Citation Nr: 1328498	
Decision Date: 09/06/13    Archive Date: 09/16/13

DOCKET NO.  12-09 346	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to service connection for left knee condition.


ATTORNEY FOR THE BOARD

Brian E. Flannery, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1976 to August 
1977.

This matter is before the Board of Veterans' Appeals (Board) 
on appeal from a January 2011 rating decision of the 
Houston, Texas, Department of Veterans Affairs (VA) Regional 
Office (RO), which denied the benefits sought on appeal.



FINDINGS OF FACT

1.	 The Veteran's enlistment physical establishes that he 
had suffered a severe left knee burn prior to enlistment, 
which was noted on his enlistment physical and which 
constitutes a pre-existing left knee disability.


2.   The weight of the evidence is against a finding that 
the Veteran's pre-existing left knee disability was 
aggravated during service beyond the natural progression of 
the condition.  

3.  The weight of the evidence is against a finding that any 
other left knee disability was caused or aggravated by the 
Veteran's active service.


CONCLUSIONS OF LAW

1.  The Veteran is not entitled to the presumption of 
soundness. 38 U.S.C.A. §§ 1111, 1137(West 2002); 38 C.F.R. § 
3.304(b) (2012);

2.  The criteria for service connection for a left knee 
disability have not been met.  38 U.S.C.A. §§ 1110, 1111, 
1153 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (b), 3.306(a) 
(2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Procedural Duties under Veterans Claims Assistance Act 
of 2000 (VCAA)

A.  Duty to Notify  

VA satisfied its duty to notify the Veteran pursuant to the 
VCAA.  See 38 U.S.C.A. § 5100, 5102-5103A, 5106, 5107, 5126 
(West 2002 & Supp. 2012), 38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); Honoring 
America's Veterans and Caring for Camp Lejeune Families Act 
of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 
1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) 
(2012).  The VCAA requires VA to assist a claimant at the 
time that he or she files a claim for benefits.  As part of 
this assistance, VA is required to notify claimants of the 
evidence that is necessary, or would be of assistance, in 
substantiating their claims, and provide notice that a 
disability rating and an effective date for the award of 
benefits will be assigned if service connection is awarded.  
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio 
v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. 
Nicholson, 19 Vet. App. 473, 486 (2006). 

The notice required by the VCAA can be divided into three 
elements.  Specifically, VA must inform the claimant of any 
information and evidence not of record (1) that is necessary 
to substantiate the claim; (2) that the claimant is to 
provide; and (3) that VA will attempt to obtain.  Beverly v. 
Nicholson, 19 Vet. App. 394, 403  (2005) (outlining VCAA 
notice requirements).  Notice should be provided to a 
claimant before the initial unfavorable Agency of Original 
Jurisdiction (AOJ) decision on a claim.  38 C.F.R. § 
3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120   
(2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 
110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 
2006).  

In the instant case, a letter was sent to the Veteran in 
July 2010 prior to the initial adjudication of his claim.  
The content of the notice letter fully complies with the 
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 
3.159(b) regarding VA's duty to notify.  The Veteran was 
notified of the evidence not of record that was necessary to 
substantiate the claim, and was told that he needed to 
provide the names of the persons, agency, or company who had 
additional records to help decide his claim.  He was also 
informed that VA would attempt to determine what additional 
information was needed to process his claim, and that VA 
would schedule a VA examination if appropriate, obtain VA 
medical records, obtain service records, and obtain private 
treatment reports as indicated.  As the content of the 
notice letter fully complies with the requirements of 38 
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), the Board 
concludes that VA satisfied its duties to notify the 
Veteran.  

B.  Duty to Assist

VA has also satisfied its duty to assist the Veteran in the 
development of his claim.  

First, VA satisfied its duty to seek relevant records.  VA's 
duty to assist includes assisting the claimant in the 
procurement of service and other relevant records.  
38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The RO associated 
the Veteran's service treatment records and VA treatment 
records with the claims file.  Significantly, the Veteran 
has not identified any pertinent treatment records aside 
from those that are already of record.  Thus, the Board 
concludes that VA has made every reasonable effort to obtain 
all records relevant to the Veteran's claim.  

Second, VA satisfied its duty obtain a medical opinion when 
required.  The duty to assist also includes providing an 
examination when the record contains competent evidence that 
the claimant has a current disability or signs and symptoms 
of a current disability, the record indicates that the 
disability or signs and symptoms of disability may be 
associated with active service; and the record does not 
contain sufficient information to make a decision on the 
claim.  38 U.S.C.A. § 5103A(d)  (West 2002); McLendon v. 
Nicholson, 20 Vet. App. 79, 83 (2006).  The evidence of a 
link between current disability and service must be 
competent.  Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 
2003).

The types of evidence that 'indicate' that a current 
disability 'may be associated' with military service 
include, but are not limited to, medical evidence that 
suggests a nexus but is too equivocal or lacking in 
specificity to support a decision on the merits, or credible 
evidence of continuity of symptomatology such as pain or 
other symptoms capable of lay observation.  McLendon, 20 
Vet. App. at 83.  The threshold for finding a link between 
current disability and service is low.  Id.; Locklear v. 
Nicholson, 20 Vet. App. 410 (2006).

In November 2010, VA provided the Veteran a medical 
examination and obtained a medical opinion addressing 
specifically the Veteran's knee condition and its etiology.  
The examination and opinion are adequate as the examination 
report shows that the examiner considered the relevant 
history of the Veteran's claimed knee condition, provided a 
sufficiently detailed description of the disability, and 
provided an analysis to support the opinion.  See Stefl v. 
Nicholson, 21 Vet. App. 120, 123-24 (2007); Barr v. 
Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that 
once VA undertakes the effort to provide an examination when 
developing a claim, even if not statutorily obligated to do 
so, VA must ensure that the examination provided is 
adequate).

Moreover, while mindful that the Veteran is entitled to a 
Board hearing in support of his claim, the Board observes 
that he has expressly waived his right to such a proceeding.  
See VA Form 9, March 2012.   Accordingly, the Board is 
satisfied that the Veteran's due process rights have not 
been compromised.

Having thus established that VA has satisfied its duties to 
notify and assist the Veteran, the Board finds that there is 
no further action to be undertaken to comply with the 
provisions of 38 U.S.C.A. §5103(a), § 5103A , or 38 C.F.R. § 
3.159, and that the Veteran will not be prejudiced as a 
result of the adjudication of his claim.  

II.  Merits of the Claim  

The Veteran claims he suffered a knee injury to his left 
knee while in service.  As discussed in further detail below 
the record shows that the Veteran's left knee condition 
preexisted service and was not aggravated during service 
beyond the natural progression of the condition.

Relevant Facts

As a child, the Veteran severely burned his left knee.  In 
June 1976, at the time of the Veteran's entrance 
examination, the physician noted a burnt leg, and again, in 
the notes section, indicated a left leg burn at 5 years old.  
On the Report of Medical Examination the physician drew the 
location of the burn on the left knee of a picture of the 
human body.  The Veteran was then accepted into military 
service.  

Exactly four days after the Veteran entered service, he went 
to "Recruit Sick Call" complaining of left knee pain.  The 
clinician noted the burn scar and the records further show 
that the Veteran had a history of knee pain due to his 
severe burns.

The Veteran did continue to report left knee problems.  The 
clinicians would typically note a preservice skin graft of 
the burn, a full range of motion, no swelling, and put the 
Veteran on light duty.  In February 1977 the clinicians were 
reporting impressions of chondromalacia.  Eventually the 
Veteran was referred to an orthopedic specialist who in 
April 1977 indicated that the condition was more than 
chondromalacia and recommended a change of MOS.  

In June 1977, as part of the Report of Medical Board, an 
orthopedic physician found the burn scar on the Veteran's 
anterior left knee was in good condition.  The Veteran had 
no effusion or ligamentous laxity.  He had pain along his 
medial joint line, he had moderate quadriceps atrophy, and 
was able to only lift 11 pounds with progressive resistance 
exercises.  The Veteran was found unfit for duty by virtue 
of a condition which existed prior to entry of service and 
was not incurred nor aggravated by his service.  

The Veteran signed a statement acknowledging the Medical 
Board's findings of left quadriceps weakness which 
preexisted service and was not aggravated by service.  The 
Veteran waived a hearing before a Physical Evaluation Board 
and acknowledged that he would not be receiving disability 
compensation.  The Veteran was then medically discharged 
less than one year after service.

In June 2010 the Veteran filed his claim for chondromalacia 
in his left knee.  In November 2010 the VA provided the 
Veteran with a medical examination.  The VA Examiner did 
review the claims file and examine the Veteran's left knee.  
The VA Examiner noted the extensive burn in the left knee 
and noted the history and current condition of the knee.  
Although the Veteran reported that he never had surgery on 
his left leg, the x-rays showed the Veteran had a rod placed 
in his leg after breaking his left femur.  The VA Examiner 
determined that his fractured femur was post service.

The VA examiner found that the claimed chondromalacia in the 
left knee is no longer existent.  The VA examiner found that 
the left knee condition is less likely as not related to 
military service.  The Veteran had some trauma to this left 
knee which seems after military service.  There is no 
evidence the left knee was aggravated by the military 
experience beyond the natural progression.  No evidence of 
contracture of the burn skin affecting his knee and be 
aggravated by the exercises.  He had quadriceps weakness 
which is consistent with the preservice burn injury. 

Analysis

The Veteran argues that he should be service connected for 
his left knee condition.  He reasons that he entered service 
and completed boot camp and was later medically discharged, 
therefore he must have reinjured his knee while in service.

Service connection may be granted for a disability resulting 
from a disease or injury incurred in or aggravated by active 
service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  To 
establish entitlement to service-connected compensation 
benefits, a Veteran must show:  "(1) the existence of a 
present disability; (2) in-service incurrence or aggravation 
of a disease or injury; and (3) a causal relationship 
between the present disability and the disease or injury 
incurred or aggravated during service-the so-called "nexus" 
requirement."  Shedden v. Principi, 381 F.3d 1163, 1167 
(Fed. Cir. 2004).

The November 2010 VA examiner found that the claimed 
chondromalacia in the Veteran's left knee is no longer 
existent which is supported by the April 1977 Orthopedic 
consultation.  Therefore there is no present chondromalacia 
for the purposes of satisfying the first Shedden element.

However, in an effort to construe the Veteran's claim in a 
liberal manner the Board will discuss the Veteran's burn 
scar and how it affects his entire left knee condition.

A veteran who served during a period of war is presumed to 
be in sound condition when enrolled for service, except for 
any defects, infirmities, or disorders noted at the time of 
examination, acceptance and enrollment. 38 U.S.C.A. § 1111.  
Only such conditions as are recorded in examination reports 
are to be considered as "noted." 38 C.F.R. § 3.304(b).  A 
veteran's reported history of the pre-service existence of a 
disease or injury does not constitute notation of such 
disease or injury, but is considered with all other evidence 
in determining if the disease or injury preexisted service.  
See Paulson v. Brown, 7 Vet. App. 466, 470  (1995).

As mentioned above the Veteran's service treatment records 
include entrance examination paperwork where the physician 
noted a burnt leg, and again, in the notes section, 
indicated a left leg burn at 5 years old.  On the Report of 
Medical Examination the physician drew the location of the 
burn on the left knee of a picture of the human body.  These 
notes go beyond the Veteran simply checking a box on a form.  
They show that the physician examined the Veteran's knee and 
noted the condition at the time of examination.  The rest of 
the service treatment records further confirm that the 
Veteran's left knee condition was incurred prior to service.  
This satisfies the requirements for notation under 38 C.F.R. 
§3.304(b).  Therefore the Board finds that the condition of 
the left knee was preexisting and noted at the time of 
examination, acceptance and enrollment.  See 38 U.S.C.A. § 
1111; 38 C.F.R. § 3.304(b).

Once it is shown that the Veteran's condition was noted at 
the time of examination, acceptance, and enrollment, the 
presumption of soundness does not apply.  Rather 38 U.S.C.A. 
§ 1153 and its implementing regulation, 38 C.F.R. § 3.306, 
govern the procedures for service aggravation.  See Wagner 
v. Principi, 370 F.3d 1089, 1096 ("[I]f a preexisting 
disorder is noted upon entry into service . . . the veteran 
may bring a claim for service-connected aggravation of that 
disorder.   In that case section 1153 applies and the burden 
falls on the veteran to establish aggravation.  (emphasis 
added)).   Horn v. Shinseki, 25 Vet. App. 231, 238 (2012).  
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.  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). Under section 1153, however, the appellant bears 
the burden of initially showing that his preexisting 
condition worsened in service.  Horn v. Shinseki, 25 Vet. 
App. 231, 238 (2012).

Section 1153 requires some increase in the severity of the 
preexisting condition causally related to military service. 
Jensen v. Brown, 19 F.3d 1413, 1417  (Fed. Cir. 1994).  
Independent medical evidence is needed to support a finding 
that the preexisting disorder increased in severity in 
service.  See Paulson v. Brown, 7 Vet. App. 466, 470-71 
(1995);  Crowe v. Brown, 7 Vet. App. 238, 246  (1994).  In 
cases involving aggravation by active service, the rating 
will reflect only the degree of disability over and above 
the degree existing at the time of entrance into the active 
service.  38 C.F.R. § 4.22.

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").  Lay testimony is competent when it 
regards the readily observable features or symptoms of 
injury or illness and "may provide sufficient support for a 
claim of service connection." See Layno, 6 Vet. App. at 469; 
38 C.F.R. § 3.159(a)(2).  
 
When all the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with a veteran prevailing in either 
event, or whether a preponderance of the evidence is against 
a claim, in which case, the claim is denied.  38 U.S.C.A. § 
5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's 
claim file.  Although the Board has an obligation to provide 
adequate reasons and bases supporting this decision, there 
is no requirement that the evidence submitted by a veteran 
or obtained on his behalf be discussed in detail.  Rather, 
the Board's analysis below will focus specifically on what 
evidence is needed to substantiate the claim and what the 
evidence in the claims file shows, or fails to show, with 
respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 
122, 128-30  (2000).

Turning to the Veteran's Service Treatment Records, the 
Board notes that within a very short time of entering 
service (four days) the Veteran went to "Recruit Sick Call" 
complaining of left knee pain.  The clinician noted the burn 
scar, and the records further show, that the Veteran had a 
history of knee pain due to his severe burns.

The Veteran did continue to report left knee problems.  The 
clinicians would typically note a skin graft of the burn 
from prior to service, a full range of motion, no swelling, 
a history of pain from prior to service, and put the Veteran 
on light duty.  In February 1977 the physicians were 
reporting impressions of chondromalacia.  Eventually the 
Veteran was referred to an orthopedic who indicated that the 
condition was more than chondromalacia and recommended a 
change of MOS.  

The Service Treatment Records do not indicate that there was 
any worsening of the Veteran's burn scar over the Veteran's 
knee or that his quadriceps weakened in any way during 
service.  The Report of Medical Board found the burn scar on 
the veteran's anterior left knee was in good condition.  The 
Veteran has no effusion or ligamentous laxity.  He had pain 
along his medial joint line, he had moderate quadriceps 
atrophy, and was able to only lift 11 pounds with 
progressive resistance exercises.  

The medical evidence from the Report of Medical Board shows 
the Veteran's knee was a condition which existed prior to 
entry of service and was not incurred nor aggravated by his 
service.  

The Board further notes that as part of his Medical Board, 
the Veteran signed a statement acknowledging that he was 
being discharged from service for the condition of left 
quadriceps weakness which preexisted service and was not 
aggravated by service.  The Veteran waived a pre-discharge 
hearing, acknowledged that his condition predated service, 
and understood that he would not be receiving disability 
compensation.  

Finally the Board notes the November 2010 VA Examination.  
The VA examiner found that the claimed chondromalacia in the 
left knee is no longer existent.  The VA examiner found that 
the left knee condition is less likely as not related to 
military service.  The Veteran had some trauma to this left 
knee which seems after military service.  There is no 
evidence the left knee was aggravated by the military 
experience beyond the natural progression.  No evidence of 
contracture of the burn skin affecting his knee and be 
aggravated by the exercises.  He had quadriceps weakness 
which is consistent with burn injury.

A medical opinion is adequate when it is based on 
consideration of the veteran's prior medical history and 
examinations, and the final report describes the disability 
in sufficient detail so that the Board's " 'evaluation of 
the claimed disability will be a fully informed one.' " 
Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green 
v. Derwinski, 1 Vet.App. 121, 124 (1991)).  Any opinion 
"must support its conclusions with an analysis that the 
Board can consider and weigh against contrary opinions" and 
must "provide sufficient detail for the Board to make a 
fully informed evaluation of whether direct service 
connection is warranted."  Stefl v. Nicholson, 21 Vet.App. 
120, 124 (2007); see Hicks v. Brown, 8 Vet.App. 417, 421 
(1995) (inadequate evaluation frustrates judicial review).

Here, the Board finds that the November 2010 VA examination 
report is adequate for rating purposes as it was based on a 
complete medical examination of the Veteran's left knee and 
expressly for the purpose of determining the etiology.  The 
VA Examiner did review the claims file and examine the 
Veteran's left knee.  The VA Examiner noted the extensive 
burn in the left knee and noted the history and current 
condition of the knee.  Although the Veteran reported that 
he never had surgery on his left leg, the x-rays showed the 
Veteran had a rod placed in his leg after breaking his left 
femur.  The VA Examiner determined that his fractured femur 
was post service.

The Board further notes that the VA Examiner's negative 
findings of chondromalacia, and that the burn scar, and the 
resulting quadriceps weakness, all occurred prior to service 
and were not aggravated by service are consistent with the 
results of the medical examinations from the time the 
Veteran was in service and is consistent with  all of the 
medical evidence in the claims file resulting in greater 
credibility.  Accordingly, the Board finds that this 
examination is sufficient for a fully informed determination 
and that the VA examiner is competent and her opinion is 
afforded high probative weight.  See Stefl v. Nicholson, 21 
Vet.App. 120, 124 (2007)(finding that an examination report 
is adequate where it describes the disability in sufficient 
detail so the Board can make a fully informed evaluation of 
the disability); see also Nieves-Rodriguez v. Peake, 22 Vet. 
App. 295, 302-03 (2008) (applying the Federal Rules of 
Evidence to find that the threshold inquiry in evaluating 
the probative value of a medical opinion is whether the 
examiner has sufficient facts and data upon which to base an 
opinion).

The Veteran does argue that he successfully joined the 
service and was medically discharged, therefore his 
condition must have been aggravated.  The service treatment 
records do indicate that the Veteran did experience pain in 
his left knee.  

Temporary or intermittent flare-ups during service of a 
preexisting injury or disease are not sufficient to be 
considered "aggravation in service" unless the underlying 
condition, as contrasted to symptoms, is worsened.   Hunt v. 
Derwinski, 1 Vet. App. 292, 297 (1991).  "Accordingly, 
section 1153 requires an increase in the severity of the 
preexisting condition, as distinguished from the mere 
recurrence of manifestations of the pre-service condition.  
Evidence of a temporary flare-up, without more, does not 
satisfy the level of proof required of a non-combat veteran 
to establish an increase in disability."  Davis v. Principi, 
276 F.3d 1341, 1345 (Fed. Cir. 2002).

The Board certainly empathizes with the Veteran and believes 
that he did experience additional left knee pain while in 
service.  This would certainly be consistent with the 
increased demands of military life on the Veteran's knee.  
However, even considering extra pain felt from the knee 
there is no evidence the Veteran's underlying condition such 
as his burn scar, knee condition, or resulting quadriceps 
weakness permanently worsened while in service.  Rather, the 
evidence of record weighs heavily on the fact that his 
underlying condition did not get permanently worse in 
service so as to meet the criteria for in-service 
aggravation contemplated in 38 U.S.C.A. § 1153 and Horn, 
supra.  Indeed, the record reflects that the Veteran's 
symptoms in service were tantamount to "temporary or 
intermittent flare-ups" and, thus, insufficient to be 
considered "aggravation in service."  Hunt, 1 Vet. App. at 
297.

The Board therefore finds by the preponderance of the 
evidence that the Veteran's left knee condition preexisted 
service and was not aggravated by service.  As a result, 
service connection for the Veteran's left knee is not 
available. 


ORDER

Service connection for left knee condition is denied.



____________________________________________
Cheryl L. Mason
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs