Citation Nr: 1324956 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-11 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for bilateral knee disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from February 1973 to February 1975 and from December 2003 to April 2005. He had additional periods of active and inactive duty for training, including a period of active duty for training from March 2, 2001 to March 18, 2001. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. This appeal was previously remanded by the Board in July 2010 and October 2012 for additional evidentiary development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. FINDING OF FACT The Veteran's preexisting bilateral knee disability was permanently aggravated beyond the normal progression during the Veteran's active service. CONCLUSION OF LAW A bilateral knee disability was aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist VA has specified duties to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. The Board has considered whether further development and notice under the Veterans Claims Assistance Act of 2000 (VCAA) or other law should be undertaken. However, given the results favorable to the appellant, further development under the VCAA or other law would not result in a more favorable outcome or be of assistance to this inquiry. In the decision below, the Board grants the claim of service connection for a bilateral knee disability. The RO will be responsible for addressing any notice defect with respect to the rating and effective date elements when effectuating the award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). No further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay 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); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (2011). Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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. 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. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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.A. § 1153; 38 C.F.R. § 3.306(a). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat Veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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 C.F.R. § 3.306(b). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Analysis The Veteran contends that service connection is warranted because his bilateral knee disorder was aggravated during his most recent period of active service. The Board notes at the outset that no records are apparently available from the Veteran's first period of service from 1973 to 1975. A December 2004 Statement of Medical Examination and Duty Status indicates that the Veteran had an insidious exacerbation of bilateral knee pain while in Kuwait in March 2004 which was deemed a permanent partial disability. The Veteran's commander indicated that the injury was in the line of duty. Various treatment records indicate treatment for the Veteran's knees from March 2004. A January 2005 treatment record indicates that the Veteran was receiving interarticular injections for his knees. In March 2005, the Veteran was placed on permanent profile for his bilateral knee osteoarthritis. The Veteran was afforded a June 2005 VA joints examination; however, there is no medical opinion concerning the etiology of the Veteran's knee disabilities. The examiner did note that the Veteran had acute bilateral knee pain on a daily basis for the prior year. A statement from a private physician, Dr. L.V., dated February 2006, suggests that bilateral knee arthritis with chondromalacia patella was aggravated during service. In March 2011, the Veteran was afforded a VA examination pursuant to a Board remand. The VA examiner noted that, while there is a history of left knee fracture in 1973, the bilateral knee condition, which was documented by x-ray and examination in July 1991, is of degenerative origin and did not have its onset in service. However, the examiner also noted that there is evidence showing that the condition was exacerbated in 2004 and that running exercise was to be avoided thereafter. The Board again remanded for a VA examination with an opinion concerning aggravation. In March 2011, the examiner detailed the Veteran's symptomatology and provided results from an October 2009 MRI report to detail the Veteran's objective signs of disability. In the left knee, the MRI revealed significant tricompartmental osteoarthritis, a meniscal laceration with associated high grade chondromalacia, a degenerative tear at the posterior horn lateral meniscal root, and a loose body. In the right knee, the Veteran had osteoarthritis secondary to an ACL deficient knee, severe arthritic changes associated with high grade chondromalacia and extensive meniscal tearing, loose bodies and joint effusion. The examiner indicated that it is at least as likely as not that the Veteran's bilateral knee disability onset during active service; however, it is also noted at least as likely as not that the disability increased in severity during active service. The rationale was that, most importantly, the bilateral knee condition documented by an x-ray dated July 1991 was exacerbated in December 2004 when the Veteran was fixing some equipment. A December 2012 additional medical opinion, provided by the March 2011 examiner, reiterated that it is at least as likely as not that the existing knee disability was aggravated during a period of active service. His rationale was the Veteran's previous functioning; the Veteran was able to do low impact/loading exercise but he was recommended not to run. The examiner also indicated that the Veteran further exacerbated his knee pain while kneeling. The Board observes that the Veteran's knee disabilities were documented in July 1991 by objective evidence. There is extensive medical evidence of treatment for the Veteran's knees during his most recent period of active service from 2003 to 2005. Additionally, VA examiners have indicated repeatedly that the Veteran's pre-existing bilateral knee disability was aggravated during active service. Thus, the Board finds that the competent and probative medical evidence of record demonstrates that the Veteran had a preexisting bilateral knee disability which was aggravated by active service. The Board additionally notes that there are no findings or medical opinions against a conclusion that the Veteran's preexisting bilateral knee disabilities were aggravated by active service. Service connection for a bilateral knee disability based on aggravation is warranted. ORDER Service connection for a bilateral knee disability is granted. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs