Citation Nr: 21070204 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-39 634 DATE: November 23, 2021 ORDER Service connection for a left knee disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, his pre-existing left knee disability was aggravated beyond its natural progression during his active duty. CONCLUSION OF LAW The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1131, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1986 to January 1994. In October 2018 and June 2021, the Board of Veterans Appeals (Board) remanded this appeal for further evidentiary development. Service Connection Left Knee Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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 present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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). With regard to the existence of a preexisting condition, to be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). If a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but he/she may bring a claim for service-connected aggravation of that disorder. In such cases, the burden falls on the veteran to establish aggravation. If the presumption of aggravation is applicable, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). A preexisting injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). 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). "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Furthermore, a layperson is competent to report on the onset and history of his or her current symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence as to the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is undisputed that the Veteran had a preexisting left knee disability upon his entrance into active service. At his March 1986 entrance examination, he reported that he had injured in left knee in 1985 and continued to experience recurrent left knee problems. Thus, the issue before the Board is whether his active service aggravated his pre-existing left knee disability beyond its natural progression. Additional service treatment records note that the Veteran was sent for X-rays and an orthopedic consultation for his left knee. These records state that the Veteran reported occasional feeling of his left knee coming out, but there was evidence of no locking, giving way, or swelling. Left knee X-rays were within normal limits and showed no significant pathology. Thus, the Veteran was found fit for duty without restriction. During service, in 1989, he was treated for a left knee injury. At separation, he reported a "trick or locked" knee but did not identify which knee. Post-service, there are no records of any left knee issues until May 2013. At a VA primary care visit in May 2013, the Veteran reported that he has been experiencing chronic left knee pain since his active duty. In a July 2016 written statement, he reported that he had re-injured his left knee during service, which caused his preexisting left knee injury to worsen. During the course of this appeal, the Veteran has been afforded VA examinations in September 2014 and October 2019. However, for reasons discussed in the previous Board remands, the Board found these examinations to be inadequate. Therefore, they will not be discussed at length in this decision. At a July 2021 VA examination, the Veteran reported that he re-injured his left knee during service and that he now has chronic intermittent left knee pain and sometimes experiences a "sliding out" sensation. He reported experiencing functional impairment with running, squatting, climbing steps, walking, and standing. The examiner confirmed the Veteran's diagnosis of left knee strain but opined that this disability, which clearly and unmistakably preexisted service, was not aggravated beyond its natural progression by his active service. The examiner referenced the lack of medical records showing chronic left knee issues during, and after, service. While the Board cannot ignore or disregard the VA examiner's medical conclusions, the Board is free to assess medical evidence and is not compelled to accept a medical opinion. Willis v. Derwinski, 1 Vet. App. 66 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). Here, the Board finds the July 2021 opinion is inadequate, as it relies solely on the absence of treatment records for any chronic left knee disability during and after service, and it fails to address the Veteran's lay statements as to the onset and continuity of his left knee pain. While the examiner noted that the Veteran reported experiencing chronic left knee pain at a VA primary care visit in May 2013, the examiner failed to address the Veteran's lay statements that he has been experiencing chronic left knee pain since service. Further, the examiner did not discuss the Veteran's report of re-injuring his left knee during service. Thus, the opinion is inadequate, and the Board affords it no probative value. See Dalton v. Nicholson, 21 Vet. App. 23, 40 (2007) (finding examination inadequate where the examiner relied on lack of evidence in medical records and did not address veteran's lay statements). Given the above, the Board finds that VA has not met its burden of demonstrating by clear and unmistakable evidence that the Veteran's left knee disability was not aggravated by his active service. The Veteran's left knee disability was shown to preexist his active service, and his competent lay statements suggest that his left knee disability was aggravated beyond its natural progression by his service. Thus, it cannot be said that the evidence is "undebatable." Therefore, resolving any reasonable doubt in favor of the Veteran, service connection for his left knee disability is granted. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.