Citation Nr: 18153635 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-54 216 DATE: November 28, 2018 ORDER Service connection for a right knee disability is granted. FINDINGS OF FACT 1. The Veteran’s right knee was noted to be status post arthroscopic partial meniscectomy on examination in June 1986, prior to entrance into service. 2. The Veteran injured his right knee on November 2, 2013 during an Army Physical Fitness Test, which occurred during a period of inactive duty training (INACDUTRA). 3. Following separation from service, the Veteran was diagnosed with history of partial meniscectomies (1982); and persistent ongoing chronic right knee pain due to military-related fitness injury occurring on November 2, 2013. 4. The worsening of the Veteran’s right knee disability has been attributed to his military service; the evidence does not clearly and unmistakably show that the worsening was due to the natural progression of the disability. CONCLUSION OF LAW The criteria for service connection for right knee disability are met. 38 U.S.C. §§ 101, 1110, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to September 1991, with additional Reserve service. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Entitlement to Service Connection for a Right Knee Disability The Veteran contends that his right knee condition was aggravated as a result of military service, such that he is entitled to service connection. He asserts that upon entry into the military he disclosed a preexisting right knee condition and during his 29-year period of active service he “suffered several aggravations” of the right knee disability. After reviewing the record, the Board concludes that the right knee disability that was noted on entrance into service was aggravated during a November 2013 period of inactive duty training, such that service connection for a right knee disability is warranted. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306; Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C. §§ 101, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. The term “active military, naval, or air service” means active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); Biggins, 1 Vet. App. at 477-78. A Veteran is presumed in sound condition when entering service except for defects noted when examined and accepted for service. 38 U.S.C. § 1111. When a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C. § 1153 applies and the burden falls on him, not VA, to establish an increase in severity. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). 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 specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered “aggravation in service”, unless the underlying condition, itself, as contrasted with its mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded 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; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The claims file verifies a right knee injury during the Veteran’s Reserve service. A March 2014 Statement of Medical Examination and Duty Status documented that the Veteran injured his right knee on November 2, 2013. The report documented detailed the injury as “2 mile run and popping in the right knee.” A January 2015 Statement of Medical Examination and Duty Status documented a follow-up examination for knee injury. An MRI report revealed “Right Knee Meniscal Tears w/ Osteoarthritis.” The report recorded the Veteran’s report of hearing a “pop” in his right knee as he was running. The examiner stated “[t]his injury is an exasperation of a pre-existing Right Knee Meniscal Tears that Occurred in 2009.” In October 2015 correspondence, Dr. C.T.B. diagnosed the Veteran with osteoarthritis of the right knee with the right knee effusion and iliotibial band syndrome. Dr. C.T.B. opined that there is a “reasonable medical probability that Mr. David B. Wallace has a chronic service-connected aggravation of the underlying osteoarthritis in his right knee. For his assessment, Dr. C.T.B. reviewed the Veteran’s medical records dating back to 1986, and found that that “there were several instances where his right knee has been aggravated by his military service.” The Veteran was afforded a VA examination in August 2015. The examination report documented the following diagnoses: right knee meniscal tear (December 2009), right knee anterior cruciate ligament tear (December 2009), right knee joint osteoarthritis (August 2015), and right knee tibiofibular joint fusion (August 2015). The examiner stated that the Veteran’s medical records documenting a pre-service injury were not available at the time of the examination. “It is acknowledged that his current state of arthritis is moderate to severe, and he is likely to have an eventual knee replacement.” The examiner characterized the progression of the knee condition as “expected.” The examiner concluded that “[i]t is more likely that his time out of the service coupled with his middle-age is the reason that he has the current state of his right knee.” A December 2016 Initial Orthopedic Evaluation documented an impression of status post prior arthroscopy with a history of partial meniscectomies (1982); and persistent ongoing chronic right knee pain due to military-related fitness injury occurring on November 2, 2013. A December 2009 MRI revealed residual anterior horn markedly irregular, consistent with either postsurgical changes or tearing; abnormal morphology and signal along the posterior horn and body of the medial meniscus, consistent with degenerative tearing; and moderate-to-severe tricompartment osteoarthrosis with multiple areas of complete cartilage loss; and complete chronic tear of the anterior cruciate ligament and partial ligament resorption. Following examination of the right knee and review of the Veteran’s medical history, Dr. G.C.R. opined that “more likely than not, his requirement in the military to remain fit and strong are responsible for 5% or greater of the patient’s condition.” The examiner stated that “[i]t is well known, in the medical literature, that meniscectomy alone can produce a progressive form of degenerative arthritis, but is variable as to the propensity and to the type of injury and surgery.” In the Veteran’s circumstance, the examiner explained that the Veteran endured “strenuous physical activities” as part of his military duties. The Veteran reported that he was able to tolerate these activities absent flare-ups until the 2013 injury. The Board finds Dr. G.C.R.’s medical opinion to be more probative than that of the VA examiner because it provides greater detail and reasoning. Also, Dr. Logsdon’s opinion is based on a thorough examination of the Veteran and the Veteran’s claims file. The Veteran’s long history of treatment within the VA medical system lends additional support to aggravation of preservice disability. Therefore, the Board finds that service connection for a right knee is disability is warranted. The Board affords the VA examination little probative weight because since the examination the Veteran’s claims file has been supplemented with highly relevant medical records, including Dr. G.C.R.’s Initial Orthopedic Evaluation. Further, the August 2015 VA examiner did not address or discuss whether the Veteran’s documented November 2013 reserve service injury aggravated his pre-service right knee condition. Stefl v. Nicholson, 21 Vet. App. 120 (2007). In contrast, Dr. G.C.R.’s opinion is highly probative because he provided a thorough examination of the Veteran and reviewed the Veteran’s medical history since 1986, noting specifically the Veteran’s pre-service meniscectomy and the November 2013 injury. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (stating that “probative value of medical[-]opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches”). S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD I. Altendorfer, Associate Counsel