Citation Nr: 1333488 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-27 705 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a compensable initial rating for left foot strain with hammer toe of the left second toe. 2. Entitlement to service connection for degenerative disc disease of the lumbar spine. 3. Entitlement to service connection for osteroarthritis of the knees. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Appellant had active service from July 2006 to July 2007 in addition to service in the Navy Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho, which denied service connection for low back and knee disorders, but granted service connection for hammer toe of the left foot and assigned an initial noncompensable (zero percent) rating. The Board has considered review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal. FINDINGS OF FACT 1. Throughout the entire initial rating period, left foot strain has been productive of unilateral Morton's disease. 2. Degenerative disc disease of the lumbar spine clearly and unmistakably preexisted active service and was permanently aggravated during active service. 3. Bilateral osteoarthritis of the knees clearly and unmistakably preexisted active service and was permanently aggravated during active service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Appellant's favor, the criteria for an initial rating of 10 percent for left foot strain have been more nearly approximated throughout the initial rating period in appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.71a, Diagnostic Code 5279 (2013). 2. The criteria for service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C.A. §§ 1101, 1110, 111, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b), 3.306, 3.307, 3.309 (2013). 3. The criteria for service connection for bilateral osteoarthritis of the knees have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b), 3.306, 3.307, 3.309, 3.310(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). VCAA notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO provided a VCAA notice letter to the Appellant in August 2008, prior to the initial adjudication of the claims currently on appeal. The letter notified the Appellant of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Appellant and what information and evidence would be obtained by VA. The Appellant was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Appellant's claim for a compensable initial rating arises from an appeal of the initial evaluation following the grant of service connection for left foot hammer toe. Once service connection is granted the claim is substantiated, additional notice is not required. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice upon receipt of a notice of disagreement); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims). Based on the foregoing, timely and adequate notice was provided to the Appellant prior to the transfer and certification of this case to the Board and complied with the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). In this case, service records have been obtained, as have records of private and VA treatment. These pertinent records have been associated with the Appellant's claims file and reviewed in consideration of the issues before the Board. The Appellant was afforded a VA examination with respect to all claimed disorders in November 2008, during which the examiner conducted a physical examination of the Appellant, was provided the claims file for review, reviewed the Appellant's history, considered the lay evidence presented, laid a factual foundation for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). All necessary development has been accomplished. In addition to the evidence discussed above, the Appellant's statements in support of the claims are also of record. The Board has carefully considered such statements and concludes that no available outstanding evidence has been identified. Additionally, the Board has reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Appellant's claims. The duties to notify and assist the Appellant in the development of this/these claims have been met, and no further notice or assistance to the Appellant is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Moreover, the Board is granting the benefits sought and VA has no further duty to notify or assist with regard to these matters. Initial Rating for Left Foot Strain with Hammer Toe of the Left Second Toe Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). The appeal for a higher initial rating for his service-connected left foot disability is from the initial assignment of a disability rating in August 2008. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Such separate disability ratings are known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (noting that staged ratings are assigned at the time an initial disability rating is assigned). Here, as the evidence discussed below shows, the disability has not significantly changed and a uniform evaluation is warranted. In the August 2008 decision on appeal, the Appellant was awarded service connection for left foot strain with hammer toe of the left second toe, and granted an initial noncompensable evaluation effective July 31, 2008. The Appellant's disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5282 (2013). Under this Code, ratings are based on hammer toes and where hammer toe is of a single toe, a noncompensable rating is warranted. Unilateral hammer toe of all toes, without claw foot, is rated 10 percent disabling. 38 C.F.R. § 4.71a. On VA examination in November 2008, the Appellant endorsed pain in the left foot, particularly when standing, climbing a ladder or walking. Pain tended to occur daily at a level of four out of ten, but did not flare beyond that point. The Appellant had no incapacitating episodes associated with the foot, and he was able to wear a variety of footwear without orthotics. The examiner commented that the Appellant experienced no limitations regarding his usual work. Physical examination revealed tenderness over the second metatarsophalangeal joint on the left foot. The toe tended to be deviated to the right side and over the top of the big toe. There was no tenderness of the arches, Achilles tendon angle was maintained, and there were no other signs of abnormal weightbearing. X-ray imaging was ordered and following review the examiner opined that the Appellant had mild bilateral hindfoot valgus, Morton's foot deformity of the left foot, and hammertoe deformity of the left second toe. The examiner opined that "symptoms in the left foot are at least as likely as not secondary" to the Appellant's active duty. During an October 2010 hearing before a decision review officer at the RO in Boise, the Appellant endorsed pain with repeated movement and a loss of dexterity of the left foot toes. He also said that pain in the left foot prevented him from some daily activities including depressing the clutch pedal when driving. The Appellant is competent to report many of the symptoms and impairments associated with his service-connected left foot disorder including symptoms which are observable such as pain and physical deformity of the toes. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted any lay evidence regarding the severity of the Appellant's left foot disability merely because it is lay evidence or because it was reported by the Appellant. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Appellant contends that his left foot disability has been compensably disabling, and he has endorsed pain, a misshapen second toe and loss of dexterity of the toes. To the extent that these are observable symptoms, the Appellant's endorsements are competent. Davidson, 581 F.3d 1313; Jandreau, 492 F.3d 1372. After reviewing all the evidence, lay and medical, the Board finds that for the entire initial appeal period, the Appellant's service-connected left foot disability has been 10 percent disabling, but no greater. When limited to considering the Appellant's single left hammer toe, application of DC 5282 clearly would result in a noncompensable rating. See 38 C.F.R. §4.71a, DC 5282. However, the Board has also considered other potentially applicable Codes for the foot, under which a compensable rating may be assigned. During his 2008 VA examination, in addition to left foot hammer toe, the Appellant's left foot was diagnosed with mild bilateral hindfoot valgus and Morton's foot deformity. A review of the diagnostic criteria in 38 C.F.R. § 4.71a reveals that DC 5279 provides a 10 percent rating for anterior metatarsalgia (or, Morton's disease), whether unilateral or bilateral. Additionally, DC 5280 provides ratings for unilateral hallux valgus, however only when severe, if equivalent to amputation of great toe, or where unilateral hallux valgus that has been operated upon with resection of metatarsal head. 38 C.F.R. § 4.71a. In this case the Appellant's valgus is not post-operative nor is it severe. However, the VA examiner stated that all left foot symptomatology is secondary to service. Thus, the Board finds that because it provides the Appellant with a compensable evaluation, the most appropriate Code under which to rate the Appellant's left foot disability is DC 5279. The Board has considered all potentially applicable Codes, however the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Accordingly, in order to avoid prohibited pyramiding, a separate rating for the left foot is not warranted. Thus, resolving reasonable doubt in the Appellant's favor the Board concludes that the Appellant's left foot disability has been 10 percent disabling throughout the entire initial rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected left foot disability. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Appellant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Appellant's disability level and symptomatology, then the Appellant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here the schedular rating criteria used to rate the Appellant's service-connected disability above, reasonably describe and assess the Appellant's disability level and symptomatology. The criteria rate the disability on the basis of severity to include as due to pain and limitation of function; thus, the demonstrated manifestations - namely pain and limitation of dexterity - are contemplated by the provisions of the rating schedule. As the Appellant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate. Furthermore the schedular rating criteria also include analogous symptoms that are "like or similar to" listed schedular rating criteria. Mauerhan, 16 Vet. App at 442 ; see also 38 C.F.R. § 4.21 (2013). For these reasons, the Board finds that the schedular rating criteria is adequate to rate the Appellant's service-connected left foot disability, and referral for consideration of an extra-schedular evaluation is not warranted. Finally, the most recent VA examiner assessed that the Appellant's disabilities had no effect on his usual employment and the Appellant has not raised the issue of unemployability due to service connected disability. Consequently, the matter of entitlement to a total disability rating based on individual unemployability is not raised by the Appellant or the evidence of record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Service Connection, Generally Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The term "active military, naval, or air service" includes active duty, any reserve service periods of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of or inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. §§ 101(22), 101(24) (West 2002); 38 C.F.R. § 3.6 (2013). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. Arthritis, for which the Appellant is seeking service connection referable to the back and knees, is a "chronic disease" which is listed under 38 C.F.R. § 3.309(a); therefore the presumptive provisions of 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. In order to show a "chronic" disease in service, the record must reflect a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Where a chronic disease has been incurred in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required in order to establish entitlement to service connection. 38 C.F.R. § 3.303(b). Presumptive periods do not apply to reserve service periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the Appellant's periods of ACDUTRA and INACDUTRA is not appropriate. Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, including arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from 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 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. With regard to any periods of ACDUTRA or INACDUTRA, the record reflects that the Appellant had nearly 20 years of service as a member of the Navy Reserve, yet specific dates for periods of ACDUTRA and INACDUTRA have not been identified by the Appellant or by VA in its development of the claim. Nonetheless, the Appellant's claims are predicated on either active-duty incurrence or aggravation of a preexisting disorder during his period of active duty from July 2006 to July 2007. Thus the matters before the Board may be properly adjudicated without confirmation of the Appellant's periods of ACDUTRA and INACDUTRA. Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Court has held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Court has also stated, "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Degenerative Disc Disease of the Lumbar Spine The Appellant contends that low back pain began on active duty service and became worse during his deployment to Iraq. Service treatment records indicate that on reserve retention examination in March 2005, approximately one year prior to active duty, the Appellant denied any current or past history of arthritis, rheumatism, or bursitis as well as recurrent back pain, or any back problem. A physical examination revealed that the spine was normal. On pre-deployment health assessment in June 2006, one month before entering active duty, the Appellant described his health as "very good," and he denied any medical problems. On post-deployment health assessment in March 2007, the Appellant endorsed back pain, swollen, stiff or painful joints, and numbness or tingling in the hands or feet as having onset during his deployment to Iraq. A notation indicated, however that the Appellant's low back pain was "resolving." Radiographic imaging in March 2007 revealed chronic bilateral L5 spondylolysis with associated grade 1 spondylolisthesis at the L5-S1 level. Mild retrolisthesis of L4 on L5 was also noted. In a followup medical assessment in April 2007, the Appellant again endorsed low back symptomatology. Pain was described as periodic, with radiation to the left leg and numbness in the foot. In May 2007 the Appellant reported chronic low back pain exacerbated at the beginning of the year while on deployment. The pain was mostly in the lumbosacral region, but was soon accompanied by left lower extremity paresthesias. Low back pain was frequent but still intermittent, and related to activity. The Appellant had no neurologic deficits into the lower extremities. Following separation from active duty in July 2007, the Appellant reported for a VA examination in November 2008 and the Appellant told the examiner that he had been deployed within a Construction Battalion and was involved in construction activities which required a great deal of stooping and lifting moderately heavy objects. Additionally, the Appellant stated that he wore heavy body armor and was "bumped a lot" when riding in trucks during his Iraq deployment. The Appellant indicated that he had not had any pain on entering active duty in July 2006, but pain began around November or December 2006. Since discharge the Appellant reported that pain had occurred on a daily basis, and if he stood for longer than 10 to 15 minutes he developed pain at a level of 6 to 7 out of 10. The VA examiner reviewed reports of spinal imaging from March 2007 and noted that spondylolysis and spondylolisthesis are "very chronic and in fact are developmental." The Appellant's degenerative disc disease was also described as long standing and "clearly was present prior to the [V]eteran entering active duty." The examiner opined that the magnitude of changes seen on imaging could not have developed solely after the Appellant was on active duty for a period of seven months. The examiner concluded that the Appellant's degenerative disc disease was "symptomatically exacerbated" as a result of active duty, and thus the Appellant's low back pain is related to service. However, the examiner also concluded that the disorder was not permanently aggravated during service. A November 2011 letter from a private physician indicated that the Appellant reported having had occasional back pain prior to deployment. The private physician recounted the Appellant's history of back symptomatology, including the post-deployment imaging study. He stated that it was "apparent" that the Appellant's low back problem preexisted service, but that such problems significantly worsened during the Appellant's deployment, and specifically that carrying the extra weight of body armor more likely than not had a permanent effect on the low back. During his October 2010 hearing before a decision review officer, the Appellant indicated that prior to deployment he was not experiencing back pain, although he did wear heavy armor during pre-deployment training and while in Iraq. He also stated that once in Iraq, he spent time in vehicles riding over rough terrain and poorly maintained roads. He noted that back pain began about three months in to his deployment and had been present ever since. A veteran is presumed to have entered active service in sound condition with respect to his or her health except as to defects, infirmities, or disorders "noted" on service entrance. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). Where no defect, infirmity, or disorder was noted on service entrance, the burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). 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. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). The Board finds that there is clear and unmistakable evidence that the Appellant's low back disorder preexisted his period of active duty. The record does not include an examination at the time of induction into active service and no defect, infirmity, or disorder referable to the back was therefore "noted" at entrance. The Appellant would be presumed to have entered active service in sound condition, absent clear and unmistakable evidence otherwise. However, the record includes diagnostic testing in the form of radiographic imaging which the 2008 VA examiner interpreted as showing long-standing pathologies of the low back. The examiner specifically stated that such evidence was consistent with spinal disorders which had predated service. The Appellant has been somewhat inconsistent in reporting whether low back pain was present prior to service - making statements for compensation purposes and on pre-active duty reservist examinations denying low back pain prior to July 2006, while telling a private physician that there had been some history of back pain prior to active duty. Based on the Appellant's reports and his review of the radiographic evidence, the Appellant's private examiner agreed that a low back disorder preexisted service. In light of concurring opinions of two medical professionals, reached based on evaluation of objective imaging studies and independent interviews with the Appellant, the Board finds that a low back disorder clearly and unmistakably preexisted service. The Board's inquiry now turns to the matter of whether such disorder was not aggravated by service, which must be shown by clear and unmistakable evidence. See Wagner, 370 F.3d 1089. VA is not permitted to rest solely on the notion that the record contains insufficient evidence of aggravation. Instead, VA must rely on affirmative evidence to prove that there was no aggravation. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Board finds that the Appellant's low back disorder was aggravated by service. As previously stated, the Appellant is competent to report on observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Here, the Appellant has repeatedly endorsed onset and worsening of pain during his active duty deployment. Given that the Appellant has been consistent in such reports, including on post-deployment medical assessment and during post-deployment treatment, the complaints are credible. The law provides that 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 disability, as contrasted to the symptoms of that disability, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292 (1991), Beverly v. Brown, 9 Vet. App. 402 (1996). The record contains competing, and well-reasoned opinions from medical professionals, with regard to the question of a permanent worsening, and the Board finds these to be of equal probative weight. Accordingly, where competent medical professional reviewing essentially the same evidence can disagree, the Board cannot find that the evidence is "clear and unmistakable" that the Appellant's low back disorder did not undergo a permanent worsening. Thus, based on the second prong of Wagner, the Board finds that the Appellant's low back disorder not only preexisted service, but was aggravated by such service. Accordingly, service connection for degenerative disc disease of the lumbar spine, is established and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Bilateral Osteoarthritis of the Knees The Appellant claims that a preexisting bilateral knee disorder was aggravated by active duty service. Records included with the Appellant's reserve treatment records show that in December 2000 the Appellant underwent a left knee arthroscopy at a private facility. The next month, imaging of the knee revealed moderately extensive chondromalacia of the medial femoral condyle and loose bodies in the left knee. The assessment was of chondromalacia of the knee. On a medical history report for reserve duty in June 2003, the Appellant endorsed a history of bilateral arthroscopic surgery of the knees, through at the time he denied any current knee symptomatology. In a similar medical history report for reserve duty in March 2005, the Appellant again endorsed a history of bilateral knee surgery. On post-deployment health assessment in March 2007, the Appellant endorsed swollen stiff or painful joints during his deployment, including knee pain. He confirmed such complaints in an April 2007 medical assessment. Subsequent imagining from April 2007 showed moderate degenerative changes with marginal osteophytes and minimal joint space narrowing in the knees. The impression was moderate osteoarthritis of the knees. In May 2007, the Appellant complained of radicular symptoms of the left knee and also reported chronic knee pain bilaterally due to moderate osteoarthritis. On VA examination in November 2008, the Appellant indicated that in 1984 he had torn the meniscus in his right knee and underwent arthroscopic surgery. The surgery was apparently very successful and he had not had right knee pain following the arthroscopy. He then twisted his left knee in 1991 and underwent that aforementioned left knee arthroscopy in 2000. When he entered active duty, the Appellant reported that he was having no left knee pain. The Appellant endorsed feeling a popping while riding a bike in August 2006 which led to swelling. He was given Motrin and placed on light duty. Beginning sometime in late 2006 he began to have right knee pain. Based on the Appellant's reported history and radiographic evidence from service, the examiner noted that the Appellant "clearly had some pre-existing problems with both knees." The examiner noted that on examination the Appellant had no swelling or tenderness and only mild patellar crepitus and patellar apprehension. Without describing an underlying rational for his conclusion, the examiner opined that the Appellant's bilateral osteoarthritis of the knees was exacerbated symptomatically but not permanently aggravated during service. A February 2009 letter from a private physician recounted the Appellant's history of pre-service knee injuries and noted that during service the Appellant wore heavy armor and was assigned to a construction battalion. The examiner also noted post-deployment radiographic evidence of "significant progression of the osteoarthritis in both knees." Based in the Appellant's history, the private physician concluded that the Appellant's "knee problems were significantly permanently affected by wearing heavy body armor during his deployment," and that "the stresses of carrying the extra weight had a permanent effect on his condition." As discussed in the preceding section, veterans are presumed to have entered active service in sound condition except as to defects, infirmities, or disorders noted on service entrance, unless there is clear and unmistakable evidence of the disability's existence prior to service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Kinnaman, 4 Vet. App. at 27. Here, the Board finds, based on the Appellant's testimony and records in the claims file, that the he underwent left and right knee arthroscopic surgeries in 1984 and 2000 - prior to his period of active duty. Accordingly, the inquiry now pivots whether the Appellant's preexisting bilateral knee disorders clearly and unmistakably were not aggravated by service. See Wagner. Bilateral osteoarthritis of the knees was aggravated by service. As with the back, the records includes the Appellant's competent lay testimony endorsing in-service worsening of symptomatology combined with competing opinions from medical professionals with regard to the question of a permanent worsening of the knees. The Board finds the medical opinions to be of equal probative weight and thus the Board cannot find that the evidence is "clear and unmistakable" that the Appellant's knee disorders did not undergo a permanent worsening during active duty. Accordingly, based on the second prong of Wagner, the Board finds that the Appellant's bilateral osteoarthritis of the knees preexisted service and was aggravated by active duty service. Thus, service connection for bilateral osteoarthritis of the knees, is established and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER An initial rating of 10 percent, and no higher, for a left foot strain with Morton's disease is granted. Service connection for degenerative disc disease of the lumbar spine is granted. Service connection for bilateral osteoarthritis of the knees is granted. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs