Citation Nr: 1626287 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 13-31 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a left knee disorder, to include the residuals of a left knee injury, with resulting arthroplasty of the left knee. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. At a hearing before the Board in April 2016, the Veteran raised the issue of entitlement to service connection for bilateral foot disorders, secondary to his claimed knee disorder, as well as the issue of entitlement to nonservice-connected pension benefits/a total rating for compensation purposes based upon individual unemployability. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also Stanton v. Brown, 5 Vet. App. 563 (1993). These issues have not been addressed by the RO and are therefore referred to the RO for appropriate action, to include notifying the Veteran as to the procedures required for filing a claim for VA benefits. 38 C.F.R. § 3.155 (2015). FINDINGS OF FACT 1. The Veteran has a current left knee disability. 2. The Veteran is presumed sound upon entry into service; clear and unmistakable evidence to rebut this presumption is not of record. 3. The Veteran testified to having a left knee injury during service; service treatment records confirm that he was treated for symptoms of left knee pain. 4. Probative evidence of record links the Veteran's current left knee disability, status-post arthroplasty, to the left knee injury during service. CONCLUSION OF LAW The criteria for service connection for residuals of a left knee injury, with resulting arthroplasty of the left knee, have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When no pre-existing injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b) (2015). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's injury or disease was both pre-existing and not aggravated by service. 38 U.S.C.A. § 1111 (West 2014); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In March 1966 entrance examination of the Veteran was conducted. Clinical evaluation of the lower extremities was normal, with no abnormities noted by the examining physician. Service treatment records dating from October 1966 reveal that the Veteran was seen for complaints of left knee pain. While x-ray examination was normal, the physical examination revealed pain over the lateral aspect of the knee. The Veteran reported having a pre-service football injury. However, lay statements by a Veteran concerning a preexisting condition are not sufficient to rebut the presumption of soundness. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (a lay person's account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service). No pre-existing injury or disorder of the left knee was "noted" on the entry examination; this service treatment record entry does not arise to the level of clear and unmistakable evidence that any left knee disorder both pre-existed the Veteran's military service and was not aggravated by service. Accordingly, the presumption of soundness attaches. Private medical records dated in 2008 and 2011 reveal treatment for left knee arthritis. These records note a history of a left knee injury during military service in the 1960s. An August 2012 VA medical opinion states that the claimed left knee disorder was "less likely than not" related to service. However, this opinion relied in part that the Veteran had a pre-service left knee injury, which is not probatively shown by the evidence of record. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). A May 2016 private medical opinion indicates that the Veteran's left knee arthritis and resulting arthroplasty, was at least in part due to the injury experienced during service in 1966. Concerning an in-service event or injury, service treatment records demonstrate complaints and treatment for left knee pain during service. Furthermore, the Veteran's testimony as to the incurrence of a left knee injury in service, and having left knee pain since leaving service, is competent evidence about what he has experienced. The Board finds nothing in the record that would refute the competency and credibility of the Veteran with respect to the incident in service and his symptoms since that time. The private medical opinion in 2016 links the current left knee disability with resulting arthroplasty to the in-service knee injury. Resolving all doubt in the Veteran's favor, service connection for the residuals of a left knee injury with resulting arthroplasty is warranted. ORDER Service connection for the residuals of a left knee injury, with resulting arthroplasty of the left knee, is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs