Citation Nr: 1337034 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 11-17 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a right leg disability. REPRESENTATION Appellant represented by: Heather E. Vanhoose, Attorney ATTORNEY FOR THE BOARD Jacob Dworkin, Associate Counsel INTRODUCTION The Veteran served on active service from December 1969 to January 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The Veteran had a right leg disability prior to entrance into active service and the right leg disability was noted on a medical examination report at the time of entrance into active service. 2. There was no increase in disability of the Veteran's preexisting right leg disability during his active service. CONCLUSION OF LAW The criteria for service connection or service connection due to aggravation of a right leg disability have not been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in September 2009. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing an error is harmful or prejudicial falls on party attacking agency decision); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Board considers it significant that the subsequent statements made by the Veteran and his representative suggest actual knowledge of the elements necessary to substantiate the claim. Dalton v. Nicholson, 21 Vet. App. 23 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative that demonstrate an awareness of what is necessary to substantiate a claim). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the April 2010 rating decision. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a claim for benefits, the Board must consider: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). The Board finds that a VA examination is not required. The Board finds that the evidence of record does not indicate that the Veteran's right leg disability worsened during service. There is no report in the service medical records that indicates that the Veteran stepped in a hole and aggravated his right knee disability. Therefore, a retrospective VA opinion as to in-service worsening would hinge on whether or not the examiner found the Veteran's recitation of the facts to be credible. Absent an assessment of credibility, which is a determination to be made by the Board, any retrospective opinion would be purely speculative. Therefore, a retrospective opinion would not be as probative as the evidence already of record. There is sufficient medical evidence of record to make a decision, and therefore VA has no duty to provide an examination or obtain an expert opinion in this case. The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection The Veteran asserts that he is entitled to service-connection due to injuring his right knee in basic training by stepping in a pothole while carrying a man on his back. After reviewing all of the relevant evidence in this case, the Board finds that the preponderance of evidence is against granting the claim. 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 (West 2002); 38 C.F.R. § 3.303(a) (2013). To establish a right to compensation for a present disability, 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. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran will be presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto. Only conditions recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2013). A preexisting injury or disease will be considered to have been aggravated by active 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 (West 2002). For Veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2013). If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, but the veteran may bring a claim for service connection for aggravation of that disability. The burden falls on the veteran to establish aggravation. If the presumption of aggravation, the burden shifts to the government to show a lack of aggravation by establishing that the increase in disability is due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). An increase in disability during service requires that the underlying preexisting disability increase in disability, as opposed to the symptoms of the disability or flare-ups of the condition. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002) (evidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat Veteran to show increased disability under 38 U.S.C.A. § 1153 unless the underlying condition is worsened); Hunt v. Derwinski, 1 Vet. App. 292 (1991 (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 the symptoms, is worsened). The Veteran's service medical records show that on December, 1969, the service entrance exam noted that the Veteran had a scar on his right knee. The examining physician requested information regarding the Veteran's prior right knee surgery. The report is stamped with language that the examining physician was not able to verify the Veteran's claims regarding ailments prior to service concerning his right knee. During the first week of training, the Veteran complained of right knee pain and was further evaluated. After being evaluated, the Veteran was diagnosed with a degenerative arthritic right knee, a torn anterior cruciate ligament of the right knee, a torn medial collateral ligament of the right knee, chondromalacia of the right patella, and a contracture of the right knee. The Veteran reported that he injured his right knee playing football in 1967 and underwent surgical repair for his knee and subsequently reinjured that knee in 1968 due to a car accident. The Veteran was given an honorable discharge due to an erroneous enlistment as it was determined that his knee disability preexisted service. The Board finds that the Veteran's service medical records to be most probative in the finding that the Veteran had a preexisting right knee disability prior to enlistment. The right knee disability was noted by medical personnel and the Veteran himself reported that he had been involved in two prior incidents that caused injuries to his right knee. While the Board finds the service medical records to be more probative in the finding that the Veteran entered service with a preexisting disability, the Board has not ignored the Veteran's statements concerning his right knee disability. The Board has considered the Veteran's statements that he injured his leg during the first week of boot camp while carrying a man and then stepping into a pothole and injuring his knee. The Veteran supported his statement with no evidence other than the statement itself. There are no reports in the Veteran's service medical records that support his claim of stepping into a pothole during training. The only notations that concern his knee disability indicate that he experienced pain and was the subsequently evaluated. During the examinations, the Veteran provided medical personnel with his medical history of his two prior right knee injuries, but no notation is made of any injury during service. The Veteran's statements to medical personnel in 1969 concerning the history of his right leg disability and the 1969 entrance examination that noted the Veteran's scar on his right knee, are evidence against the finding that the Veteran was sound when he entered service. The entrance examiner clearly noted on the examination report that the Veteran had a scar on his right knee, residual of a previous knee surgery, and although clearing the Veteran for enlistment, requested more information pertaining to the Veteran's right knee surgery. Furthermore, during the November 2011 hearing before the RO, the Veteran and his representative confirmed that the Veteran has injured his right knee playing football in 1967 and injured that same knee due to a car accident in 1968, prior to his enlistment in December 1969. Therefore, with the preexisting disability noted, the Board finds that the presumption of soundness does not apply. Although the Veteran is found to have a preexisting disability that was noted at entry into service, he may still be entitled to service connection if his disability was aggravated during active service. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2013). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153, 38 C.F.R. §§ 3.304, 3.306(b) (2013). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2013). As the burden lies with the Veteran to show that his right leg disability increased in disability during service, the evidentiary standard applicable what the Veteran is required to show must be explained. 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. When, after carefully consideration of all the procurable and assembled data, a reasonable doubt arises regarding the service origin, the degree of disability, or any other point, that reasonable doubt will be resolved in favor of the Veteran. By reasonable doubt, it is meant, one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 U.S.C.A. § 5107 (b) (West 2002); 38 C.F.R. § 3.102 (2013). The claimant will prevail when the evidence is in relative equipoise or favors the claim, and the claim will be denied if a fair preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The burden of showing an increase in disability can thus be met if either the preponderance of evidence shows that Veteran's right leg disability increased in severity during service or the evidence is in relative equipoise as to whether the right knee disability increased in severity during service. If the preponderance of the evidence is against a finding that the right leg disability increased in severity during active service, then the burden doe snot shifts to VA to demonstrate by clear and unmistakable evidence that an increase occurred but was not beyond the natural progression of the disability. The Board finds that the preponderance of the evidence is against a finding that there was an increase in disability of the Veteran's right leg disability during active service. The Medical Board in service found that the knee disability had existed prior to service and had not been aggravated by service. The Board finds that evidence during service is against a finding of aggravation during service and outweighs the Veteran's contentions. The Board has considered the Veteran's statement that his right leg disability worsened during service. That includes statements that he was carrying a man on his back and stepped into a pothole that caused him to report for medical treatment of his right leg. The Board questions the credibility of the Veteran's recollection of the facts regarding the circumstances of stepping into a hole during training and a post-discharge knee surgery. In March 2008, the Veteran filed a distinct claim from the matter that is currently before the Board. In that claim, the Veteran, seeking service-connection for osteoarthritis of the right knee, reported not only that he suffered a training injury by stepping in a hole, but also that he injured his knee in a helicopter crash while in training. There is no evidence of record to show that the Veteran was in a helicopter crash in any of the Veteran's service medical records. Furthermore, the Veteran did not include in the current claim any reports or statements concerning a helicopter crash causing his right knee injury. The Board finds that injuries from a helicopter crash or by stepping in a hole while carrying a man, are incidents that would ordinarily have been noted in the Veteran's service medical records, particularly as the Veteran reported knee pain in service, but did not attribute that pain to stepping in a hole or any helicopter crash in Vietnam. The Board notes that the Veteran did not have service in Vietnam during his 28 days of service. The absence of a record reporting an injury caused by the helicopter crash is evidence against finding that the Veteran was injured in that manner. Buczynski v. Shinseki, 24 Vet. App. 221 (2011). The Veteran's service medical records are complete and although there are relatively few records, the Board finds that is due to the Veteran service lasting less than 30 days and are not any indication of incompleteness. In evaluating the Veteran's statements, the Board finds that he is an inaccurate historian. That tends to discredit his statements regarding the aggravation of his preexisting right knee disability that occurred during a training exercise. The Veteran reported during service that he sustained a pre-service football injury to his right knee and also reported a pre-service motor vehicle accident that also injured his right knee. The Board finds that had there been a worsening of his knee disability he would have reported that to medical personnel. However, no report concerning a worsening or details regarding any injury due to stepping in a hole is present in the service medical records. Therefore, the Board assign the Veteran's statement's about stepping into a hole that caused aggravation to his right knee little probative weight. The Board finds that the evidence does not demonstrate that the preexisting right leg disability was aggravated by service and therefore, the burden has not shifted to the VA to demonstrate by clear and unmistakable evidence that an increase in severity, or aggravation, occurred beyond the natural progression of right leg disability. The Veteran has provided no medical evidence of any post-discharge surgery and has not provided any evidence to carry his burden of showing increase in severity during service of his preexisting right leg disability. That lack of evidence leads the Board to a finding that is against granting the Veteran's claim. Accordingly, the Board finds that the preponderance of evidence is against a finding that the Veteran's pre-existing right leg disability, noted on examination at entrance into active service, increased in disability during his active service. Therefore, the appeal must therefore be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right knee disability is denied. ___________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs