Citation Nr: 20028047 Decision Date: 04/22/20 Archive Date: 04/22/20 DOCKET NO. 17-64 090 DATE: April 22, 2020 ORDER Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran’s right knee disability clearly and unmistakably preexisted active service. 2. The Veteran’s preexisting right knee disability was clearly and unmistakably not aggravated beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from October 2004 to December 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2020. A transcript of the hearing has been associated with the record. Entitlement to service connection for a right knee disability The Veteran contends that his currently diagnosed osteoarthritis of the right knee is related to active service or was aggravated during his period of active service. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). A preexisting disease or injury will be found to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the 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). In this case, the Veteran’s April 2004 entrance examination is silent as to any right knee condition. However, the evidence clearly and unmistakably shows that the Veteran's right knee disability preexisted service. Throughout the period on appeal, the Veteran maintains that he broke his right femur in seventh grade, resulting in the need for surgical repair of the right knee. To that extent, an August 1996 treatment record shows that the Veteran underwent a surgical procedure for post traumatic limb length inequality and right genu varum. The evidence of record also shows that the Veteran was discharged from service in December 2004 due to a history of chronic leg pain post bilateral distal femoral epiphysiodesis for limb length inequality; which was deemed a condition that is disqualifying for active duty service. Finally, a March 2017 VA examiner indicated that the Veteran’s right knee disability clearly and unmistakably existed prior to service. For the reasons stated above, the Board finds that the Veteran's right knee disability clearly and unmistakably preexisted service. Having found that the Veteran clearly and unmistakably had a preexisting right knee disability, the first prong of the presumption of soundness is rebutted. The next inquiry is whether the preexisting disability was clearly and unmistakably not aggravated by service; that is, whether there was not any increase in disability during service beyond the disorder's natural progression or flare-ups. If so, the claim is denied because both prongs of the presumption of soundness would be rebutted. Here, the Board also finds that the evidence clearly and unmistakably shows that the Veteran's right knee disability was not aggravated during service. The Veteran’s STRs show October and November 2004 entries indicating that the Veteran complained of right knee pain that had lasted a week. Notwithstanding documentation related to the Veteran’s December 2004 discharge, the remainder of the Veteran’s STRs are silent as to his right knee. The Veteran testified during his March 2020 hearing that his knee condition was asymptomatic until his knee was “rolled over” during basic training. He further testified that he underwent physical therapy for his right knee immediately following service, but that he was unable to obtain the records as more than 10 years had passed. The Veteran was afforded a VA examination in March 2017. The examiner noted a diagnosis of osteoarthritis of the right knee. The examiner also noted the Veteran’s history of a preexisting right knee condition, his in-service treatment for the right knee, and his report of undergoing physical therapy immediately following service. The examiner indicated that a review of the medical records and a physical examination of the Veteran revealed no evidence that the Veteran’s preexisting knee condition was aggravated beyond its natural progression by the right knee complaints during service. The examiner added that the current diagnosis of osteoarthritis of the right knee is most likely related to the knee injury and repair that occurred prior to service. As is the case here, once the second prong of the presumption of soundness is also rebutted, the claim must be denied as the analysis ends. The Board acknowledges the Veteran's assertion that his preexisting right knee condition was aggravated during service. However, he is not competent to render an opinion on this matter. The Board also notes the Veteran’s contention that his right knee condition was asymptomatic until his in-service injury. However, as cited above evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green, 1 Vet. App. 320, 323 (1991). In this case, the Board finds that the VA examination and opinion provides the most probative evidence of record with respect to any aggravation of the Veteran's preexisting right knee disability. See Guerrieri v. Brown, 4 Vet. App. 467, 470 (1993). The Board finds that this evidence is persuasive and has great probative weight. The medical opinion provides a sound rationale and cites the Veteran’s relevant medical records which support the opinion. For these reasons, the Board finds that the presumption of soundness has been rebutted, and the claim for service connection for a right knee disability must therefore be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Marsh II, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.