Citation Nr: 1804811	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-17 695	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to service connection for a left knee disability.


REPRESENTATION

Appellant represented by:	Oregon Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Santiago, Counsel


INTRODUCTION

The Veteran served on active duty from January 1970 to September 1971.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2016, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge.  He submitted additional evidence and waived initial RO consideration.  See 38 C.F.R. § 20.1304(c).


FINDING OF FACT

The Veteran's left knee condition that preexisted his active duty service was aggravated by such service.


CONCLUSION OF LAW

The criteria for establishing service connection for left knee posttraumatic degenerative arthritis, based on service aggravation, have been met.  38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Legal Criteria

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303.  "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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

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; 38 C.F.R. § 3.304(b).  If a preexisting disability is noted upon entry into service, service connection may still be granted based on in-service aggravation of that disability.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.  See 38 U.S.C. § 1153; 38 C.F.R. § 3.306.

Due regard will be given to the places, types, and circumstances of service, and combat duty and other hardships of service will be accorded particular consideration.  The development of symptomatic manifestations of a preexisting disease or injury during or proximately following action with the enemy or following a status as a prisoner of war will establish aggravation of a disability.  See 38 C.F.R. § 3.306(b)(2).

Analysis

At the December 2016 Board hearing, the Veteran contends that service connection for a left knee disability is warranted because he injured the left knee in service during physical training.  Additionally, the Veteran contends that his service treatment records (STRs) incorrectly show that he had a preexisting left knee injury (apart from a minor, healed laceration), instead of showing a right knee injury that preexisted service.  See, e.g., August 2012 notice of disagreement, May 2014 substantive appeal, December 2016 Board hearing testimony.

The Veteran's STRs include a November 1969 Report of Medical History completed at the time of his entrance to service and shows the following notations: torn knee cartilage, left knee occasionally painful and swollen, injured it 3 years ago, continues to be active in sports, knee stable on exam today.  Additionally, a June 24, 1970, STR shows that the Veteran complained of left knee pain and swelling, and the treatment provider noted a past history of left knee pain since 1968 following a fall resulting in a left knee laceration.  Furthermore, an x-ray report also dated June 24, 1970, notes a 2-year-old injury to the left knee with a well-healed scar.  The September 1971 separation examination does not list a disability.

While the Veteran contends that his STRs incorrectly noted the left knee preexisting condition, instead of the right knee, the Boards finds his recollection regarding such knee condition prior to service not to be credible, given the multiple notations in the STRs concerning a preexisting left knee injury and the passage of time.  While one mistaken entry seems plausible, the fact that multiple entries list the left knee without any mention of the right knee, the Board cannot find that the STRs documented the wrong knee.  Therefore, the evidence clearly shows that the Veteran had a left knee condition that preexisted service that was noted on entrance; thus, this case implicates service aggravation.  See 38 U.S.C. § 1153; 38 C.F.R. § 3.306, McKinney v. McDonald, 28 Vet. App. 15 (2016).

The Veteran was afforded a VA examination in September 2011.  The examiner reported a diagnosis of left knee posttraumatic degenerative arthritis and opined that symptoms of such condition more likely than not are a continuation of the symptoms in the military.  The Board notes that the same VA examiner subsequently made a March 2012 addendum opinion that took the Veteran's preexisting left knee problems into account, and accordingly, the examiner provided a negative nexus opinion regarding aggravation.  The examiner further stated that there was no significant worsening of the left knee arthritis, reasoning that the Veteran was able to perform his military duties despite any left knee symptoms. 

The Veteran's DD Form 214 shows that he was awarded the Combat Infantryman Badge for his active service, to include service in Vietnam, and his STRs show treatment for his left knee, as noted above.  At the Board hearing, he recalled that the left knee was bothering him during physical activity, including in Vietnam.

The Veteran asserts that his left knee symptoms, to include pain and swelling for which he sometimes self-treated with ice and ibuprofen, continued since service.  Additionally, the Veteran's representative asserts, in a December 2016 statement, that the VA examiner's September 2011 positive nexus opinion regarding continuous left knee symptoms occurring during and after service support service connection for a left knee disability.  The Veteran's characterization of how his left knee hurt because of aggravation during service is consistent with his combat service in an infantry capacity.  This type of symptomatic manifestation requiring treatment is covered by 38 C.F.R. § 3.306(b)(2), given the specific facts of this Veteran's case.  Accordingly, a rebuttable presumption of aggravation of preexisting left knee disability has been established here.

As a rebuttable presumption of aggravation has been established, VA has the burden to rebut by clear and convincing proof that there has been no increase in the severity of the preexisting condition, thereby establishing lack of a statutory requirement, or that any increase was the result of natural progression.  See 38 U.S.C. § 1153; 38 C.F.R. § 3.306.  See also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994).

In this case, the presumption of aggravation has not been rebutted with clear and convincing proof.  There is not sufficient evidence that the symptomatic manifestations during the Veteran's service were due to the natural progress of his left knee condition, despite the VA examiner's March 2012 addendum opinion.  Therefore, after resolving reasonable doubt in the Veteran's favor, service connection for left knee disability that preexisted the Veteran's active service is warranted based on service aggravation.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  See also Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012) (in the case of a combat veteran, not only is the combat injury presumed, but so is the disability due to the in-service combat injury).

The Board notes that the amount of aggravation and any subsequent disability rating, to include consideration of the Veteran's total left knee replacement, are part of a downstream issue that the RO will establish in the first instance.


ORDER

Service connection for left knee posttraumatic degenerative arthritis, based on service aggravation, is granted.




____________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs