Citation Nr: 1320206 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-09 959 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a bilateral knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 1957 to December 1957. He also served in the Missouri National Guard, to include various periods of unverified active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in June 2012 and February 2013. The matter has been returned to the Board and is ready for appellate disposition. 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). FINDING OF FACT Meniscus tears and arthritis of the knees are related to the Veteran's active military service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, the criteria for service connection for bilateral knee disability of meniscus tears and arthritis have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307.3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance The Board believes no discussion of compliance with the notice and assistance provisions is necessary at this time. There is no prejudice to the Veteran as the benefits sought have been granted in full. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record. The Board notes that there are VA outpatient treatment records dated between January 2010 and January 2013 contained in Virtual VA. It is unclear whether they were reviewed by the RO; however, there is no prejudice to the Veteran in light of the favorable disposition below. 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 Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each 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). Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For some 'chronic diseases,' such as arthritis, presumptive service connection is available. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. Id. If not manifest during service, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and the 'chronic disease' became manifest to a degree of 10 percent within 1 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. 38 C.F.R. § 3.307. The term 'chronic disease', whether as shown during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429, slip op. at 13 (Fed. Cir. Feb. 21, 2013). In this decision, the Board has considered all lay and medical evidence as it pertains to the issue. 38 U.S.C.A. §§ 5107(b), 7104(a); 38 C.F.R. § 3.303(a). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran claims entitlement to service connection for a bilateral knee disability. Specifically, he claims he injured his knees in fall on an obstacle course during basic training. He contends that he has had bilateral knee problems since the injury. At the outset, the Board notes the majority of the Veteran's service treatment records are not on file and were destroyed in the 1973 fire at the National Personnel Records Center (NPRC) in St. Louis, Missouri, and are therefore largely unavailable. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Considering the evidence of record, summarized in pertinent part below, and in light of the applicable laws and regulations, the Board shall afford the Veteran all reasonable doubt and the claim shall be granted. 38 C.F.R. § 3.102. In this regard, service treatment records from the Veteran's active duty military service dated between July 1957 and December 1957 are unavailable. The Veteran served in the Missouri National Guard, with periods of ACDUTRA, but the specific dates are unverified due to unavailability of his records. A September 1962 "re-enlistment" medical examination indicated the Veteran had tenderness over the right meniscus. There was a positive "click" sign, but the ligaments were stable. The Veteran was diagnosed with a torn right lateral meniscus with locking. The provider noted ethe Veteran refused corrective surgery for knee injury and that the knee injury limited his physical activities in civilian life. There was no indication when the knee injury occurred. The Board would note that the examiner noted that an orthopedic consult was done in August 1963. The Board is cognizant that the consult is dated after the examination report and raises some question as to the accuracy of date of the examination. Another copy of the same report was date- stamped September 1963 and shows the Veteran was medically disqualified for military service and a handwritten notation of "EPTS." In an October 1962 Army "enlistment" medical history, the Veteran complained of a trick or locked knee. There was no further notation by the examiner. There are also two undated report of medical histories (one entitled enlistment Army and the other Army-Air Force). These records show the Veteran again indicated he had a trick or locked knee, but further reported at age 15 (one record) and age 17 (the other record) he was advised to have broken cartilage removed from his knee. An August 1963 orthopedic consult shows the Veteran had a history of knee injury playing football prior to enlistment in service. He complained that for several years his right knee locked on occasion and swelled. He was advised to have a meniscectomy, but he wanted to avoid surgery if possible. He was diagnosed with tear of right lateral meniscus and questionable tear of left meniscus. The provider indicated it existed prior to service and it was recommended he be discharged from service because he was unwilling to undergo corrective surgery. In a March 2009 statement, the Veteran indicated he saw a Dr. JH after his knee injuries in 1957, but that he was unsure if the doctor was still alive. The only other provider he saw, the records have been associated with the claims folder. Post-service, he was complained of knee pain in 2004 and was diagnosed with bilateral knee osteoarthritis by x-ray dated in 2005. An April 2007 magnetic resonance imaging (MRI) revealed bilateral tears of the lateral meniscus, moderate to severe osteoarthritis, and chondromalacia patellae. He underwent a right total knee arthroplasty in October 2010. The Veteran was provided VA examination in January 2010. The Veteran was diagnosed with bilateral degenerative arthritis. The examiner indicated in reviewing the claims file, there was "no evidence that the [V]eteran got help or sought help for bilateral knee pain while on active duty. There is evidence multiple times of knee pain that occurred while he was in the Reserves." In a March 2010 addendum opinion, the examiner stated the Veteran had no prior service injury to his knees, but rather the Veteran indicated he injured his knees in 1957 during a fall. The examiner further indicated that according to the Veteran his knee injury was a new condition and not an aggravation of an old knee condition. There examiner found no documentation of "this not being a prior service condition." Rather, the examiner found the history showed that the knee condition had its onset while on active duty. In June 2012, the Board found the Veteran's claims folder did not contain his active military service examination and therefore, he was presumed medically sound at the time of entry into active duty. The Board then determined that the 2010 examination was unclear as to whether the Veteran's knee disability was found to pre-exist service or was incurred during active duty and ordered a new examination. The Veteran was afforded a new VA examination in August 2012. The examiner found that the claimed condition (right total knee replacement and left knee osteoarthritis), "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." The examiner reasoned that Reserve report of medical histories dated in 1962 contained complaints of trick or locked knee and that the Veteran refused corrective surgery and it was recommended that he be discharged from service for pre-existing tear of the right meniscus and questionable tear of the left knee. The examiner then noted that the Veteran did not expect to get compensation because he was not seen following the basic training injury and the fact that he was told to say that he had pre-military injuries. In February 2013, the Board determined the 2012 VA examiner found the Veteran's knee disabilities pre-existed service and were not aggravated by his service citing to service treatment records demonstrating the Veteran had injured his knees when he was 17 and told to consider surgery. The Board then noted that one of the service treatment records the examiner cited to was not conducted on entrance examination when the Veteran was 17, as the examiner stated, but rather that the Veteran reported the injury occurred when he was 17 and the undated report showed he had already been in service for six years. For this reason, the 2012 VA examiner's rationale was considered less than reliable. The Board also found the examiner did not discuss Veteran's contentions that he injured his knees during a fall in basic training and whether the injury aggravated a "pre-existing" knee disability. A final examination was conducted in March 2013. The examiner opined the bilateral knee disability, "which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression." The examiner reasoned that the record did not report a fall on his knees during service, and there was no record to show how the fall affected function or structure of his knees. The examiner further noted the Veteran reported significant knee problems in the Reserves from 1962 to 1963 and the reported symptoms were diagnosed as meniscus problems. The examiner found the Veteran indicated there was a pre-service injury and he refused surgery before. The examiner stated the record shows the Veteran had no complaints on entry to the Air Force (which is not accurate as delineated at the outset). The examiner then found no specific report of ongoing activities during Reserves relating to new or aggravating injuries and that the severity of his symptoms was enough to prompt recommendation for discharge. The examiner found no evidence of treatment in 1957 or any clear description of any symptoms between 1957 and 1962 or related civilian or military medical record. It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing; the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, the Board is mindful that it cannot make its own independent medical determinations, and that it must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. When evaluating the ultimate merits of this claim, the Board first finds that a bilateral knee disability did not pre-exist the Veteran's active military service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. In this case, the Veteran's service treatment records from his active duty service between July1957 and December 1957, when he claims the initial injury occurred, are not available. In an October 1962 Army "enlistment" medical history, the Veteran complained of a trick or locked knee. In two undated report of medical histories (one entitled enlistment Army and the other Army-Air Force), the Veteran again indicated he had a trick or locked knee, but further reported at age 15 (one record) and age 17 (the other record) he was advised to have broken cartilage removed from his knee. Even assuming this was history on active duty entrance examination, which it was not as those records are unavailable, history provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3 2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; Id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 . By admission of the 2013 VA examiner, the undated medical histories found no evidence of bone issues or arthritis despite complaints of trick or locked knee. In the August 1963 orthopedic consult, the provider indicated the Veteran had a history of knee injury playing football prior to enlistment in service and was advised to have a meniscectomy, but he wanted to avoid surgery if possible. The examiner, in 1963, diagnosed the Veteran with tear of right lateral meniscus and questionable tear of left meniscus. The provider indicated the tears existed prior to service, without any objective evidence of such, and it was recommended he be discharged from service because he was unwilling to undergo corrective surgery. However, a presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. See Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted as in the instant case, since active duty records are not available, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. As the government has failed to rebut the presumption of soundness under section 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The Board finds that the evidence is in equipoise as to whether a bilateral knee disability was incurred during the Veteran' active military service. As noted above, the Veteran clearly reported knee problems during his Reserve service. He was diagnosed with a tear of the right meniscus and a questionable tear of the left meniscus. The Veteran claims the conditions are the result of injury in 1957 and have continued to the present day. Subsequent to service, he has been diagnosed with bilateral osteoarthritis, a chronic condition pursuant to 38 C.F.R. § 3.303, and bilateral tears of the meniscus, the same as in service. The VA opinions in 2012 and 2013 that the condition pre-existed service and were not aggravated therein, are not probative of the matters on appeal as the Board has found that the presumption of soundness has not been rebutted by clear and unmistakable evidence. In the March 2010 VA addendum opinion, the examiner indicated the history showed that the knee condition had its onset while on active duty. There is no opposing objective evidence of record and the March 2010 addendum opinion cited a rationale, albeit not entirely clear, for his opinion, i.e. the Veteran denied any injury prior to service, the condition according to the Veteran was not an aggravation of an old condition, and there was no documentation of the knee condition not being a prior service condition. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010) (providing that the Board may accept an inconclusive VA medical report if it is "clear, from either the examiner's statements or the Board decision, that the examiner has indeed considered 'all procurable and assembled data,' by obtaining all tests and records that might reasonably illuminate the medical analysis," but that the examiner must explain what facts cannot be determined and why) (citation omitted). See also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). The Board has no reason to doubt the Veteran's veracity as to the onset of his knee disability. The Board finds the Veteran's complaints of knee problems since the in-service injury credible in light of the evidence showing the same conditions both during Reserve service and after his discharge. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Service connection for a bilateral knee disability is warranted. ORDER Entitlement to service connection for bilateral knee disability of meniscus tears and arthritis is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs