Citation Nr: 1417625 Decision Date: 04/21/14 Archive Date: 05/02/14 DOCKET NO. 10-27 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for left knee instability. 2. Entitlement to service connection for left knee degenerative joint disease and osteoarthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and L. S. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from September 28 to November 6, 1973 (40 days). This appeal arises to the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, that denied service connection for a left knee injury, including degenerative joint disease. The record before the Board consists of paper claims files and electronic files. Entitlement to service connection for left knee degenerative joint disease and osteoarthritis is remanded to the Appeals Management Center (hereinafter: AMC) and is further addressed in the REMAND portion of the decision. FINDINGS OF FACT 1. Mild left knee ligamentous instability pre-existed active service. 2. During recruit training, instability of the left knee progressed from mild to moderate and a medical board recommended immediate discharge. 3. No medical health professional has attributed any left knee instability to the natural progress of the disease. 4. Clear and unmistakable evidence (obvious or manifest) to rebut the presumption of aggravation of the left knee instability during active service has not been presented. CONCLUSION OF LAW Left knee ligamentous instability was aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 U.S.C.A. § 1112 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION As set forth at 38 U.S.C.A. §§ 5103A, 5126 (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), and 3.159 (2013), VA must notify claimants of certain procedural aspects of their claims and must assist claimants in obtaining evidence that might substantiate their claims. Because the Board is granting the benefits sought by the claimant, any error (if committed) with respect to VA's duty to notify or assist does not result in unfair prejudice to the claimant and need not be discussed. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. 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). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The provisions for service connection for certain chronic diseases, on a presumptive basis, by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service, is not available in this case because the Veteran did not perform active service for the requisite 90 days or more. 38 U.S.C.A. § 1112(a) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307(a)(1) (2013). He was discharged on his 40th day of active service. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the Veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat Veterans under 38 U.S.C.A. § 1154(b), but, because the Veteran was not in combat, he will not be afforded this consideration. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. 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, 1 Vet. App. at 54. A pre-existing injury or disease will be considered to have been aggravated by military 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); 38 C.F.R. § 3.306(a) (2013). For any wartime service, and for peacetime service 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). Aggravation [of a preexisting injury or disease] 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) (2013). The underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. Davis v. West, 276 F.3d 1341 (2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). To be considered pre-existing but noted upon entry, the disorder need not be symptomatic, but only noted on entrance. Verdon v. Brown, 8 Vet. App. 529, 534-535 (1996). The Veteran's May 1973 pre-enlistment medical history questionnaire indicates that he reported a left knee meniscal injury playing football in 1970. Because of this information, the left knee underwent further medical examination prior to enlistment. A May 14, 1973-dated orthopedic consultation report reflects that the left knee was in a post-operative meniscectomy condition. "Mild" instabilities of the medial collateral and anterior cruciate ligaments were found. The orthopedic examiner also stated, "Pt. can run easily and vigorously in place, he can squat & jump up. He is young and agile. He is fit for full duty. X-ray neg. above." The subsequent May 1973 enlistment examination report reflects that the physician annotated that the Veteran was "found fit" for enlistment. The physician assigned a score of "2" on the Veteran's "PULHES" chart seen at block 76 of the Standard Form 88, Report of Medical Examination. That is, the "L" in "PULHES" was rated level 2 while all other areas were rated level 1. As noted in Odiorne v. Principi, 3 Vet. App. 456, 457 (1992), block 76 contains a physical profile chart that is divided into six categories: P, U, L, H, E, S. The "P" stands for "physical capacity or stamina"; the "U" stands for "upper extremities"; the "L" stands for "lower extremities"; the "H" stands for "hearing and ear"; the "E" stands for "eyes"; and the "S" stands for "psychiatric." Para. 9-3(b)(1)-(6), Army Regulation (AR) 40-501, Change 35 (Feb. 9, 1987). See also Hanson v. Derwinski, 1 Vet. App. 512, 514 (1991). In Odiorne, the Court observed that the "PULHES" profile reflects the overall physical and psychiatric condition of the examinee on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). The facts above reflect that at entry into active service, the left knee had mild ligamentous instability, but was deemed capable of withstanding rigorous activity. The STRs further reflect that on October 5, 1973, the 8th day of active service, the Veteran reported left knee pain. The report mentions that the patella was painful to palpation, mentions a questionable ligamentous tear, and mentions that an orthopedic follow-up was planned. An October 13-dated STR reflects that the Veteran had difficulty supporting himself on the left leg, he had diffuse left knee pain, and there was mild tenderness at the left knee medial joint line. He was placed on limited duty for three days, sent to physical therapy for exercises, given whirlpool treatment, and prescribed a pain-killer. An October 15-dated consultation sheet mentions constant left knee pain during exercise and prolonged standing. The knee was painful to palpation and crepitance was detected. An October 23-dated orthopedic consultation report offers an impression of medial collateral ligament (MCL) instability, moderate, and "EPTE." The case was referred to a medical review board. On November 2, 1973, a medical review board determined that the Veteran was to be discharged by reason of erroneous enlistment. The medical review board determined that a left knee disability had existed prior to entry and had not been aggravated during active service. The Veteran filed his original claim for benefits in August 2007, claiming service connection for residuals of a 1973 left knee injury. He submitted private treatment reports that reflect left knee treatment in 1992 and 1993. A March 1992 X-ray showed left knee demineralization consistent with left knee disuse. February 1993 X-rays showed mild degenerative changes of the left patellofemoral articulation and ligament screws in place at the lateral femoral and medial tibial plateaus. There was irregularity in the surface of the lateral femoral condyle, possibly due to old injury. During a January 2008 VA compensation examination, the Veteran reported that he fell in the shower in October 1973 and that left knee pain began thereafter. He reported that after active service, he twisted his left knee and underwent arthroscopic surgery and possible meniscectomy in 1980 or 1981. He also reported that in 1991, he incurred a left anterior cruciate ligament tear and underwent reconstruction at University Hospital in San Antonio. The January 2008 VA orthopedic compensation examination report offers three diagnoses. The first diagnosis is left knee valgus instability, despite surgical reconstruction of the left medial collateral ligament. The second diagnosis is left knee anterior cruciate ligament tear, status post reconstruction without residual instability, but with painful prominent hardware. The third diagnosis is left knee degenerative joint disease/osteoarthritis. The examiner concluded after review of the pertinent medical history and examination of the left knee that none of the current conditions were caused or aggravated by active service. In November 2013, the Veteran testified before the undersigned at a video-conference hearing that he slipped in the shower during basic training and that his left knee swelled after that. He testified that he was treated by a medic, but that the left knee never recovered. He testified that he underwent left knee treatment for an injury in 1981 and that he currently receives Social Security Administration (SSA) disability benefits because of his left knee. Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of 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 (West 2002); 38 C.F.R. § 3.102 (2013). The January 2008 VA negative nexus opinion is unpersuasive for the following reasons: First, the examiner implied that the initial orthopedic consult prior to entry and the orthopedic consult after entry into active service showed the same left knee instability. This is erroneous because the pre-enlistment consultation report notes mild instability, whereas the in-service report notes that this had increased to moderate instability. Second, the January 2008 examiner entirely discounted the Veteran's report of a left knee injury during basic training. The examiner stated, "There is no evidence from his service medical records that he sustained any sort of acute injury while in the service which would have worsened or aggravated his pre-existing condition. I am unable to substantiate his report of a fall in the shower." The negative nexus opinion based on no documented knee trauma during active service is unpersuasive because the Veteran's account of knee trauma has not been shown to be incredible. No foundation for concluding that the Veteran is not credible has been established. The Board may weigh a claimant's lay statements against the absence of contemporary medical evidence; however, the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012). Also see Caluza, 7 Vet. App. at 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (the Board must address the competency, credibility, and probative value of all evidence, including lay evidence). Third, the January 2008 examiner stated that the anterior cruciate ligament injury, "...occurred after his time in service as an acute injury while working as a civilian..." This is erroneous because an anterior cruciate ligament injury was documented prior to active service, according to the May 1973 consultation report, which noted anterior cruciate ligamentous instability. The ligament might have been re-injured in 1991, but clearly it had been injured prior active service. As stressed by the Court in Reonal v. Brown, 5 Vet. App. 458, 461 (1993), a medical opinion based upon an inaccurate factual premise has no probative value. Had the January 2008 VA examiner correctly noted a pre-existing left anterior cruciate ligament injury and then found credible evidence of further in-service left knee trauma, the Board is persuaded that the nexus opinion would have been much more favorable to the Veteran. The Board will therefore resolve any remaining doubt in favor of the Veteran. The left knee had mild instability and was capable of rigorous training prior to entry, but soon after recruit training commenced the left knee became moderately unstable and could not support the Veteran's weight. This shows an increase in disability during active service. The PULHES diagram rated the lower extremities as level 2 prior to entry, but soon after training commenced the left knee disability rendered the Veteran entirely unfit for further service. This also shows an increase in disability. Crepitance in the left knee was detected for the first time on October 15, 1973. It had not been shown at any earlier time. This also shows an increase in disability. No health professional has found that the increased in disability was due to the natural progress of the disease. Moreover, no clear and unmistakable evidence (obvious or manifest) has been presented 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). After considering all the evidence of record, including the testimony, the Board finds that the evidence favors the claim. Service connection for left knee ligamentous instability must therefore be granted. ORDER Service connection for left knee ligamentous instability is granted. REMAND The Veteran seeks service connection for his painful left knee. Although service connection for left knee instability has been granted above, other left knee diagnoses have been rendered including degenerative joint disease and osteoarthritis. Thus, the issue of direct service connection for left knee degenerative joint disease and osteoarthritis, as well as secondary service connection is raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant seeks service connection for the symptoms regardless of how those symptoms are diagnosed or labeled). Also see Douglas v Derwinski, 2 Vet. App. 435, 438 (1992) (all pertinent legal theories must be considered.) Accordingly, this case is remanded to the AMC for the following action: 1. The AMC should obtain up-to-date treatment reports. The AMC should attempt to obtain private medical reports of left knee treatment in 1980 or 1981, as mentioned by the Veteran during his hearing. The AMC should also attempt to obtain any relevant SSA disability determination and the supporting medical records. 2. The AMC should develop the claim for service connection for left knee degenerative joint disease and osteoarthritis as necessary. This includes offering an appropriate examination to determine whether it is at least as likely as not (50 percent or greater possibility) that degenerative joint disease or osteoarthritis is related to active service and/or whether the service-connected left knee instability has either caused or aggravated any left knee degenerative joint disease or osteoarthritis. The claims file and any electronic records should be made available to the examiner. 3. Following development and adjudication of the claim, if the benefit is not granted, the AMC should issue a supplemental statement of the case. The Veteran and his representative should be afforded an opportunity to respond to the SSOC before the claims folder is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). If an examination is scheduled, failure to report for a scheduled examination, without good cause, may result in adverse consequences on the claim for benefits. 38 C.F.R. § 3.655(b) (2013). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs