Citation Nr: 1752328 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 13-13 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Veteran represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran served on active duty from October 1990 to November 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board notes that the Veteran attended a Board hearing with the undersigned Veterans Law Judge (VLJ) in January 2016. The transcript of such is associated with the record. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing system. Virtual VA contains records that are duplicative of what is in VBMS or irrelevant to the claim. FINDING OF FACT A right knee disorder clearly and unmistakably pre-existed active service and was clearly and unmistakably not aggravated thereby. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1137, 1153, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in January 2016. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103(c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board finds that there has been compliance with the prior April 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a Right Knee Disorder The Veteran has claimed that he experiences a right knee disorder which is caused by his service. Regarding the Veteran's right knee disorder, the Board notes that such was reported to have existed prior to his entrance to service. Specifically, a service treatment record dated November 1990 documents the Veteran's report of an injury to his right knee from playing football in high school. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2014); 38 C.F.R. §§ 3.307, 3.309(a) (2017); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309 (2017); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran is presumed to be in sound condition when he entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. § 1111 (2012). This statutory provision is referred to as the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To rebut the presumption of sound condition, 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. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03; Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). A Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003). However, if the government fails to rebut the presumption of soundness, the Veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant, 17 Vet. App. at 131; Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). First, the Board finds that the evidence of record supports a finding that there is current right knee disability. An August 2016 VA examination diagnosed intermittent tendonitis of the right knee, evidenced by the Veteran's January 2012 X-ray report which showed bucking of the infrapatella tendon and some inflammation of the tendon. See August 2016 VA examination; see also January 2012 X-ray report. Thus, the evidence demonstrates a current disability. Second, the Board finds that the Veteran's right knee disorder was not "noted" on service entrance. See 38 C.F.R. § 3.304(b). On service induction examination in August 1989, the examiner noted that the Veteran had normal lower extremities. Thus, the Board finds that the Veteran's right knee disorder was not noted on entrance within the meaning of 38 C.F.R. § 3.304(b). The issue, then, is whether the current right knee disability clearly and unmistakably pre-existed service and was not clearly and unmistakably aggravated thereby. The 2016 VA examiner opined that the Veteran's knee disorder clearly and unmistakably pre-existed service. The examiner based this opinion on the Veteran's own report of a history of knee injury prior to military service. See August 2016 VA examination. The Veteran does not dispute the rep-service injury, but stated he did not have symptoms at the time of service entrance. Accordingly, the Board finds that the evidence of record establishes that a right knee disorder clearly and unmistakably pre-existed active service. Finally, the Board finds that the evidence of record demonstrates that the right knee disorder was clearly and unmistakably not aggravated by active service. First, the Veteran was afforded a VA examination in January 2012, at which point the examiner found that the Veteran's right knee disability was benign and not related to service, but did not address the Veteran's football injuries prior to service. Second, however, an August 2016 VA examiner opined that the disorder was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. The examiner noted first that the Veteran failed to report his two previous knee football injuries on the entrance medical history, and given the first few days of basic training are involved in obtaining uniforms, vaccinations, billeting, tour of training facilities, classwork for inductees etc, by the initial days of actual fitness training (day 5-10) he demonstrated failure to meet the fitness criteria and was counseled due to inability to complete the running event. Thereafter, the Veteran was sent to a Medical Officer for review, at which time he reported the two prior knee injuries. The Veteran was placed on casual meaning no more fitness exercises pending the documentation of separation from military service for failure to meet fitness standards. The examiner stated that a review of the 2012 VA examination and x-ray report, lay testimony, the STRs, and private medical records was conducted. The examiner noted that the 2012 radiograph was abnormal, but was taken 22 years post-service discharge. A January 1991 record noted there were no signs of internal derangement of right knee and thus there were no residuals or a right knee ailment documented as of Jan 1991. The examiner found that the current disability was most likely proximately related to normal wear and tear of walking with his civilian career. No contrary medical opinion is of record. The Veteran has contended that his knee pain occurred in service while he was running in basic training. See January 2016 Board Hearing Transcript. Although the Veteran is competent to report his knee symptoms, he is not competent to provide a medical opinion regarding aggravation of the underlying condition, which requires medical knowledge and is not capable of lay observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (noting that competent medical evidence is not necessarily required for etiology or diagnosis purposes); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (noting that lay testimony is competent to establish observable symptomatology but not competent to establish medical etiology or render medical opinions). In light of the foregoing, the Board finds that the competent and probative evidence indicates that the Veteran's right knee disability clearly and unmistakably pre-existed his service and was not aggravated during service. ORDER Entitlement to service connection for a right knee disorder is denied. ____________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs