Citation Nr: 18147618 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 15-05 324 DATE: November 5, 2018 ORDER Service connection for a left knee disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 1977 to May 1978. 2. The Veteran’s left knee disorder, which was noted on his enlistment examination, pre-existed his entry into active service and was not aggravated by his active service. CONCLUSION OF LAW A left knee disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 1131, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION Although in a June 2018 report of general information it was noted that the Veteran called VA and requested to cancel his appeal, withdrawal of a substantive appeal needs to be done in writing (at any time before the Board promulgates a decision). 38 C.F.R. § 20.202 (2018). As the Veteran’s request to withdraw his appeal was not made in writing, the appeal is not dismissed. In addition, the representative on his behalf submitted additional written argument suggesting the Veteran’s intent to proceed with the appeal Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (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 in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). A pre-existing disease or injury will be considered to have been aggravated by military 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; 38 C.F.R. § 3.306(a). Where the pre-service disability underwent an increase in severity during service, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b). These provisions apply to only where the induction examination notes a preexisting condition that is alleged to have been aggravated. Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) (quoting Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (“[I]f a preexisting disorder is noted upon entry into service . . . the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation.”). The Veteran has claimed that service connection is warranted for a left knee disorder because, although it preexisted service, it was aggravated during service. He also indicated that he reinjured his left knee during service. The January 1977 service enlistment examination report notes that the Veteran had post-operative medial meniscectomy, left, not considered disabling. As such, the left knee disorder preexisted his active duty service. Therefore, he is not presumed to have been in sound condition at the time of entry into service. An April 1977 service treatment record (STR) noted complaints of left knee pain on running and prolonged standing. The Veteran was placed on light duty for seven days. A May 1977 treatment note indicated that he had left knee surgery in 1975 and had been doing well until entering the Navy. He injured his knee during boot camp when he stepped in a pothole. The impression was traumatic subluxation of the patella. He was given aspirin and the knee was immobilized in a cast for two weeks. A June 1977 STR related that the Veteran was seen for complaints of left knee pain, stiffness and swelling. Examination of the left knee revealed subluxation and crepitus. The assessment was patellar tendonitis. It was noted that he was still attending physical therapy and had begun strength training. He was referred to orthopedic service. An orthopedic examination of the left knee in July 1977 revealed tenderness and some limitation of extension but generally the left knee was within normal limits. X-ray studies revealed mild degenerative changes. The impression was chondromalacia and quadriceps insufficiency. A July 1977 physical therapy service treatment note indicates that the Veteran did not return to physical therapy after June 30, 1977. He had had five sessions. The April 1978 separation examination report notes normal examination of the lower extremities. No knee diagnosis or findings were documented. The relevant inquiry now becomes whether his left knee disorder increased in severity during his active service. To that end, there is one medical opinion that addresses this issue. Notably, a June 2012 medical opinion stated that the Veteran’s left knee disorder, which clearly and unmistakably existed prior to service, was less likely as not permanently increased beyond the natural progression in service. The examiner reasoned that although the Veteran had problems with his left knee in service, he was seen by orthopedic service and underwent physical therapy during service. By August 1977, orthopedic service felt that the condition had resolved to the point that he could return to full duty. There are no other records, before or after that date, which indicate that there was any permanent increase in the left knee condition. The Board finds the June 2012 VA examiner’s opinion to be probative on the question of whether the preexisting left knee disorder was aggravated by service. As the examiner explained the reasons for the stated conclusions based on an accurate characterization of the evidence of record, the opinion is entitled to substantial probative weight. As such, the presumption of aggravation is not for application, as there is no evidence of an increase in the disorder during service. The opinion that there was no aggravation beyond the natural course of the disorder reflects that any increase in the severity of the Veteran’s preexisting left knee disorder was clearly and unmistakably due to the natural progress of the disorder. Thus, to the extent that the presumption of aggravation is for application, it has been rebutted with clear and unmistakable evidence. The Veteran has asserted his belief that his left knee disability was aggravated by his active service due to repetitious physical training and exercises and reinjury. Lay statements are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran’s particular disability is the type of disability for which lay evidence is competent. In this case, the Veteran’s lay statements as to whether his preexisting left knee disorder was aggravated beyond its natural progression by service addresses an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. As such, his statements are not competent medical evidence. Further, the reasoned opinion of the trained health care professional who provided the June 2012 VA opinion is of greater probative weight than the Veteran’s more general lay assertions on this question. For the foregoing reasons, the Veteran is not presumed sound as to the left knee disorder for which he is claiming service connection because that disorder was noted at entry into service. Moreover, while there were flare-ups of the left knee disorder during service, the competent evidence shows that the disorder did not increase in severity during service. As the preexisting left knee disorder was not aggravated by service, entitlement to service connection for this disorder is not warranted. The appeal is denied. L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel