Citation Nr: 21066603 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 17-23 641 DATE: November 1, 2021 ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. FINDING OF FACT The competent evidence shows that the Veteran's left and right knee disabilities clearly and unmistakably existed prior to service and clearly and unmistakably were not aggravated beyond their natural progression during service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1969 to August 1971. These issues come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that during the pendency of the appeal, the accreditation status of the Veteran's representative, Military Order of the Purple Heart (MOPH), changed. The Veteran was notified that MOPH could no longer represent him in his appeal before the Board. The Veteran was afforded the opportunity to appoint a new representative, but he has not elected to do so. Accordingly, the Veteran in this matter is proceeding pro se. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. The Veteran seeks entitlement to service connection for left and right knee disabilities. He has current diagnoses of bilateral osteoarthritis, right knee degenerative joint disease, right knee tendinosis and right knee nerve sheath tumor. He contends these disabilities preexisted his military service and were aggravated by his active duty service more than 50 years ago due to continuous marching, physical training, and other activities that he was required to perform. The presumption of soundness provides that a 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 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). To rebut the presumption of soundness, VA must show by clear and unmistakable evidence that (1) the disease or injury existed prior to service and (2) the disease or injury was not aggravated by service. The claimant 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. VAOPGCPREC 3-2003 (2003), 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304 (b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304(b)(1). Here, a January 1969 entrance Report of Medical History reflects that the Veteran was involved in a May 1967 accident and that he experienced subsequent occasional bilateral knee pain when bending or lifting. It was noted that the Veteran may have had Osgood Schlatter's Disease. However, as the Veteran's enlistment medical examination found no clinical evidence of a left or right knee condition, the presumption of soundness attaches. 38 U.S.C. § 1111. The Veteran's reports of preexisting disability alone, "in the absence of any contention that [he] never made the statements attributed to him," may, however, constitute clear and unmistakable evidence sufficient to rebut the preexistence prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 237-238 (2012) (discussing Doran v. Brown, 6 Vet. App. 283, 286 (1994). Further, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has stated that a medical opinion based on reports of pre-service medical history may rebut the preexistence prong even where there is a lack of recorded history or contemporaneous clinical evidence. Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000). In this case, the Veteran is competent to report having been involved in a May 1967 accident prior to his military service and that he had been experiencing bilateral knee pain resulting from that accident prior to his enlistment into military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4. His reports are credible and entitled to probative weight, as they have been largely internally consistent over several decades. Moreover, after a thorough review of the service treatment records (STRs) and the Veteran's statements as to onset, the December 2021 and April 2021 VA examiners unequivocally found that the Veteran's left and right knee problems pre-existed service. The Board finds that these VA medical opinions and the Veteran's reports, together, constitute clear and unmistakable evidence that rebuts the preexistence prong of the presumption of soundness. Since the Veteran's left and right knee disabilities clearly and unmistakably preexisted service entrance, the remaining question is whether the currently diagnosed left and right knee disabilities clearly and unmistakably were not aggravated by service. Here, other than the January 1969 Report of Medical History, the only other reference to knee problems during service comes in the form of a June 1969 arthrogram of the right knee which revealed a lateral meniscal tear, with possible tip tear in the medial meniscus. The Veteran reported that, following the injury, he was placed on temporary profile. Otherwise, the STRs are silent regarding any complaints, treatment, or diagnoses referable to the left and right knees. A VA opinion was obtained in March 2017. The examiner indicated that the Veteran's current knee disabilities were consistent with aging with no evidence of osteoarthritis in service. Moreover, the examiner noted that the Veteran's right knee meniscal tear during service was consistent with the knee injury prior to service and that the condition had resolved. However, the questions posed to the examiner by the RO did not properly address the criteria for service connection for the issues at hand. Significantly, the examiner did not use the correct standard of clear and unmistakable evidence and the opinion was deemed inadequate for purposes of adjudicating the claims. See October 2020 Board decision. Another VA opinion was obtained in December 2020. After a review of the evidence of record and an in-person evaluation of the Veteran's knees, the VA examiner opined that the Veteran's current bilateral knee disabilities, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by his military service. However, the examiner's opinion only addressed why the Veteran's knee conditions clearly and unmistakably existed prior to his military service. The RO obtained a supplemental medical opinion in April 2021. The April 2021 VA examiner opined that the Veteran's current bilateral knee disabilities, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by his military service. In support, the examiner indicated the following: According to an orthopedic note in June 1969, mentions that the claimant reported pre-existing "R knee derangement," possibly from a previous auto accident or sports injuries that occurred prior to service time. However, further investigation into the claimant's chart does not suggest aggravation of his pre-existing complaints beyond its natural progression while active duty. Instead, medical notes suggest that his pre-existing complaints improved during his in-service time. The claimant attended physical therapy, and per the physical therapy note, the claimant was exhibiting positive progress. In fact, the note suggests that the claimant self-discontinued physical therapy on his own and that all therapy was thus discontinued. Later medical notes from various VA providers well after the claimant's active duty time does not mention claim of persistent or chronic knee pain. There is mention of back pain; however, no additional musculoskeletal issues were noted until most recently. The Board acknowledges that the March 2017 and December 2020 VA examiners did not provide adequate opinions on the etiology of the Veteran's bilateral knee disabilities. Nevertheless, the April 20121 VA examiner clarified that the current bilateral knee disabilities, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond their natural progression by his military service. The April 2021 VA examiner provided adequate supporting rationale for the medical conclusion reached and even indicated that the Veteran's knee conditions improved during his military service to the extent that he discontinued physical therapy. This evidence suggests that the Veteran's preexisting knee conditions did not worsen beyond their natural progression as a result of his military service. Thus, the Board finds the medical opinions expressed by the VA examiners, especially the April 2021 VA examiner, to be of significant probative value. The opinions expressed were based on review of the claims file, in-service and post-service treatment records, and the Veteran's representations. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Prejean v. West, 13 Vet. App. 444 (2000). There are no objective medical opinions of record to the contrary. The only other opinion on the question of aggravation is that of the Veteran. In his written statements, the Veteran essentially indicated that the rigors of his military service aggravated his left and right knee disabilities. The Veteran is competent to testify as to his observations. In addition, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a Veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Veteran is thus competent to state that he experienced left and right knee pain that seemed to have been exacerbated by the rigors of his military service. However, as to the question of whether his left and right knee symptoms in-service constituted aggravation of preexisting left and right knee disabilities, the specific, reasoned opinion of the trained health care provider who conducted the April 2021 VA examination and provided the corresponding medical opinion, based on an analysis of all the evidence of record, is of far greater probative weight than the Veteran's lay observation regarding experiencing aggravated knee symptoms during service. The nexus issue presented in this case requires medical evidence to resolve due its complexity. The only medical evidence of record is against the claim. The Board therefore finds that the evidence clearly and unmistakable indicates that the Veteran's left and right knee disabilities were not aggravated beyond their natural progression during service. The aggravation prong of the presumption of soundness has been rebutted. The presumption of soundness with regard to the Veteran's left and right knee disabilities has therefore been rebutted. As the above analysis also reflects that the preexisting left and right knee disabilities were not aggravated beyond their natural progression by service, entitlement to service connection for left and right knee disabilities is not warranted. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael L. Marcum, 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.