Citation Nr: 1751336 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-34 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left knee disability, and if so, whether the reopened claim should be granted. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B.A. Evans, Associate Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps (USMC) from November 1987 to November 1991. The Veteran also had active air service from September 2003 to March 2004, from October 2004 to October 2007, from November 2008 to April 2009, from November 2009 to April 2010, from June 2010 to September 2010, from March 2011 to April 2011, from August 2011 to September 2011, from October 2011 to November 2011, from October 2012 to March 2013, and from March 2014 to July 2016. This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2012 Rating Decision from the Boise, Idaho Regional Office (RO) of the Department of Veterans Affairs (VA). With regard to the Veteran's claim to entitlement to service connection for a left knee disability, the Board notes that the Veteran has been diagnosed with various knee disabilities since his separation from active service. Therefore, the Board has broadened the claim on appeal to entitlement to service connection for a left knee disability. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Board notes that the Veteran filed a timely notice of disagreement with the rating assigned for his right knee disability in the February 2012 rating decision. The Veteran was issued a statement of the case addressing that issue in November 2013. However, in his December 2013 substantive appeal, the Veteran specifically limited his appeal to only the issue of entitlement to service connection for a left knee disability. Therefore, the Board has limited its consideration accordingly. FINDINGS OF FACT 1. An unappealed September 2008 rating decision denied entitlement to service connection for stress/strain of the left knee. 2. The evidence associated with the claims file subsequent to the September 2008 rating decision includes evidence that relates to an unestablished fact necessary to substantiate the claim, is neither cumulative nor redundant of evidence already of record, and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability 3. The Veteran's current left knee disability is etiologically related to his active service. CONCLUSIONS OF LAW 1. New and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a left knee disability. 38 U.S.C. §§ 5108, 7104, 7105 (2012); 38 C.F.R. § 3.156 (2017). 2. A left knee disability was incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012), 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim to Reopen A September 2008 rating decision denied entitlement to service connection for stress/strain of the left knee on the basis that the Veteran did not have a current disability. The Veteran did not appeal that decision. The pertinent evidence that has been received since the September 2008 rating decision includes medical records showing that the Veteran has been diagnosed with a left knee disability, to include a meniscus tear and chondromalacia patella. The Board finds that the additional medical evidence is new and material. The Board notes that it is not cumulative or redundant of the evidence previously of record. Moreover, it raises a reasonable possibility of substantiating the claim of entitlement to service connection for a left knee disability. Accordingly, reopening of the claim of entitlement to service connection for a left knee disability is warranted. Entitlement to Service Connection for a Left Knee Disability The Veteran has asserted that he had a left knee disability that existed prior to his active service period which commenced in March 2011. He has reported that his period of active service caused aggravation of his pre-existing knee injury. At the outset, the Board notes that in all cases, a veteran is presumed to have been sound upon entry in to active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In other words, when no pre-existing medical condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App 225, 227 (1991). A review of the record shows that the Veteran was not afforded an entrance examination prior to his March 2011 mobilization to active service. Instead his medical record was reviewed and he was confirmed to have no pre-existing injuries that could be aggravated by active service. Therefore, the Veteran is presumed to have been sound at the time of his entry into active service. If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both pre-existing and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009)(citing Wagner, 370 F.3d at 1096). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. Medical records from the Prairie Medical Clinic show that the Veteran was seen for left knee pain in January 2011 and February 2011. At that time, a definitive diagnosis of a left knee disability was not made. Further, as noted above, the Veteran was found fit for active service prior to his mobilization in March 2011. In March 2011, the Veteran was seen in medical for complaints of knee pain. A line of duty determination (LOD) was made at that time, in which it was noted that the Veteran had injured his knee painting prior to his period of active service, but that his pain had been aggravated by activities and duties during his active service, namely kneeling down to secure a cargo strap. At the Veteran's December 2013 Physical Evaluation Board (PEB), the Veteran reported that his knee had popped while painting several days after active deployment in March 2011. In a January 2014 Medical Evaluation Board (MEB) addendum, the Veteran's reviewing medical professional stated that the Veteran's advanced knee chondromalacia patellae was fully consistent with his military record. After deployment, the Veteran was diagnosed with a meniscal tear requiring surgery. The left meniscectomy was performed in June 2011. The medical report from the surgery also noted chondromalacia. At a May 2012 VA examination, the Veteran reported that he had occasional knee pain prior to his March 2011 mobilization, but that while he was on active duty his symptoms had increased in severity and that he experienced significant swelling and pain during that period of active service. It was noted that a post-deployment magnetic resonance imaging scan (MRI) revealed a left medial meniscus tear and arthritis. The examiner diagnosed left meniscus tear, status post meniscectomy, and chondromalacia patella. The examiner opined that the Veteran's left knee disability clearly and unmistakably existed prior to his active service, but that the disability was aggravated by his active service. In this regard, the examiner noted that the Veteran did have a left knee injury during his first period of active service with the USMC, but that it was not symptomatic. Additionally, the examiner noted that an MRI conducted in 2009 did not show the Veteran to have a torn meniscus at that time. The examiner noted that the Veteran's left knee pain increased while he was on active service, and such was clearly documented in his medical records. Further, the examiner noted that the post-deployment MRI showed a left torn meniscus, arthritis, and chondromalacia patella, which was aggravated by his active service. The Board finds that the November 2012 VA examination and opinion report is adequate because the examiner thoroughly reviewed the claims file and discussed the relevant evidence, considered the contentions of the Veteran, and provided a thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007); Stefl v. Nicholson, 21 Vet. App. 120 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In November 2013, VA obtained an additional medical opinion. At that time, the examiner again found that the Veteran had a left knee disability that clearly and unmistakably existed prior to his active service. However, the November 2013 VA examiner found that the left disability was not aggravated beyond the natural progression by active service. In this regard, the examiner noted that the Veteran likely had a torn meniscus prior to his entry into active service in March 2011. Further, the examiner noted that torn menisci do not heal on their own and that they are destined to extend and symptoms are destined to get worse. It was the examiner's conclusion that the increase in severity would have occurred even if the Veteran were not on active service. The Board finds that the November 2013 VA opinion is not adequate for adjudication purposes. First and foremost, the appropriate burden of proof was not applied. In order to rebut the presumption of soundness, it must be determined that the Veteran both had a disability that clearly and unmistakably existed prior to his active service and that such disability was clearly and unmistakably NOT aggravated by active service. In this case, the examiner found that the Veteran's left knee disability was not aggravated beyond the natural progress by service. The examiner does not appear to have used the clear and unmistakable standard as required. Further, the November 2013 VA examiner did not actually examine the Veteran. The examiner reviewed the record, but did not have the opportunity to interview the Veteran. As the opinion is not adequate, it cannot serve as the basis of a denial of entitlement to service connection. In sum, the Veteran was not noted to have a left knee disability at the time of his March 2011 entry into active service and so, is presumed to have been sound at entry. The May 2012 VA examiner opined that while the Veteran's left knee disability clearly and unmistakably existed prior to service, it could not be determined that such disability was clearly and unmistakably NOT aggravated by service. In fact, the May 2012 VA examiner found that the disability was aggravated by active service. Accordingly, the Board finds that the preponderance of the evidence is for the claim and entitlement to service connection for a left knee disability is warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence has been received and reopening of the claim of entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a left knee disability is granted. ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs