Citation Nr: 1337210 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-21 130 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a left knee disability REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1964 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 denial of entitlement to service connection for residuals of a left knee injury issued by the Detroit, Michigan, Department of Veterans Affairs (VA) Regional Office (RO) based upon a rating decision that had been brokered to the VA Togus, Maine RO. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. FINDINGS OF FACT 1. The Veteran had a left knee meniscectomy prior to service which was noted upon entrance examination. 2. The Veteran's pre-existing left knee disability clearly and unmistakably did not increase in severity beyond its natural progression during the Veteran's period of active duty. CONCLUSION OF LAW A left knee disability was not incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In correspondence dated in April 2009, prior to the August 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). All identified and available treatment records have been secured. The Veteran's service treatment records and post-service medical records are in the claims folder. Furthermore, the Veteran was afforded a VA examination in June 2009. The opinion reflects that the examiner reviewed the Veteran's past medical history and rendered an appropriate opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this opinion is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Additionally, the Veteran declined to present testimony in support of his claims. Thus, the duties to notify and assist have been met. Analysis The Veteran essentially contends that has a left knee disability that required a total knee arthrodesis, due to his time in service. In general, service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303 (2013). A veteran will be considered 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b) (2013). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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. See VAOPGCPREC 3-2003 (July 16, 2003); see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The Court has held, however, that this presumption attaches only where there has been an entrance examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). In VAOPGCPREC 3-2003, VA's General Counsel noted that "[u]nder the language of [38 U.S.C.A. § 1111], VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service." Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C.A. § 1153 (as opposed to that applicable under 38 U.S.C.A § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows 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 (2103). 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 pre-existing 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. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2013). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). On the entrance examination report in June 1964 prior to the Veteran's enlistment and period of service, a left knee injury and surgery was noted. The Veteran is, thus, not presumed to be sound. As the Veteran is not presumed to have been sound at service entry in December 1964, the next question is whether the disability is shown to have increased in severity in service. If so, service connection is warranted unless there is evidence that clearly and unmistakably demonstrates that the knee disability was not aggravated by active service beyond its natural progression. The presumption of aggravation is generally triggered by evidence that a pre-existing disability has undergone an increase in severity in service. See Maxson v. West, 12 Vet. App. 453 (1999); see also Sondel v. West, 13 Vet. App. 213 (1999). Service treatment records show that in December 1964, the Veteran was seen by a surgeon, contemporaneous to service. The Veteran complained of difficulty while marching, then reported to sick call. He saw an orthopedic surgeon for a consultation at USNH San Diego, who recommended that he separate from service. The examination revealed a well-healed medial vertical scare of the left knee. There was no swelling or effusion about the knee joint at the time. Range of motion was good. An x-ray revealed a boney defect with the joint space of the left knee. The Veteran was diagnosed in service with osteochondritis dissecans, left knee. The examiner found that the condition was not aggravated by service. A January 1965 Report of Board of Medical Survey reiterated these findings and the Veteran was honorably discharged from service because the Board found he did not meet minimum standards for enlistment. Since the presumption of aggravation attaches, the government may only rebut the presumption by clear and unmistakable evidence that any increase in severity was due to the natural progress of the disease or injury. The January 1965 report further stated that examiner was of the opinion that the Veteran did not meet the minimum standards for enlistment and the physical disability (e.g. the left knee disability) was neither incurred in nor aggravated by a period of active military service. The report also noted that the Veteran had given a statement that the disability was brought to the attention of the recruiter and examining physician. The Veteran was seen for VA examination in June of 2009. He reported that his knee had started locking in 1962. In 1963, prior to service, he consulted with a surgeon who conducted a medial meniscetomy. After service, the Veteran worked jobs in construction and progressively began to take lighter jobs. In February 2006, he was referred to an orthopedic surgeon and had a total knee arthrodesis. The Veteran stated that the doctor told him that he probably needed surgery 35-40 years prior to the February 2006 examination. The surgery had no complications and the Veteran attended physical therapy afterwards. The June 2009 VA examiner opined that the total knee arthrodesis was done for a combination of osteothritic changes, as well as the natural evolution of the osteochondritis desiccans. The examiner stated that the Veteran "had a pre-existing knee condition in which he needed a medial meniscectomy on the left; this certainly could have predisposed him to an accelerated osteoarthritic process." The examiner further stated that the Veteran's knee condition would not be significantly different if he never entered the military service in that the osteochondritis desiccans has run its normal course. The pre-existing condition requiring a meniscectomy contributed to an accelerated osteoarthritic process, which was complicated by the osteochondirits, according to the examiner. He further stated that the total knee arthrodesis would have been necessary if the Veteran did not enter military service, as there was no significant injury in the military that lead to a flare up of the condition. The examiner opined that the Veteran needed the total knee arthrodesis surgery for non-service connected reasons. The Board finds that the evidence clearly and unmistakably shows that the Veteran's left knee disability was not aggravated by his service because the disability did not deviate from its natural progression. That is to say, it did not undergo a permanent increase in severity beyond the natural progression of the disorder during service. See 38 U.S.C.A. § 1111 (West 2002); Wagner, supra; VAOPGCPREC 3-2003. This finding is based not only upon the unambiguous and well-reasoned June 2009 VA medical opinion that explains that even without service, the Veteran still would have had left knee symptoms which would have ultimately required surgery, but the contemporaneous decisive opinion of the December 1964 in-service examiner. Because this competent evidence clearly and unmistakably shows that the preexisting left knee disability was not aggravated by service, service connection is not warranted. The Veteran genuinely believes that his current left knee condition is related service. However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on a matter as complex as the etiology of his left knee disability. Thus, his opinion is outweighed by the opinion provided by the June 2009 VA examiner and the December 1964 in-service examiner, who are medical professionals, and who thoroughly discussed the evidence of record and the etiology of the Veteran's pre-existing left knee disability and found that it was not aggravated by service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical experts provided this opinion and the Board is not free to substitute its own judgment for that of such experts. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Therefore, the Board finds that service connection for a left knee disability is not warranted. The evidence shows the condition pre-existed the Veteran's military service. As for aggravation due to service, the competent evidence of record in the form of the foregoing probative medical opinions were clear and unmistakable in finding that the pre-existing left knee disability was not aggravated beyond its natural progression. ORDER Serve connection for a left knee disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs