Citation Nr: 1752546 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 14-01 819 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for a left knee disorder, to include as secondary to a non-service connected right knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Cohen, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from June 1966 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the St. Petersburg, Florida Regional Office (RO). In March 2017, the Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is in the record. As a matter of clarification, the VLJ identified as conducting the March 2017 hearing on the title page of the hearing transcript is in error. The undersigned conducted the hearing. FINDINGS OF FACT 1. The Veteran was not presumed sound on service entrance as to any preexisting right knee disorder. 2. The Veteran's preexisting right knee disorder was not permanently aggravated by his active service. 3. The Veteran's left knee disorder was not caused or aggravated by the Veteran's non-service connected preexisting right knee disorder. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153 (2012). 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.326(a) (2017). 2. The criteria to establish service connection for a left knee disorder have not been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and to Assist VA has a duty to notify claimants about the claims process and a duty to assist them in obtaining evidence in support of their claim. VA issued a December 2010 letter to the Veteran which informed him of the evidence generally needed to support his claim; what actions he needed to undertake; and how VA would assist him in developing his claim. The December 2010 letter was issued to the Veteran prior to the June 2011 rating decision. All identified and available relevant documentation has been secured to the extent possible and all relevant facts have been developed. There remains no question as to the substantial completeness of the claim. 38 U.S.C. §§ 5103, 5103A, 5107 (2012). For these reasons, the Board finds that the VA's duties to notify and to assist have been met. II. Analysis A Veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examinations does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). In his January 1966 pre-entrance medical history report, the Veteran answered in the affirmative to the question of whether he then had, or once had a "trick" or locked knee. In the "physician's summary" section of the report, the service medical examiner noted a previous year right knee sprain with no residuals. The Veteran was assigned a profile designation of "1" for his lower extremities under the PULHES system. See generally Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); ((observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran 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)); also e.g., Army Regulation 40-501, December 2007 and update August 2010. However, clinical evidence was also ascertained during the Veteran's January 1966 pre-entrance medical examination that the Veteran had Osgood-Schlatter disease in the right knee, as a lower extremity abnormality. The Veteran's August 1969 medical examination report noted no lower extremity abnormalities. The Veteran again was assigned a profile designation of "1" for his lower extremities under the PULHES system. In the Veteran's April 1970 pre-separation medical examination report, no lower extremity abnormalities were noted. The Veteran clearly reported having a "trick" or locked knee and a right knee sprain on his pre-entrance medical history report. Service medical examiners noted Osgood-Schlatter disease in the right knee during the Veteran's pre-entrance examination. The Veteran is therefore not presumed sound upon service entry. See generally Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000) (observing that medical opinion determining that the Veteran's condition preexisted service, based upon credible lay statements made by the veteran, may be sufficient to rebut the presumption of soundness, even in the absence of verifying clinical evidence or recorded history). 10/68, 2/69, 5/69, 7/69? The remaining question is whether the evidence of record shows that the Veteran's preexisting right knee disorder was permanently aggravated beyond its natural progression during active service. Under 38 U.S.C. § 1153, aggravation of a preexisting injury or disease is presumed where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. However, aggravation 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). To support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). The Veteran's service treatment records (STRs) contain complaints and treatment pertaining to his right knee; however, no injuries were noted. In an October 1968 sick call treatment record, the Veteran reported a knot on his right knee, with a noted treatment of rest and heat for two days. In a February 1969 sick call treatment record, the Veteran reported right knee pain; however, the service medical examiner noted no trauma or swelling to the right knee. In June 2011, the Veteran was afforded a VA examination. The Veteran was diagnosed with Osgood-Schlatter disease in his right and left knees. The examiner opined that the Veteran's preexisting right knee disorder was not permanently aggravated by service beyond its natural progression. The examiner explained that a symptom of Osgood-Schlatter disease includes painful swelling of the bump located on the upper part of the shinbone just below the knee. The Veteran asserts that he aggravated his right knee during service, specifically in boot camp. The Veteran also submitted a medical article from the internet in support of his appeal. In pertinent part, it indicates that the cause of Osgood-Schlatter disease is unknown but that it normally occurs in individuals involved in sports that require running and jumping. This medical article is of no probative value because it does not take into account the specific facts and circumstances presented in the Veteran's appeal. A preponderance of the evidence is against finding that the Veteran's preexisting right knee disorder was permanently aggravated beyond its natural progression. Although the STRs indicate the Veteran reported one instance of right knee pain, the June 2011 VA examiner opined that the Veteran's preexisting right knee disorder was not permanently aggravated beyond its natural progression, and the Veteran's complaint of right knee pain during service was a symptom of his preexisting right knee disorder. Therefore, service connection is not warranted and the claim is denied. Service connection shall be granted on a secondary basis under the provisions of 38 C.F.R. § 3.310 where it is demonstrated that a service-connected disorder caused or aggravated a nonservice-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran asserts that he aggravated his right knee during service, which caused him to favor his left knee and, as a result, the Veteran injured his left knee. There are also no mentions in the Veteran's service treatment records of any left knee symptoms, which could be scrutinized as an alternative basis of service connection. On this finding, and based on the Board's finding in this decision that service connection is not warranted for the Veteran's preexisting right knee disorder, the preponderance of the competent evidence is against the claim and service connection is therefore not warranted for the Veteran's left knee disorder. ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. ____________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs