Citation Nr: 21066635 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-24 027A DATE: November 1, 2021 ORDER 1. Entitlement to service connection for a left knee disability is denied. 2. Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. The Veteran's left knee disability preexisted the Veteran's second period of active duty and did not increase in severity beyond its natural progression during his active service. 2. The Veteran's right knee disability preexisted the Veteran's second period of active duty and did not increase in severity beyond its natural progression during his active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1153 (2012); 38 C.F.R. §§ 3.303 (a), 3.306 (2020). 2. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1153 (2012); 38 C.F.R. §§ 3.303 (a), 3.306 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran service on active duty from March 1971 to July 1971, as well as from January 1991 to May 1991. The Veteran was also a member of the Army National Guard from October 1970 through January 1997 and had periods of ACDUTRA and INACDUTRA during that service. These matters come before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In April 2021, the Board remanded this matter for further development. Service Connection Entitlement to service connection for a bilateral knee disability is denied. Service connection may 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. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A Veteran is presumed in sound condition when entering service except for defects noted when examined and accepted for service. 38 U.S.C. § 1111. When a pre-existing disability is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In this circumstance, 38 U.S.C. § 1153 applies and the burden falls on the Veteran, not VA, to establish an increase in severity. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Independent medical evidence generally is needed to support a finding that a pre-existing disorder increased in severity during service beyond its natural progression. See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with its mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Here, the Veteran asserts that his preexisting bilateral knee disability was permanently aggravated by his second period of active duty service. In particular, he indicates that the physical training he was required to do while on active duty worsened his knee disability. Accordingly, he believes service connection is warranted. Service treatment records documented the presence of osteoarthritis of the knees with a history of torn cartilage at the beginning of the Veteran's second period of active duty in January 1991. See Record of Medical Care dated January 7, 1991. Service records from the early part of the second period of service also indicate that the Veteran presented for medical care with complaints of recurrent knee pain that had a 20-year history. He was assessed as having retropatellar pain syndrome. He was excused from physical training for 5 days, and permitted to run at his own pace for a period of 25 days. See Note of Acute Medical Care dated January 22, 1991. Knee complaints are again documented in February 1991 and May 1991. Records from May 1991 continued to characterize the complaints as patella-femoral syndrome, which was considered to have existed prior to this period of service. At that time, the treatment provider noted that the condition had been aggravated by service. Following active duty, in a December 1991 Report of Medical History, the Veteran reported his knees were still painful. Additionally, in a June 1995 Report of Medical History, he indicated he had painful and swollen joints. However, this report was not explicitly identified as referring to the knees. At that time, he denied having a "trick or locked knee" and he affirmatively stated he had no medical waivers or profiles. The lower extremities were normal on clinical evaluation at the time of a June 1995 examination. Post service treatment records show the Veteran was diagnosed with a right knee medial meniscus tear, as well as right chondromalacia of the medial femoral condyle in early 2002. Records from 2009 reflect diagnoses of a right knee meniscal tear, arthritis, and patellofemoral degenerative joint disease. The Veteran had a total right knee replacement in 2011. The July 2021 VA examination report noted a diagnosis of osteoarthritis of the left knee. During the November 2020 Board hearing, the Veteran testified that he experienced knee problems prior to his second period of active duty. He asserted that the physical training during this period aggravated his bilateral knee disability and resulted in continuous symptomatology following service. The Veteran underwent a VA examination in July 2021. After a review of the claims file, an in-person interview, and a complete examination, the examiner opined that the knee disabilities clearly and unmistakably existed prior to service. He further concluded that these disabilities were clearly and unmistakably not aggravated beyond their natural progression by an in-service injury, event, or illness. The examiner noted that the in-service knee complaints in 1991 were the result of running activities. He further explained that these in-service knee conditions were acute, resolved following the cessation of physical activity, and did not have any residual symptomatology. He reasoned that there was no objective evidence to suggest that the knee disabilities were accelerated beyond their natural progression and noted the lapse in reports of symptomatology for many years. Instead, the examiner determined that the Veteran's post-service knee disabilities were representative of progressive degenerative wear and tear joint changes that are associated with the natural aging process. In sum, the Veteran's left and right knee disabilities were noted at the beginning of his second period of active duty service. However, these disabilities did not increase in severity beyond their natural progression during service. The service treatment records do not suggest a worsening or aggravation beyond the natural progression of the conditions. Indeed, the May 1991 treatment provider did not conclude that the noted aggravation of the knees was permanent or beyond the natural progression of such conditions. Additionally, the June 1995 treatment record regarding painful joints does not appear to refer to the knees, as the Veteran simultaneously denied problems with his knees and lower extremities. And, there is no evidence of treatment or complaints related to either knee between December 1991 and early 2002. As such, The Board finds the in-service complaints and treatment involving the knees to be indicative of intermittent flare-ups, which do not rise to the level of permanent aggravation. Further, the Board places great probative value on the opinion provided by the July 2021 VA examiner. The examiner noted the pre-service knee conditions and determined that the in-service knee complaints were acute in nature and resolved without residuals. He went on to attribute the post-service knee complaints to degenerative changes and the natural aging process. Thus, given these facts, the examiner opined that the Veteran's bilateral knee disability was clearly and unmistakably not aggravated beyond its natural progression during the second period of active duty. The examiner reviewed the claims file, to include the Veteran's contentions, his service treatment records that documented in-service knee complaints, post-service treatment records that documented treatment for the knees beginning in 2002, and conducted a complete physical examination. As such, the opinion was based on an accurate and complete factual premise. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); also see Stefl v. Nicholson, 21 Vet. App. 120 (2007). Therefore, the Board accords great probative weight to July 2021 VA examiner's opinion. There is no contrary medical opinion of record on this question. Thus, the medical evidence does not support a finding that the Veteran's preexisting left and right knee disabilities were aggravated beyond their natural progression during or due to the Veteran's active service. With regard to the contentions of the Veteran, the Board notes that the Veteran is competent to describe the current symptoms of his bilateral knee disability. However, he is not competent to offer an opinion as to whether his military service aggravated the left and right knee disabilities beyond their natural progression. The questions related to aggravation involve a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, the Board finds that the impact, if any, of the Veteran's activities during his military service on his pre-existing knee disabilities is a complex medical question, as it requires the knowledge of the musculoskeletal system. The Veteran is not shown to have the medical knowledge or training to make such complex medical determinations. Therefore, it is outside the competence of the Veteran. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Finally, the Board has found that the Veteran's left and right knee disabilities preexisted the Veteran's active service. The presumption of soundness, therefore, does not apply and a direct service connection analysis is not warranted. The Board notes the Veteran expressly indicated that he was seeking service connection on the basis of aggravation in the May 2016 VA Form 9. (Continued on the next page) For the foregoing reasons, the Veteran's claims for service connection for left and right knee disabilities must be denied. The Board has duly considered the benefit-of-the-doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims, so that doctrine is not applicable. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Erin J. Trojanowski, 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.