Citation Nr: 21066192 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 17-34 508 DATE: October 28, 2021 ORDER Service connection for a left knee disability is denied. FINDING OF FACT The Veteran's left knee disability clearly and unmistakably preexisted a period of service, and the Veteran's left knee disability clearly and unmistakably was not aggravated by a period of service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304; 3.307; 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from October 1961 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board in August 2019, and a transcript of the hearing is of record. This matter was previously before the Board, and, in November 2019, June 2020, and December 2020. Additional development in substantial compliance with the Board's previous remand instructions has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a left knee disability is denied. At issue is whether the Veteran is entitled to service connection for a left knee disability. The weight of the evidence indicates that the Veteran is not entitled to service connection. In seeking VA disability compensation, a Veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for chronic diseases like arthritis, when manifested to a compensable degree within a year of separation from service. 38 C.F.R. §§ 3.307, 3.309. As a rule, 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(b). Assuming the presumption of soundness has attached, the burden then shifts to the VA to rebut the presumption of soundness. To rebut the presumption of soundness, the VA must show that (1) the condition clearly and unmistakably existed prior to service; and (2) the condition clearly and unmistakably was not aggravated during service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran testified at a personal hearing before the Board in August 2019. The Veteran claimed that he was diagnosed with one leg being shorter than the other in 1963. The Veteran also indicated that he was in a car accident during a period of service, and that this led to a knee injury. See Transcript. The Veteran's service treatment records indicate that upon being examined, inducted, and accepted into service the Veteran was not diagnosed with a left knee disability. The Veteran's service treatment records do document a motor vehicle accident that led to left knee abrasions as well as a left knee discrepancy in May 1963. The Veteran also sought treatment for left leg pain. During an examination upon separation from service however, the Veteran was not diagnosed with a left knee disability. The Board previously remanded this matter in November 2019 in order to provide the Veteran with a VA examination to consider among other things the Veteran's leg length discrepancy. In January 2020, the examiner was provided a medical opinion, but the examiner indicated that he was unable to discuss the medical significance of the Veteran's leg length discrepancy unless the Veteran was provided a VA examination that included completed a hip disability benefit questionnaire. The matter was returned to the Board without provide the Veteran such an examination. In June 2020, the Board remanded this matter for a new VA examination. In particular, the RO was instructed to take all steps necessary to collect data necessary to render an opinion to include if necessary providing the Veteran with a Hip Disability Benefits Questionnaire or any other Disability Benefits Questionnaire required to render an opinion. The Veteran was provided a VA medical opinion in September 2020. The examiner indicated that a Hip Disability Benefits Questionnaire as well as additional radiological evidence was required to render an opinion. Nevertheless, neither of these pieces of evidence were obtained, and a medical opinion was made based on the evidence of record. The Veteran underwent a VA examination in April 2021. The examiner opined that the Veteran's left leg discrepancy clearly and unmistakably preexisted a period of service and clearly and unmistakably was not aggravated by a period of service. The examiner indicated that the Veteran's treatment records are silent for documentation of typical causes of acquired leg length discrepancy such as leg fractures or surgeries; and, as a result, the Veteran's leg length discrepancy must have preexisted a period of service. The examiner also note that the Veteran's condition remained unchanged not only through his period of service but for several decades thereafter; thus concluding that the Veteran's leg length discrepancy was not aggravated by service. The weight of the evidence indicates that the Veteran is not entitled to service connection. As discussed above, the Veteran's claim for a left knee disability is based on symptomology caused by the Veteran's left leg discrepancy. The Veteran's left leg was evaluated as normal upon entering service, and, therefore, the Veteran is entitled to a presumption of soundness. This presumption, however, has been rebutted by the evidence of record. An April 2021 VA examination notes that the Veteran's left leg discrepancy must have preexisted service, because the Veteran's treatment records are silent for the causes of an acquired leg length discrepancy; such as fractures or a surgery. Additionally, the Veteran's left leg was evaluated as normal upon separating from service. Therefore, it is obvious or manifest that regardless of any symptoms that the Veteran may have been experiencing due to a left leg discrepancy they were not aggravated by service. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is not entitled to service connection for a left knee disability. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to service connection for a left knee disability is denied. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David R. Seaton, 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.