Citation Nr: 18151076 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 15-03 959A DATE: November 16, 2018 ORDER Entitlement to service connection for right knee disability is granted. FINDING OF FACT The Veteran’s current right knee disability is related to service. CONCLUSION OF LAW The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1131, 1154; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 27, 1983 to October 5, 1983 and from March 5, 1985 to August 5, 1988. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge on his February 2015 substantive appeal (VA Form 9). He withdrew his hearing request in July 2017. Preliminarily, the Board of Veterans’ Appeals (Board) notes that the issue of entitlement to service connection for a right knee disability has been previously denied by the Department of Veterans Affairs (VA) Regional Office in an unappealed rating decision from August 1993. While new and material evidence is generally required to reopen previously-denied claims, when additional relevant service department records are received, a prior determination as to a claim for service connection is not final. 38 C.F.R. § 3.156 (c). Here, it appears that relevant military personnel records showing a presumptive finding of a line-of-duty injury of the right knee, not of record at the time of the original denial, were subsequently submitted by the Veteran and associated with the record. Accordingly, this claim is not properly classified as a new and material evidence claim. Entitlement to service connection for right knee disability Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1131. Service connection generally requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship, i.e., nexus, between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (1995). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran is considered to have been 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 or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The Veteran’s January 1985 entrance examination report does not list a right knee disability; therefore, the presumption of soundness on entry to service attaches. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, when the presumption of soundness applies, the Veteran is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). With respect to the presumption of soundness, while the Veteran’s service treatment records from April 1985, May 1986, and July 1987 reflect Veteran’s statements to treating physicians that he experienced some right knee symptoms prior to service, there is no medical evidence that the Veteran had a right knee disorder prior to service, and no right knee disorder was noted on the Veteran’s entry into service. The Board also notes that complaints of right knee symptoms are present in the Veteran’s service treatment records and service personnel records in multiple entries spanning from 1985 through 1988. Accordingly, the Board finds that VA has not shown by clear and unmistakable evidence that the Veteran’s right knee condition both pre-existed service and was not aggravated during service. Accordingly, the presumption of soundness has not been rebutted and the claim is one for direct service connection rather than aggravation of a pre-existing disability. The Veteran’s post-service medical records contain evidence that his right knee condition has required over eight surgeries, including total right knee replacements in 2008 and 2013. The Veteran continues to be hindered due to his ongoing knee pathology. The Veteran must use a cane to walk and his private doctor recommended he should be placed on permanent disability in 2013 due to his right knee injury. Veteran has been diagnosed with progressively worsening osteoarthrosis of the right knee. Accordingly, the current disability element is established. The Veteran sought treatment for right knee pain at least six times during his military service caused by running and squatting. The Veteran also reported that he injured his right knee in a tank accident. Further, in June 1988 the Army Physical Evaluation Board found Veteran physically unfit for service due to his right knee disability which was incurred or aggravated in the line of duty. Therefore, the Veteran has established an in-service injury regarding his claim for service connection for his right knee. Thus, the dispositive issue is whether the Veteran’s current right knee disability is related to service. The Veteran’s VA examination of September 2014 provided an ambiguous opinion regarding the nexus of the Veteran’s current right knee disability to the Veteran’s in-service right knee injury. The VA physician opined the Veteran’s condition was less likely than not incurred in or caused by the claimed in-service injury. However, the VA physician also stated it seems the Veteran had a previous football injury that would have been aggravated beyond its natural course due to the rigorous military schedule. Regarding the introduction of the Veteran’s pre-service football injury, it must be noted that “…statements of veterans relating to the origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and effect if other data do not establish the fact.” 38 C.F.R. § 3.304(b)(3). Given that there is no other data or medical records establishing the fact that Veteran had a pre-service football injury, the Veteran’s own statement regarding this fact has no force or effect. Id. Since the VA physician premised his opinion on Veteran’s own statement concerning a pre-service football injury to his right knee, the Board finds this opinion is based on a false premise, and as such, accords it minimal probative weight. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (recognizing the Board's “authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence”). Veteran’s entrance examination conducted on March 5, 1985 does not report a pre-existing right knee issue. The Veteran sought treatment for right knee pain over 6 times during his military service. Further, in June 1988 the Army Physical Evaluation Board found Veteran physically unfit for service due to his right knee disability which was incurred or aggravated in the line of duty. Considering the Veteran’s service treatment records, VA and private treatment records, lay statements, and the medical opinions of record, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s current right knee disability was at least as likely as not incurred in or caused by active service and has persisted since service. Therefore, the Board finds that service connection for right knee disability is warranted. 38 U.S.C. §§ 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. St. Laurent