Citation Nr: 18157055 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 13-00 333 DATE: December 11, 2018 ORDER Entitlement to service connection for a bilateral knee disability is denied. FINDING OF FACT The Veteran’s current bilateral knee disability is not related to his in-service injuries to both knees. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a bilateral degenerative arthritis has not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.012, 3.303, 3.304, 3.306, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from August 1970 to August 1973. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102 and 5103 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2018). VA has complied with the duty to assist in this case. The Veteran has not raised any procedural arguments regarding the notice or assistance provided. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 1. Presumption of soundness 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. Rebutting the presumption of soundness requires a two-part analysis. VA must (1) demonstrate by clear and unmistakable evidence that a disorder preexisted military service and (2) must demonstrate by clear and unmistakable evidence that a preexisting disorder was not aggravated by military service. 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). A Veteran is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003). If VA’s burden is met, then the Veteran is not entitled to service-connected benefits. Conversely, if the presumption of soundness is not rebutted, then the Veteran’s claim is one for service connection. 38 U.S.C. § 1111. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. However, if VA meets its rebuttal standard, then the burden shifts to the Veteran to prove aggravation of the pre-service injury. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). To rebut this presumption, VA must show by clear and unmistakable evidence that the condition pre-dated the Veteran’s service and that the condition was clearly and unmistakably not aggravated during service. 38 C.F.R. §§ 3.304(b), 3.306(b). Previous VA decisions have determined that, as at least relates to the Veteran’s left knee disability, service connection is not warranted, as the Veteran’s disability preexisted service and was not aggravated therein. For the reasons that follow, the Board determines that the Veteran’s claim should not be analyzed under a preexisting disability framework. Here, no defects or infirmities were noted on the Veteran’s enlistment medical examination from August 1970. The presumption of soundness therefore attaches and can only be rebutted by clear and unmistakable evidence of a pre-service disability. There is scant evidence of such a disability, though, and most of it long post-dates the Veteran’s service. Records of the Veteran’s treatment during his period of incarceration noted that the Veteran underwent left knee surgery in January 1969. The severity of his injury at that time, the amount of surgical intervention involved, and the particulars of his recovery have never been made clear. There are no records whatsoever detailing this information. Absent any further information, the Board cannot find that recollections from the Veteran made almost forty years after the fact can serve to establish that he had a preexisting disability, let alone to do so to a clear and unmistakable level. Accordingly, the Veteran’s claim is best analyzed as one for straight service connection and not under an aggravation framework. 2. Entitlement to service connection for a bilateral knee disability is denied. Generally service connection will exist if a veteran can show that they have a current disability, that they suffered an in-service injury or disease, and that the current disability or disease is somehow related to that in-service injury. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Compensation will be paid to eligible Veterans who are disabled by an injury or illness that was incurred or aggravated during active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as opposed to merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service (or during any applicable presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The term “chronic disease” refers to those diseases, such as arthritis. 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a veteran served for at least 90 days during a period of war and manifests arthritis to a degree of 10 percent or more within one year from the date of termination of such service, such disease shall be presumed to have been incurred in or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101,1112; 38 C.F.R. §§ 3.307, 3.309. The first requirement for service connection is that the Veteran must have a current disability. Here, the Veteran underwent a VA Examination in August 2018. The examiner there noted that the Veteran was diagnosed with bilateral knee joint osteoarthritis, with the right being diagnosed in 2005 and the left in 2008. As such, the first requirement for service connection is met. The second requirement for service connection requires the Veteran to have suffered an in-service injury, disease, or event. Here, the Veteran is noted to have twisted his right knee during a ball game in August 1971 when he was in service. A week or so later, the Veteran was kicking a football and fell, hurting his left knee. The Veteran injured both of his knees during the month of August 1971. As such, the second requirement for service connection has been met. The final requirement for service connection is that a nexus exists between the Veteran’s current disability and the Veteran’s in-service injury, disease, or event. In this case, no competent evidence makes such a suggestion. The examiner from the Veteran’s August 2018 VA examination determined that it is less likely than not that the Veteran’s current disabilities are related to his active service. She noted that, at the time of the Veteran’s in-service injuries, bruising and tenderness were noted, but no diagnosis was given. She noted that there was no further evidence of in-service complaints or treatment for knee disabilities, and that the Veteran’s separation examination was normal. The examiner stated that the Veteran did not have complaints of or treatment for a knee injury until 2005, some 32 years after his separation. The examiner stated that the Veteran’s injuries during incarceration, his age-related wear and tear, or a combination thereof were the more likely causes of his current disability. There is no other competent evidence establishing a link between the Veteran’s current disability and his active service. Certainly the Veteran himself makes such a contention, but determining the etiology of arthritis is complex and requires medical knowledge or training. The Veteran’s assertion is thus not considered competent evidence in support of his claim. With regard to service connection on a presumptive basis, there is no evidence in the record that supports a finding that the Veteran suffered from his bilateral arthritis within one year of his separation. As such, service connection for the Veteran’s bilateral arthritis is not presumed. Service connection is also not warranted on a continuity of symptomatology basis. Again, the Veteran contends that he has suffered from knee symptoms since his active service. However, a review of his service treatment records shows that, following his 1971 injuries, the Veteran had no further complaints of or treatment for knee injuries or pain. Further, the Veteran was not found to suffer from any knee disability at the time of his separation. At the Veteran’s 2005 injury during his incarceration, the Veteran did not mention a history of knee pain or state that he had suffered any injuries during his active service that had continued to this day. Under these circumstances, the Board finds that the Veteran’s statements regarding a continuity of symptomatology to be not credible. Service connection is therefore not warranted on this basis. (Continued on next page) Upon careful review of the record, the Board finds that the evidence in this claim for service connection for the Veteran’s bilateral arthritis disability is not, at minimum, in equipoise. As such, entitlement to service connection for the Veteran’s bilateral arthritis disability is not warranted. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. P. Jochem, Associate Counsel