Citation Nr: 21063904 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 16-38 091 DATE: October 18, 2021 ORDER Entitlement to service connection for right knee osteoarthritis is granted. FINDING OF FACT The Veteran's right knee disability, diagnosed as osteoarthritis, clearly and unmistakably preexisted service and was worsened by active duty. CONCLUSION OF LAW The criteria for entitlement to service connection for right knee osteoarthritis have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1970 to November 1970. He appeals a January 2015 rating decision denying entitlement to service connection for right knee osteoarthritis. Per his request, the Veteran was afforded the opportunity for a Board hearing in February 2019. He did not appear, arguing that he did not receive notice, and was rescheduled for another BVA hearing in March 2021. The hearing was again rescheduled for August 2021 per the Veteran's request. A letter dated April 26, 2021, informed the Veteran that if he could not attend, he must send a written request to reschedule the hearing at least two weeks before the scheduled hearing and offer "good cause" for rescheduling the hearing. The Veteran did not attend the hearing and has not provided good cause for not doing so. Hence, the Board will proceed with adjudication of the claim. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Service connection may also be established based on aggravation of a pre-existing condition, presuming that the pre-existing condition is shown to have been aggravated beyond natural progression by active service. A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during 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. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting AND not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (2004). In order to support a finding of aggravation, the evidence must establish 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 (Fed. Cir. 2002). 1. Entitlement to service connection for right knee osteoarthritis. The Veteran contends that his preexisting right knee osteoarthritis was aggravated by active-duty service. After a review of the evidence, the Board finds that service connection is warranted. As a matter of background, the Veteran contends that he was discharged from the Marines in February 1970 because of his preexisting right knee condition. Service Department records from March 1971 show that the Veteran had service in the Marine Reserve from November 11, 1969, to February 1970. As this was all inactive service, a DD 214 is not on file and the Board is unable to confirm the details regarding the Veteran's discharge from the Marine Corps. However, the fact that the Veteran was only in the Marine Reserves for a few months prior to discharge tends to support the Veteran's report of events. As an initial matter, the Veteran disclosed at his entrance physical examination that he had a pre-service injury. However, according to his examination report in May 1970, the examiner determined that the Veteran did not have a knee disorder at the time he entered service. Notably, an X-ray performed at that time was negative. Therefore, the Veteran's knee is presumed to have been sound when he entered service. Next, when considering whether this presumption of soundness may be rebutted, the Veteran does not dispute that his right knee osteoarthritis clearly and unmistakably preexisted service. He admits to having pre-service surgery to repair a torn right meniscus. Review of service treatment records confirm as much. In fact, the Veteran was discharged from the Army precisely because his preexisting right knee condition rendered him unfit for active-duty service. However, there is insufficient evidence to conclude that the Veteran's preexisting knee injury was not aggravated by service. As noted above, his knee was observed to be satisfactory when he entered service. It was only after the Veteran began to complain of pain and swelling in the knee during Basic Training that he was determined to be unfit for service. The Veteran asserts that he began to experience novel pain and swelling during Basic Training that has continued to the present. In this regard, the Board observes that the Veteran is competent to describe his ongoing symptoms, in-service duties and his statements are credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this case, the Board finds the Veteran's statements as probative as any negative evidence of record. To be specific, the Veteran has credibly reported the onset of distinct and unfamiliar pain, swelling, and snapping in his right knee during Basic Training that has persisted to this day. In addition, VA has not shown by clear and unmistakable evidence that his right knee osteoarthritis was not aggravated by service. In summary, because VA did not overcome its burden of showing that the Veteran's preexisting right knee osteoarthritis was not clearly and unmistakably aggravated beyond its natural progression during active service, the Board finds that service connection is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel