus existed prior to service. See Wagner, supra; VAOPGCPREC 3-03 (July 16, 2003). Was the pre-existing left knee disability permanently aggravated by service? Having found that the evidence clearly and unmistakably shows that the Veteran had a left knee disorder that preexisted his service, the Board must now consider whether the evidence clearly and unmistakably shows that the preexisting injury was not aggravated by service. Id. A preexisting injury or disease will be considered to have been aggravated by 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. § 1153; 38 C.F.R. § 3.306. However, 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 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). If evidence is submitted sufficient to demonstrate that a veteran's disorder pre-existed service, and underwent an increase in severity during service, it is presumed that the disorder was aggravated by service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. Id. With regard to the issue of aggravation, the Board finds that the evidence clearly and unmistakably shows that the Veteran's preexisting left knee condition underwent no permanent increase in severity during service. The Board notes initially that all of the lay evidence is directed at establishing in-service incurrence, not aggravation, of the left knee disability. As such, none of the lay evidence is relevant to the question of aggravation. The Veteran's Medical Board reports showed that service physicians determined that his preexisting torn medial meniscus was not aggravated by his service, providing highly probative evidence against this claim. To the extent that the Veteran asserts that he sustained a left knee injury during service, while carrying another soldier on his back, the service treatment reports do not support this. While he experienced left knee symptoms such as pain during training, none of the service treatment reports note any such in-service left knee injury, including a statement from the Veteran himself at that time. For reasons cited above, his statements regarding the events that occurred both prior to service and during service have been found to be highly unreliable. The Veteran appears to have testified that he received treatment right after the alleged left knee injury that involved injections of dye into the left knee which showed a torn medial meniscus. However, the service medical reports do not corroborate this (the Veteran may be referring to the arthrogram, where they may have used dye to detect the tear). Rather, the service treatment records show that he reported a history of left knee pain on October 2, 1969, that he received treatment for left knee symptoms on October 13, 1969, and that he was scheduled for an arthrogram about one week later, on October 21, 1969. See also service treatment report, dated October 22, 1969 (noting "arthrogram shows tear left medial meniscus"). The Veteran's period of service was very brief, with his first complaints of knee pain just over two weeks after entry to service and the first mention of unfitness soon after, with no indication, from even the Veteran himself (during service), of a service injury, but instead clear and unmistakable evidence of a pre-service injury. The Board has considered all of the Veteran's contentions, including his assertion that he signed the statement on October 23, 1969 (indicating that he had an erroneous enlistment and did not meet the enlistment standards) as simply a fast way to be discharged from the military. However, this contention makes no sense for the following reason: A report, dated October 13, 1969, 10 days before he signed this statement, well before there was any suggestion that the Veteran would need to be discharged from service, and less than one month after he entered service, notes "injured knees in football in 1965." The Veteran provided this statement well before the 23rd, undermining his subsequent contention that he was told to sign this statement because he was no longer was going to be in the flight program and it was the medical officer (not the Veteran) who suggested that it was his playing sports that caused the problem. See Board transcript at page 5. These facts provide only more evidence in support of a negative credibility determination. A detailed review of the clams file only provides more evidence against this claim with each review. Simply stated, the service treatment records provide clear and unmistakable evidence against in-service aggravation of the torn medial meniscus of the left knee. Finally, there is no post-service medical evidence which contradicts the conclusions in the service treatment records regarding the issue of aggravation. As noted, the 2006 and 2010 VA examinations and opinions are considered to be inadequate for rating purposes, but even so neither report suggests that the Veteran's knee disability increased in severity during his brief stint on active duty. The February 2006 VA examiner stated that the record suggests that the Veteran's injury was not service-connected. The December 2010 VA examination report did not address aggravation, having concluded, erroneously, that the left knee medial meniscus tear was incurred in service. The February 2006 opinion states that the Veteran's ultimate condition, status post total knee replacement, is a common terminus for torn medial meniscus injuries. The December 2010 opinion appears to have agreed with this conclusion. The Board has found that the Veteran had this disability prior to service based on the facts of this case. The Veteran's statements (in service) regarding frequent locking in a situation where he had only been in the service for approximately two weeks fully supports this finding. Thus, if the Veteran had not entered service, he would be in approximately the same condition now. The Board cannot locate an increase in severity which would justify a grant of service connection for aggravation. See Falzone. The fact that the Veteran has submitted false testimony, and false statements, in supports of his claim only supports this finding. Nevertheless, the JMR directed that the Board obtain a medical opinion of record as to the question of aggravation. This was done. In May 2013, an orthopedic doctor opined that symptoms of a torn meniscus (locking, giving way, and swelling) commonly result in removal of the meniscus. He explained that both the tearing and removal of the meniscus decrease the cushioning effect of the meniscus, and when this occurs at a relatively young age, the risk of developing osteoarthritic changes is high, and constitutes a natural progression off the condition. Here, the doctor observed that the Veteran did eventually develop arthritis. However, noting that the meniscus injury had occurred prior to military service, and noting that there had not been any specific knee injury during service, the doctor stated that it could be concluded with clear and unmistakable certainty that any such pre-existing disability was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disorder. As stated above, the lay evidence does not address in-service aggravation. Based on the foregoing, the Board finds that the evidence clearly and unmistakably establishes that the Veteran's left knee condition both preexisted service, and was not aggravated by service, and the presumption of soundness is therefore considered to have been rebutted. See 38 U.S.C.A. § 1111; See Wagner, supra; 38 C.F.R. § 3.303; VAOPGCPREC 3-03 (July 16, 2003). Where the presumption of soundness is rebutted, a claimant can only receive service connection based on aggravation; however, the Board has already determined that the Veteran's torn left meniscus was clearly and unmistakably not aggravated during service and that there was never an in-service injury. Accordingly, the Board finds that the preponderance of the evidence is against a finding of either incurrence or aggravation of torn left meniscus during the Veteran's service, and his claim for service connection therefore fails. See Hickson, supra. As the evidence is clearly and unmistakably against the claim, the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Prior to initial adjudication of the Veteran's claim, a December 2005 letter fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. While this case was on remand, the RO conducted searches for treatment of the Veteran by the Iowa City VA Medical Center in 1970, but unfortunately no additional records were located. The Veteran was notified in a January 2011 letter that the RO could not locate the records. The Veteran responded in January 2011 letter that he did not have the records in his possession. Similarly, the Veteran was asked in a September 2010 letter to provide an authorized release form so that the RO could obtain treatment records from a Dr. C. The Veteran returned the form incorrectly completed, lacking an address for the doctor. The Veteran also submitted a March 1970 treatment record from the doctor. In the absence of a correctly completed form, the RO could provide no further assistance. This is not prejudicial to the Veteran, as he submitted a 1970 record showing treatment for a different condition from the doctor. The Board concludes that the requirements of 38 C.F.R. § 3.159(e) have been satisfied. Moreover, there was no allegation to the contrary in the JMR. Statements were also received from the Veteran's brother and step-mother. In April 2013, the Veteran requested that his brother and step-mother be separately contacted. However, this is unnecessary as VA is well aware of their contentions. Moreover, as discussed above the evidence of record ultimately reduced the probative value of their statements. As discussed above, the Veteran was afforded VA examinations in February 2006 and December 2010. These opinions were rendered by medical professionals following a thorough examination and interview of the Veteran and review of the claims file, but as discussed above, the Board has found the provided medical opinions to be essentially inadequate for rating purposes. The August 2010 remand instruction ordering the December 2010 VA examination indicated that the examiner was to consider the Board's assessment of credible evidence in the record, by considering the October 1969 statements most credible and finding the account of incurring additional left knee injury during service incredible. Most importantly, the Veteran has provided highly probative evidence against his own claim in the form of the statements he provided during service, undermining his current contentions. His current statements and his statements during service are not reconcilable and a factual determination must be made as to which should be believed. The Board has a duty to procure evidence in an impartial, unbiased and neutral manner. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board also has an equally important role in making factual determinations. This is a highly atypical situation in that testimony and statements are in serious question. See Evans v. Shinseki, 25 Vet. App. 7, 14 (2011) (stating that the VA system is "veteran-friendly" and "non-adversarial"); Kouvaris v. Shinseki, 22 Vet. App. 377, 381 (2009) (noting that the veterans benefits system is a "veteran-friendly" system). In this usual case, the Board must, unfortunately, make its findings particularly unequivocal in light of three facts: (1) the high standards of Wagner in this case; (2) the findings of the most recent VA examination; and (3) the extensive litigation in this case. In so doing, the Board concluded effectively that the examiner had assumed facts that were not supported by the evidence of record, where refuted by the evidence of record, and the opinion was effectively inadequate for rating purposes based on the factual findings of the Board. A straightforward review of the Veteran's service treatment records leaves little room for ambiguity in this case: the Veteran is an inaccurate historian of his disability. The JMR did not disagree with such a conclusion, but found that the Board had a duty to provide another examination based on the facts of this case. In response, the Board obtained an expert medical opinion, which was provided in March 2013. The opinion addressed the Board's questions directly and the examiner provided a complete rationale for his conclusions, basing it on his review of the claims file and his professional knowledge, training, and expertise. The Veteran was provided notice that such an opinion was being sought, and was then provided with a copy of the opinion and given 60 days to respond to the opinion and/or to submit evidence refuting the doctor's opinion. To this end, the Veteran initially indicated that he did not wish to waive AOJ review. However, in an April 2013 letter, he reported that such a response had been in error and he did in fact desire to waive AOJ consideration. The Veteran's representative argued in April 2013 that the orthopedic doctor's opinion did not meet the standard of clear and unmistakable evidence of a pre-existing knee injury. However, the Board notes that it is not simply the orthopedic doctor's opinion which constitutes the clear and unmistakable evidence of a pre-existing knee disability in this case. Rather, the service treatment records and the statements of the Veteran made in service that support the ultimate conclusion that the Veteran's left knee disability existed prior to service based on this high standard. The evidence, as a whole, supports this finding, not any one piece of evidence. The representative also cited to various points of case law, such as the legal proposition that as an examiner should consider lay evidence. The Board does not find fault in the representative's cites, but notes that the representative has not explained how the case law is relevant to the present appeal. The representative acknowledged that a medical opinion of record was obtained in 2013, but did not question the doctor's findings, except for suggesting that it was not clear and unmistakable evidence that the Veteran's left knee disability existed prior to service. Thus, the Board finds this opinion to be fully adequate. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board remanded this case in August 2010, instructing the RO to provide assistance in obtaining records from Dr. C., obtain 1970 Iowa City VA treatment records, and provide the Veteran with a VA examination. The Veteran stymied the RO efforts to assist him with his claim by incorrectly completing the records release form discussed above; no records from Iowa City were located after appropriate searching. In this regard, it is important to note that the Board has found that the VA has fulfilled the duty to assist in obtaining these records. The Veteran was provided with a VA examination in December 2010. While the December 2010 examination was ultimately found to be inadequate, the Board, as noted, did subsequently obtain an additional expert medical opinion which addressed the relevant questions on appeal. As such, the Board finds that there has now been at the very least substantial compliance with the August 2010 remand instructions, and there has also been full compliance with the November 2012 JMR. As such, further remand for additional development of the prior remand instructions is not warranted. See Stegall. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER Service connection for a total knee replacement, left knee (a left knee disability) is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs