Citation Nr: 21068032 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 18-32 074 DATE: November 8, 2021 ORDER Entitlement to service connection for degenerative joint disease (DJD) of the right knee (right knee disability) is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran's right knee disability is related to service. CONCLUSION OF LAW The criteria for service connection for right knee disability are met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3.307, 3,309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1979 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. 1. Right knee disability The Veteran contends that his right knee arthritis is related to service. Specifically, he contends that his right knee was aggravated by basic training. See October 2013 VA Form 21-526EZ; see also August 1979 Correspondence. A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137; 38 C.F.R. § 3.304. The presumption of soundness 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 provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted on entry into service, a veteran is presumed sound upon entry. The burden then falls on the Government to rebut this presumption of soundness by clear and unmistakable (obvious or manifest) evidence that the veteran's disability was both preexisting and not aggravated (ie. increased in severity beyond its natural progression) by service. If this burden is met, then the veteran is not entitled to service connection benefits. However, if the Government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The report of the Veteran's February 1979 physical examination for service entrance states that the Veteran's lower extremities were normal. The examiner indicated only that the Veteran had a "scars," on his right knee and explicitly indicated that the Veteran passed his enlistment physical. See February 20, 1979 Enlistment Examination. No right knee abnormality was diagnosed or otherwise identified. Therefore, the presumption of soundness as to the right knee attaches. 38 U.S.C.A. § 1111; 38 C.F.R. § 304(b). Clear and unmistakable evidence (obvious and manifest) has not been obtained that the Veteran's right knee disorder both preexisted and were not aggravated by service. On his February 1979 report of medical history, the Veteran indicated he had trick or locked knee, prior knee surgery but cleared by his doctor to enlist. See February 1979 Report of Medical History. A May 1979 service treatment record (STR) states the Veteran had right knee pain for five days and that it bothers him during strenuous exercise. The examiner noted slight ligament instability, crepitus, slight effusion and diagnosed him with a slightly unstable joint. See STR dated May 1, 1979. On May 4, 1979, the Veteran reported to sick call with right knee pain. The examiner noted right knee edema, red discoloration, full range of motion (ROM) and pain with palpation. See STR dated May 4, 1979. On May 11, 1979, the Veteran complained of right knee pain and stated that he could not keep up with the company. He was evaluated and given a 1- to 2-week rest. See STR dated May 4, 1979. A May 8, 1979 STR noted complaints of right knee pain and painful ROM. He was referred for a medical evaluation and given light duty for 24 hours. An evaluation diagnosed a possible ligament tear, recommended light duty and referral to orthopedics. A May 9, 1979 STR indicates ongoing knee treatment and complaints. In September 1979, the Veteran applied for service connection for his right knee. Given his entrance physical examination indicates no knee disorder and given that he was diagnosed with a right knee disorder in service, there is no clear and unmistakable evidence his right knee disorder both preexisted and was not aggravated by service. Further, there is no indication of a right knee disorder between enlistment and May 1979. The Board concludes that the presumption of soundness has not been rebutted. See Wagner, 307 F.3d at 1096. Service connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a Veteran 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 two. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Arthritis is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the provisions of 38 C.F.R. § 3.303 (b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For a showing of "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a "continuity of symptoms" after service is required to establish service connection. 38 C.F.R. § 3.303(b). Additionally, as a chronic disease, arthritis will be considered incurred in or aggravated by service if the disease becomes manifest to a compensable degree within one year from the date of service separation. 38 C.F.R. § 3.307(a)(3). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, STRs indicate his right knee pain began and gradually worsened while in physical training three months into active service. VA conceded that he has right knee arthritis and that he was evaluated in service for a right knee pain. See March 2014 Rating Decision, pg. 2. The rating decision denied service connection stating that the Veteran's right knee condition predated service. In so doing, it relied on a 1979 medical board review which diagnosed a preexisting right knee disorder and recommended discharge. However, the opinion incorrectly stated that the entrance examination showed a history of right knee surgery and did not opine if his right knee pain was related to service. As noted, the government has not rebutted the presumption of soundness. Thus, his disorder did not preexist service making the opinion inadequate and of no probative value. Weighing in the Veteran's favor are two positive nexus opinions. One from J.-G. N., Physician Assistant, VA Orthopedics, stating the Veteran's service contributed to his right knee arthritis. See J.-G. N. Opinion, February 27, 2013. In 2018, Dr. J.P. opined that the Veteran's right knee arthritis was more likely than not caused or aggravated by service. See Dr. J.P. Opinion, dated May 8, 2018. The Veteran consistently and competently stated his right knee pain began in service and continued to the present. See September 1979 and April 2010 and May 24, 2011 Statements in Support of Claim; see also Buddy Statements, R.J.H., and P.C.H., dated June 1, 2010 and June 10, 2010, respectively. The Veteran has presented a credible history of right knee pain since service. He is competent to report that his right knee pain began in service and continued to the present. STRs indicate complaints and treatment for right knee pain. VA treatment records and the Veteran's statements indicate symptoms and treatment since that time. A March 2010 VA right knee X-ray study report indicated severe arthritis, degenerative joint disease. A May 2018 private medical opinion states his right knee arthritis was caused or aggravated by service. Therefore, the evidence is at least in equipoise; the benefit of the doubt is for application. The claim is granted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, 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.