Citation Nr: 18146092 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-30 307 DATE: October 30, 2018 ORDER Service connection for a right knee disorder is granted. FINDING OF FACT A right knee disorder is related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have been met. 38 U.S.C. §§ 1131, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from August 1982 to August 1985. This appeal comes before the Board of Veterans’ Appeals (Board) from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In February 2017, the Veteran presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2017). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of his claim and he was informed of the information and evidence necessary to substantiate the claim. 38 C.F.R. § 3.103 (2017). A transcript of the hearing is associated with the claims file (Record 02/13/2017). The Veteran submitted additional medical evidence subsequent to the most recent adjudication of his claim by the agency of original jurisdiction (AOJ), and he provided a written waiver of initial adjudication by the AOJ (Record 02/24/2017). Service Connection VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran's own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a),(b); Wallin v. West, 11 Vet. App. 509, 512 (1998). Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011) (to rebut the presumption of soundness in the case of a wartime veteran, the evidence must clearly and unmistakably show not only that the disorder at issue pre-existed entry into service, but clear and unmistakably show that the disorder did not undergo aggravation in or as a result of service). The applicable regulation also provides: “[o]nly such conditions as are recorded in examination reports are to be considered as noted.” 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active 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. 38 U.S.C. § 1153 (West 2014); 38 C.F.R. § 3.306(a) (2017). Aggravation is not demonstrated 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 U.S.C. § 1153 (West 2014); 38 C.F.R. §§ 3.304, 3.306(b) (2017). Under certain circumstances, aggravation may be presumed. However, a pre-existing disease or injury will only be presumed to have been aggravated by service if the evidence shows that the underlying disability underwent an increase in severity. The mere 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, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder became worse during service and then improved due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2017). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The January 1982 service entrance examination indicates abnormal findings for the lower extremities. A special orthopedic examination was conducted on February 1, 1982. The Veteran described a history of a right knee strain in June of 1981, which had not been problematic since then. On examination, the knee had full range of motion, with no swelling or tenderness. The right quadriceps muscle was strong, and there was no ligament laxity or instability. X-rays were negative. However, examination of the patella revealed slight subluxation. The impression was status-post sprain of the right knee, with slight subluxation of the patella, asymptomatic (Record 12/19/2013 at 17). The service entrance examiner noted the findings of the orthopedic examination in the section for notes, on the back of the form. The examiner also wrote that the knee cap has never “popped” out of place and can be subluxed with no symptoms (Record 12/19/2013 at 18). On August 1, 1983, the Veteran was treated for a 9-month history of shin splints while running (Record 12/19/2013 at 29). On January 6, 1983, the Veteran was treated for a right knee injury sustained due to a “kick” in the leg from part of a cannon during firing (Record 12/19/2013 at 63). The Veteran was separated from service on August 21, 1985, and he declined an examination at service separation. The report of a February 2014 VA Examination reveals diagnoses of a contusion with dislocation of the patella in 1986, and current instability of the right knee. The examiner opined that the Veteran’s right knee was not worsened by service. The examiner reasoned that the Veteran had similar complaints with the left knee, which required total knee replacement, and that his morbid obesity would be expected to contribute more to the deterioration of his right knee than his time in the service (Record 02/26/2014). At the Board hearing, the Veteran testified that he had a pre-existing right knee injury, which was not symptomatic at service entry, but which became worse during service. He testified that he injured his right knee when firing a cannon. He testified that he has had problems with his right knee ever since this injury. The Veteran was advised to obtain a medical opinion in support of his claim (Record 02/13/2017). The Veteran submitted an opinion by private provider A. Colosimo, MD, in February 2017. The opinion included diagnoses of a hypermobile patella and patellofemoral arthritis. However, in contrast to the VA examiner, Dr. Colosimo found no joint instability or meniscal signs. Dr. Colosimo opined that the arthritis was secondary to the 1983 knee injury. The rationale was that the Veteran had “no problems with his knee whatsoever” until that injury. But, ever since that injury, there has been persistent pain and popping of the knee (Record 02/24/2017). After a review of all of the evidence, the Board finds that current arthritis of the right knee is related to service. The presumption of soundness does not attach with respect to subluxation of the right knee, which was found on the service entrance examination and accompanying special orthopedic examination. Subluxation is defined as an incomplete or partial dislocation of a joint. See Dorland's Illustrated Medical Dictionary 1817 (31st ed. 2007). The finding at service entry is more than a simple notation of a history of injury, but is a specific finding of a defect by the examiner. While the subluxation was not considered a disqualifying defect, it is a defect noted at examination, acceptance, and enrollment into service. Accordingly, the presumption of soundness does not attach with respect to the noted slight subluxation of the right knee. The Board notes that the essential reasoning of Dr. Colosimo—that the Veteran had no problems with his knee “whatsoever” prior to the in-service injury—is not entirely inaccurate. The Veteran clearly had a pre-existing injury to his knee in 1981. He does not dispute this. At the time of service entry, the injury was manifested by slight subluxation of the patella. Indeed, Dr. Colosimo diagnosed a hypermobile patella during his examination in February 2017. However, Dr. Colosimo also diagnosed arthritis, a condition which was not noted at entry into service. As it was not noted, the presumption of soundness does not attach with respect to arthritis. The VA examiner did not find arthritis, but also did not conduct imaging studies of the knee, which might have detected arthritis. Therefore, the VA opinion cannot be interpreted as against a relationship between current arthritis and service, as the examiner was unaware of its presence. Notwithstanding the pre-existing nature of right knee subluxation, there is no dispute that the Veteran sustained an in-service right knee injury. The VA opinion is limited to whether the pre-existing defect was aggravated by service. As the examiner was unaware of the presence of arthritis, the opinion does not address whether the acknowledged injury to the Veteran’s right leg in service caused his current arthritis. The opinion of Dr. Colosimo is the only opinion addressing direct incurrence, i.e., whether right knee arthritis is etiologically related to the recorded right knee injury in service. Accordingly, the Board finds that there is no conflict in the evidence on this essential question. In sum, the Board finds that a right knee disorder, diagnosed as arthritis, is related to a right knee injury in service. Accordingly, the Board concludes that service connection for a right knee disorder is warranted. As this represents a grant of the full benefit sought on appeal, the Board finds that there is no prejudice resulting from any failure to notify or assist. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Cramp