Citation Nr: 1340908	
Decision Date: 12/11/13    Archive Date: 12/20/13

DOCKET NO.  07-28 350	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUE

Entitlement to service connection for a left knee disability.  


REPRESENTATION

Appellant represented by:	Peter J. Meadows, Attorney


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Dan Brook, Counsel


INTRODUCTION


The Veteran had active military service from August 15, 1974, to September 9, 1974.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas.

The Veteran testified before the Board at a December 2008 hearing conducted at the RO.  A transcript of the hearing is of record.

In an August 2010 decision, the Board reopened the Veteran's claim of service connection and remanded it for further development.  In November 2011, the Board issued a decision denying service connection for a left knee disability.  The Veteran appealed.  In an October 2012 order, the Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (Joint Motion), vacating the November 2011 Board decision and remanding the Veteran's claim to the Board.  In June 2013, the Board again remanded the claim for further development.    


FINDING OF FACT

The Veteran's current left knee disability is reasonably shown to be related to service.  


CONCLUSION OF LAW

The criteria for entitlement to service connection for a left knee disability have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013).




REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) includes enhanced duties to notify and assist claimants for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  Given the favorable disposition of the claim for service connection for a left knee disability, the Board finds that all notification and development action needed to fairly adjudicate this claim have been accomplished.

II.  Analysis

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, 1131; 38 C.F.R. § 3.303(a).

Service connection may also 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).

Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service.  See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).

The presumption of soundness can be rebutted where the evidence clearly and unmistakably shows that the Veteran's disability existed before acceptance and enrollment into service and was not aggravated by service.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  Evidence is clear and unmistakable where it "cannot be misinterpreted and misunderstood, i.e., it is undebatable.'"  Quirin v. Shinseki, 22 Vet. App. 390, 396   (2009) (citing Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)).

The general standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002).  A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence.  See 38 C.F.R. § 3.102.  When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The preponderance of the evidence must be against the claim for benefits to be denied.  See Alemany v. Brown, 9 Vet. App. 518 (1996).

At his July 1974 enlistment examination, the Veteran's lower extremities were found to be normal with no left knee pathology noted.  Thus, the Veteran's left knee must be presumed sound upon entry into service unless there is clear and unmistakable evidence that a knee disorder pre-existed service and was not aggravated by service.  38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  A subsequent August 22, 1974 orthopedic consultation report clearly shows that the Veteran reported injuring his left knee in a motorcycle accident approximately three years prior to service and the record also contains a clear consensus among VA examining practitioners that, based on a review of the service treatment records, the motorcycle accident with left knee injury prior to service did occur.  The Veteran and his mother have reported that no such injury occurred but given the specific, much more contemporaneous documentation in the service treatment records, the Board does not find these later self-serving reports credible.  See e.g. LILLY'S:AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule of Evidence 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition made to medical providers based on such statements being exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care).  Consequently, the evidence clearly and unmistakably indicates that the Veteran's left knee disability pre-existed service.

Regarding aggravation, during the August 22, 1974 orthopedic consultation, the Veteran was diagnosed with internal derangement of the knee, which existed prior to entry into service and also, a probable torn medical meniscus.  A September 4, 1974 Medical Board report then includes a finding that the Veteran's left knee disability existed prior to entry and was no aggravated therein.  Also, subsequent VA medical opinions from February 2008 and June 2013 VA examiners tend to indicate that the pre-existing knee disability was not aggravated by service.  However, given that the August 1974 orthopedic examiner clearly found that the Veteran's internal derangement of the knee existed prior to service but did not make the same finding considering the torn meniscus and given that the June 2013 VA examiner found only that the Veteran's left knee was "less likely than not" permanently aggravated by active service, the evidence does not clearly and unmistakably show that the pre-existing left knee injury was not aggravated by service.   Thus, the Veteran's left knee must be considered to have been sound upon entry into service.   38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b).  

Considering the left knee sound, the evidence shows that the Veteran had a left knee disability, diagnosed as internal derangement, at separation.  It also shows the presence of a current left knee disability, diagnosed during the appeal period as internal derangement and degenerative joint disease.  Additionally, the evidence is at least in equipoise as to whether the current left knee disability is related to the internal derangement identified at separation.  Notably, the February 2008 VA examiner found the Veteran's left knee mild degenerative joint disease partially related to this internal derangement and a private treating physician, in March 2013, found it generally more likely than not that the current left knee disability is related to service, whereas the June 2013 VA examiner found the current knee condition most likely secondary to the Veteran's post-service work history and natural age progressive disease.  Given this equipoise, reasonable doubt as to the presence of a medical nexus must be resolved in the Veteran's favor.  38 C.F.R. § 3.102.  Accordingly, all elements of the claim are established and an award of service connection for left knee disability is warranted.  38 C.F.R. § 3.303, Shedden, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Alemany, 9 Vet. App. 518 (1996).


ORDER

Service connection for a left knee disability is granted.  



____________________________________________
KELLI KORDICH
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs