Citation Nr: 1804179 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 12-05 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to service connection for a left knee disability. 3. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Spouse, and Son ATTORNEY FOR THE BOARD L. N., Counsel INTRODUCTION The Veteran had active service from November 1970 to January 1971. These claims come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2015, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The issue of entitlement to service connection for a left knee disability is REMANDED to the Agency of Original Jurisdiction for additional action. FINDINGS OF FACT 1. Right knee and low back disabilities preexisted the Veteran's entrance to active service and increased in severity during service. 2. The evidence is not clear and unmistakable that the increase in severity of the right knee and low back disabilities was due to the natural progression. CONCLUSIONS OF LAW 1. A right knee disability was aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017). 2. A low back disability was aggravated by active service. 38 U.S.C. §§ 1110, 1153 (2012); 38 C.F.R. §§ 3.303, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks service connection for knee and back disabilities on either an aggravation basis, having preexisted service and worsened during, or direct basis, as related to service. service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service in the line of duty. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To prevail on a claim for service connection on a direct basis, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of disease or injury; and (3) a nexus between in-service injury or disease and the current disability). 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran asserts that, ten to twelve months before being drafted into the service, he was in a car accident, during which he sustained knee and back injuries requiring hospitalization. Allegedly, he showed up to the induction center with records of treatment for the injuries, which prompted the service representative to send him to an outside physician. That physician must have deemed him fit for duty and sent the draft board a letter to that effect as the Veteran was ordered to report a few weeks later. He participated in basic training in November, at which time he began feeling back and leg discomfort. His service signed him up for sick call, where he was given pain medication, but he was not able to schedule a visit with a doctor until January. He continued to participate in basic training and did whatever he was told to do, including running and carrying his backpack and weapon, the medication masking the pain and further damaging his body. During training, he injured his knee, sending him to a different doctor, who referred him to a medical board, which recommended medical discharge. The Veteran contends that he continued to seek treatment for worsening back and knee problems after service. Treatment records dated since 2009 and August 2016 VA examination reports and opinions confirm that the Veteran has right knee and back disabilities, diagnosed as right knee chondromalacia and degenerative joint disease and arthritis and degenerative disc disease of the lumbar spine, showing current disabilities. The evidence also satisfies the in-service event element of the claims for service connection. The service medical records include references to right knee and back abnormalities and service personnel records show the Veteran was evaluated by a medical evaluation board (MEB) and ultimately discharged based on a failure to meet medical fitness standards secondary to a right knee disability. A Veteran who served during wartime is presumed to have been in sound condition when examined, accepted and enrolled in service, except for defects noted at the time of entrance, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. To rebut this presumption of soundness, 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 U.S.C. § 1111 (2012). The record substantiates many of the Veteran's assertions. On pre-induction examination conducted in September 1970, the Veteran submitted documentation of recent injuries, including treatment records and letters. That documentation is no longer in the file, but because in-service medical professionals and the RO mentioned it in other documents, now of record, the Board concedes that it existed and was once part of the file. It is those references upon which the Board will rely in continuing to address the merits of these claims. In January 1971 and August 2016, a MEB and VA examiners concluded the Veteran's back and right knee disabilities preexisted service. On the September 1970 pre-induction examination, an examiner noted a back abnormality. Therefore, with regard to the back, the Veteran is not presumed to have been in sound condition when examined and inducted into service. The examiner did not note any right knee abnormality on the September 1970 pre-induction examination, but the Board believes, but for a small error, he intended to do so. In the report of the pre-induction examination, likely in response to the Veteran's reported history of the car accident and subsequent treatment, the examiner noted a left knee scar, with "left" crossed out. In January 1971, when the Veteran was hospitalized with right knee complaints, a medical professional referred to a two-inch scar on the Veteran's right, not left, knee. Because of that, the Board believes the examiner erred in initially writing "left" and considers the knee scar notation evidence of a right knee defect. Therefore, with regard to his right knee, the Veteran is not presumed to have been in sound condition when examined and inducted into service. The question remains whether the Veteran's preexisting back and right knee disabilities were aggravated in service. A preexisting disease will be presumed to have been aggravated by military service when there has been an increase in the disability during service beyond its natural progress. 38 C.F.R. § 3.306(a) (2017). This presumption can only be rebutted by clear and unmistakable evidence that the increase in severity was due to the natural progression of the disease. Even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231 (2012). In the absence of such evidence, service connection may be granted. 38 C.F.R. § 3.306(b) (2017). The pertinent evidence includes: (1) a report of a September 1970 pre-induction examination; (2) a September 1970 Record Of Induction; (3) a December 1970 treatment record; (4) January 1971 hospitalization records; (5) two January 1971 MEB reports; the Veteran's and his spouse's August and October 2009 written statements; (6) the Veteran's and his spouse's July 2015 hearing testimony; and (7) service personnel records. Collectively, that evidence establishes that, on pre-induction examination, the Veteran reported back problems and presented the examiner with documentation corroborating those problems. The examiner referred him for an orthopedic consultation, the results of which prompted the examiner to assign the Veteran a Physical Profile Series of "2" for lower extremities, to include the low back. That indicates the Veteran had some medical condition requiring limitation of activity, but which the orthopedist did not believe interfered with his ability to serve. The Veteran then participated in basic training, which he claimed caused him back and knee discomfort. The service medical records substantiate that by showing one in-service visit for back complaints in December 1970, and hospitalization for right knee complaints in January 1971, during which medical professionals recorded back and right knee symptoms. Based on those symptoms, the Veteran was recommended for discharge, and deemed unfit for duty due to the right knee condition. In August 2016, an examiner found that evidence insufficient to establish an in-service worsening of back and right knee disabilities. The examiner based that unfavorable opinion on the fact that there was no evidence of any in-service injuries that would have caused a worsening. First, contrary to the examiner's finding, while in the midst of training, the Veteran sought treatment for back and right knee. Second, the Veteran has described injuring his knee during training. In any event, the Board disagrees with the examiner's finding. On induction, two medical professionals noted that the Veteran had back and right knee abnormalities, characterizing them as somewhat limiting, but found them not sufficiently severe as to hinder the Veteran from being inducted. By January 2017, however, other medical professionals found them so severe as to disqualify him for service. Whether the Veteran sustained specific back or right knee injuries is irrelevant. It is clear his general activity during training made his back and right knee disabilities more severe, resulting in him being hospitalized and ultimately discharged. To rebut the presumption of aggravation, the record must include clear and unmistakable that an increase in severity of a disability was due to its natural progression. Here there is no such clear and unmistakable that the increase in severity was due solely to the natural progress of the disorders. Therefore, the Board concludes right knee and back disabilities were aggravated in service. ORDER Service connection for aggravation of a right knee disability is granted. Service connection for aggravation of a low back disability is granted. REMAND The Board regrets the delay that will result from remanding rather than immediately deciding the claim of entitlement to service connection for a left knee disability, but additional action is needed before the Board can proceed. The Veteran claims that he developed a left knee disability secondary to a right knee disability, which is now service-connected. To date, no medical professional has addressed that claim. Accordingly, this claim is REMANDED for the following action: 1. Schedule the Veteran for a VA left knee examination. The examiner should review the entire record and should note that review in the report. The examiner should record in detail the Veteran's history of left knee symptoms. Accepting as competent any reports of lay-observable left knee symptoms, the examiner should opine whether a left knee disability is at least as likely as not (50 percent or greater probability) related to (caused by or proximately due to) a service-connected right knee disability. The examiner should also opine whether a left knee disability has been aggravated (permanently increased in severity beyond the natural progress of the disorder) by a service-connected right knee disability. The examiner should provide a rationale with references to the record for the opinion. 2. Then, readjudicate the claim. In so doing, consider whether the Veteran is entitled to service connection for a left knee disability on a secondary basis, as due to or aggravated by a service-connected right knee disability. If the decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Thereafter, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112 (2012). ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs