Citation Nr: 21066410 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-63 351 DATE: October 29, 2021 ORDER Entitlement to service connection for bilateral leg disability, namely degenerative joint disease of the bilateral knees as a residual of right femur and left tibia fractures, is granted. FINDINGS OF FACT 1. The Veteran's bilateral leg disability clearly and unmistakably existed prior to service. 2. There is insufficient evidence of record to find that the Veteran's pre-existing bilateral leg disability was clearly and unmistakably not aggravated by service. 3. The Veteran's degenerative joint disease of the bilateral knees is a chronic disease and continuity of symptomatology is established. CONCLUSION OF LAW The criteria for service connection for degenerative joint disease of the bilateral knees as a residual of right femur and left tibia fractures are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303(b), 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from October 1951 to January 1952. This matter come before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in June 2018 and May 2021. Entitlement to service connection for degenerative joint disease of the bilateral knees as a residual of right femur and left tibia fractures is granted. The Veteran asserts that his bilateral leg disability pre-existed service and was aggravated thereby during combat training, which raises the issue of whether the presumption of soundness attaches in this case. See July 2016 Affidavit; August 2021 VA examination. A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111; 38C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Board notes that the Veteran's service treatment records (STRs) are unavailable and were likely lost in a fire at the National Personnel Records Center in 1973. See February 2015 Request for Information. Therefore, with respect to the bilateral leg disability, the presumption of soundness attaches, and there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)); Wagner, supra. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin, supra, at 396. Here, there is clear and unmistakable evidence that the Veteran's bilateral leg disability preexisted service. The Veteran himself reports a right femur fracture in 1945 that required surgical repair in 1946, as well as a left proximal tibia/knee joint fracture in 1947 following a motor vehicle accident. See July 2016 Affidavit; August 2021 VA examination report. The Board has no reason to doubt the veracity of the Veteran's statements, as confirmed by the VA examiner, and thus finds that the Veteran's bilateral leg disability clearly and unmistakably preexisted service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any increase in disability [was] due to the natural progress of the preexisting condition." Wagner, 370 F.3d at 1096. This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Here, the Board cannot find that there is clear and unmistakable evidence that the Veteran's pre-existing right and left leg disabilities were not aggravated by service, as the only opinion of record addressing this matter, which is against the claim, is based on a lack of documented treatment of the Veteran's condition in service. Specifically, the August 2021 VA examiner, who acknowledged the Veteran's reports of strenuous training in service, reasoned that there was no aggravation of the condition beyond the normal aging process because "there was no injury reported [and] no indica[]t[i]on of any worsening of a condition that already existed." The examiner's logic is absurd, given that the Veteran's STRs were lost or destroyed while in VA custody, and therefore this opinion is of no probative value. Moreover, the notation in the Veteran's personnel records that the Veteran's condition "existed prior to entry" and was "not incurred in a period of active military duty," as well as the notation on his DD Form 214 that his disability "exist[ed] prior to entry on active service and not aggravated by military service," cannot constitute evidence of a lack of aggravation. See Horn, supra (an unexplained medical examination board report, which contained an "X" indicating that the condition had not been aggravated by active duty, did not constitute clear and unmistakable evidence of lack of aggravation). Thus, the second prong to rebut the presumption of soundness is not met, the Veteran is presumed sound at service entry, and the case becomes one for direct service connection. Wagner, supra. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an 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 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including degenerative joint disease (arthritis), that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. 38 C.F.R. § 3.303(b). Regarding element one of direct service connection, current disability, the Veteran has been diagnosed with degenerative joint disease of the bilateral knees as a residual of his right femur and left tibia fractures. See August 2021 VA examination report. Regarding element two, the Veteran's service personnel records note "internal derangement of the knee" in January 1952 for which he was ultimately discharged from service. The knee involved was not identified. Moreover, the Veteran reports injury to both of his knees from marching while carrying full gear during combat training, which the Board finds competent and credible. Thus, the first two elements of service connection are met, and the crux of the claim centers on element three, or nexus. There is no competent medical opinion of record of record addressing this issue, but one is not needed, as the Veteran has competently and credibly reported continuity of bilateral knee symptomatology since service. See August 2021 VA examination report (noting Veteran's report of his bilateral knee symptoms progressively worsening since service). Moreover, there is no indication in the record of any intercurrent cause of the Veteran's arthritis. Thus, for reasons outlined above, service connection for degenerative joint disease of the bilateral knees based on continuity of symptomatology is established. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. J. Rogers, 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.