Citation Nr: 21071012 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-29 174 DATE: November 29, 2021 ORDER Entitlement to service connection for left knee disability, to include based upon aggravation of a pre-existing disability, is denied. Entitlement to service connection for right knee disability, to include based upon aggravation of a pre-existing disability, is denied. FINDINGS OF FACT 1. The Veteran had a bilateral knee disability noted upon entry to service. 2. The most probative evidence of record does not suggest her left or right knee disability that preexisted service was aggravated by service. 3. The most probative evidence of record clearly and unmistakably supports that any increase in the Veteran's preexisting knee disability was the result of natural progression. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from January 1986 to May 1989. This case is before the Board of Veterans' Appeals (Board) from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at a January 2020 hearing. In February 2020, the Board found new and material evidence had been received since the prior and final June 1991 rating decision. The petition to reopen these claims was granted and they were remanded to the RO for additional development. Although additional development was completed, the addendum opinions obtained were not adequate. These claims were again remanded in January 2021. Finding there has been substantial compliance with the Board's remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. 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. §§ 1110, 1131, 5107; 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). 1. Left knee disability. 2. Right knee disability. The Veteran contends that her left and right knees were injured during service as a result of lifting patients, and that her left knee was injured during an automobile accident in 1988. She indicated that she obtained treatment for her knees after service, in 1989, and continued to have problems. The Veteran has a current diagnoses of bilateral knee degenerative arthritis, and left knee calcified tendonitis (4/27/2016 C&P Exam, pgs. 2 and 3). These diagnoses meet the first element for service connection. However, before the Board can address direct service connection, the Board must consider the Veteran's entrance physical, and noted preservice knee conditions. A review of the Veteran's service treatment records reveals knock knees noted in the summary of defects and diagnoses on her entrance examination (12/14/1990 STR Medical, pg. 23). A March 2021 addendum opinion addressed the Veteran's knock knees (03/16/2021 C&P Exam). The examiner explained the diagnosis of degenerative changes noted in 2016 is a natural progression of knock knees, noted on entrance examination. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The medical evidence of record weighs in favor of a finding that the Veteran has a preexisting bilateral knee disorder that was noted upon entry. As such, the Veteran cannot bring a claim of service connection for her bilateral knee disorder on a direct basis. The Veteran may, however, bring a claim for service-connected aggravation of her knee disorders. Accordingly, the Veteran's claims have been recharacterized to include service connection based upon aggravation of a pre-existing disability. Here, because 38 U.S.C. § 1153 applies, the burden falls on the Veteran to establish an increase in her bilateral knee disability during service. During a November 2006 examination, the Veteran recollected that her knee pain began in 1988 after the in-service MVA and later that year her knees were injured while working as a nurse. She was noted to be a fair historian by the physician at that time (03/13/2020 Medical Treatment Records - Furnished by SSA, pg. 142). The Veteran testified during her hearing that prior to service she did not have issues with her knees, and that her knees were injured lifting a patient during service (01/13/2020 Hearing Transcript, pgs. 4 - 5). A review of the Veteran's service treatment records reveals medical evidence consistent with her statements and testimony. At entrance, her knock knees were not found to disqualify her from service. She did not complain of trick or locked knees upon entry in September 1985 (12/14/1990 STR Medical, pgs. 23 and 24). During service, in July 1987, the Veteran was treated for patella femoral pain and left knee pain that started after lifting a patient (12/14/1990 STR - Medical, pg. 31, 33, 87). A July 1987 x-ray of the left knee included a normal finding (12/14/1990 STR Medical, pg. 34). In March 1988, the Veteran was treated after an automobile accident. A left knee abrasion was noted (12/14/1990 STR - Medical, pg. 84). The Veteran's December 1987 physical includes a note that she wore a brace on her left knee in 1987 for 2 weeks due to injury sustained in hospital. Treatment included physical therapy and Motrin. Although it was noted that the Veteran still felt slight pain in her knee when doing excessive walking, the examiner indicated there were no complications and no sequelae at separation (12/14/1990 STR - Medical, pg. 93). The Board finds the foregoing suggests in service occurrence of symptoms or temporary or intermittent flare-ups during service that are not sufficient to be considered aggravation in service. Most notably, it appears that although the Veteran's knees may have temporarily worsened during service, they improved to the point that they were no more disabling than at entrance. As such, the Board finds the Veteran's service treatment records weigh against a finding that her preexisting bilateral knee disability was aggravated during service. In that regard, the Board notes the Veteran has been afforded several VA examinations that have addressed her in-service knee complaints and treatment. During a January 1991 VA examination, the Veteran described her left knee as having been injured lifting a patient and that it improved in time. She reported that it began hurting again in 1990, with symptoms of swelling and giving way. At that time, no history of arthritis or gout was noted. Residuals of a left knee injury were not found (01/28/1991 Medical Treatment Record - Government Facility). In April 2016, in conjunction with a VA examination of the Veteran's knees, the examiner opined the medical records did not suggest the knee pain or condition that presented during service was chronic or recurrent (04/27/2016 C&P Exam). Other evidence associated with a claim for social security includes notations of in-service knee complaints and treatment. However, the Veteran indicated that her illness, injuries, or conditions first started to bother her in December 2001, over ten years after her separation from service (03/13/2020 Medical Treatment Records - Furnished by SSA, pgs. 58 and 142). After an examination, the April 2020 examiner opined the Veteran's condition clearly and unmistakably existed prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury event or illness. The examiner explained the Veteran's knock knees was a benign condition and was not affected or aggravated by claimed right knee joint injury on March 1988, or from car accident (04/21/2020 C&P Exam). In October 2020 the examiner opined it is less likely than not that the Veteran's pre-existing left or right knee condition was aggravated beyond natural progression during service. The examiner explained that the medical records did not document any temporary or intermittent flare-ups during her military service that worsened, aggravated, or altered the natural progression of her condition. In a February 2021 VA examination, the examiner discussed the Veteran's in-service knee complaints and treatment. The examiner explained for the Veteran's in-service left knee diagnosis with patella femoral pain/arthralgia was acute only, with normal left knee x-rays of July 1987. The examiner also considered the March 1988 in-service motor vehicle accident and explained the injury was acute and resolved. The examiner noted there was no chronicity of symptoms until August 1997, that is nearly a decade after service. Most recently, a March 2021 addendum opinion addressed the Veteran's knock knees (03/16/2021 C&P Exam). The examiner explained the diagnosis of degenerative changes noted in 2016 is a natural progression of knock knees, noted on entrance exam. Citing medical literature, the examiner explained the natural history of untreated genu varum is not benign. During the adult years, premature and eccentric stress on the knee may result in medial meniscal tears, tibiofemoral subluxation, articular cartilage attrition, and arthrosis of the medial compartment of the knee. The March 2021 addendum concluded with the opinion that the Veteran's diagnoses of bilateral knee disabilities are due to the natural progression of her pre-existing knock knees. The Board finds the most recent March 2021 addendum opinion to be grounded in the full review of the Veteran's record and medical history. It also includes references to medical literature. As such the Board finds the March 2021 addendum opinion highly probative and weighing against the Veteran's knee claims. The Board acknowledges that the Veteran is competent to report having experienced symptoms of her knee disabilities and describe pain since service. The Board also recognizes that the record reveals that the Veteran is a nurse and therefore has medical training (03/13/2020 Medical Treatment Records - Furnished by SSA, pg. 142). Regardless, the Board finds the Veteran's lay statements and contentions regarding pain to be outweighed by other medical evidence of record. The Board has considered the Veteran's recent reports of consistent post-service pain and treatment for her knees (1/13/2020 Hearing Transcript, pgs. 9-11; 9/03/2020 Medical Treatment Record -Government Facility). She described seeking VA treatment immediately after service for her knee, from 1989 through 1997. She then sought private treatment, and more recently returned to VA for treatment. Contradicting the Veteran's assertion, VA treatment notes from 1999 for complaints other than her knees are of record. Knee treatment related to the Veteran's knees from 2008 to present are found, however, no VA records from May 1989 to December 1999 were located (04/06/2020 CAPRI; 04/03/2020 CAPRI, pg. 787). Private treatment notes suggest the Veteran had a post service injury to her right knee in 1997. She described her knee pain as beginning in December 2001, and also noting a February 2000 right knee injury lifting a patient (09/03/2020 Medical Treatment Record - Government Facility, pgs. 4, 14, and 22). Despite her qualifications as a nurse, because of these contradictions as to the onset of the pain, the Board does not find the Veteran's most recent complaints of continuity of pain since service to be credible. With regard to her credibility, the Board notes and finds probative that the Veteran was characterized in the November 2006 examination only as a fair historian (03/13/2020 Medical Treatment Records - Furnished by SSA, pg. 142). As the Veteran's statements have not been consistent, are contradicted by not only her own statements but also medical evidence of record, and she has been identified as a fair historian, the Board does not find the Veteran's statements credible, and assigns them no probative weight in deciding these claims. In this assessment, the Board has considered her complaints of pain after excessive walking during her December 1987 physical. The Board finds these complaints outweighed by the physician description of e no complications and no sequelae as to her knees. The Board assigns the most weight to the medical evidence of record, specifically, the December 1987 physical, where no complications and no sequelae was found related to her knees and the Veteran was ultimately qualified for separation (12/14/1990 STR - Medical, pg. 93). Further weighing against aggravation, in 1991, right knee complaints were not made and residuals of a left knee injury were not found (01/28/1991 Medical Treatment Record - Government Facility). Finally, the March 2021 addendum opinion concluded the Veteran's diagnoses of bilateral knee disabilities are due to the natural progression of her pre-existing knock knees. The Board finds the weight of the most probative evidence of record is against a showing of an increase in the severity of the Veteran's preexisting disability during service. As such, the Veteran's knee claims must be denied. The Board also, to ensure all plausible avenues to service connection were explored, considered whether the Veteran's current knee disabilities may be related to her service connected back disability. A February 2021 VA examination was obtained in that regard. The examiner opined that the Veteran's left knee disability is less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected back condition. (Continued on the next page) The examiner explained there is no clear evidence from review of orthopedic literature to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis, or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait. This level of severity is not supported based on record review, history or exam. It is not unusual for two joints to share properties in the same person, but one joint's disease does not spread to another or cause damage to it. Therefore, the knee disabilities are less likely than not related to service-connected intervertebral disc syndrome and degenerative disc disease of the lumbar spine. The Board concludes that, while the Veteran has current diagnoses of bilateral knee disabilities, the most probative evidence of record clearly and unmistakably supports a finding that any increase in the Veteran's preexisting knee disability was the result of natural progression. Accordingly, the Veteran's claims for left and right knee disabilities is denied. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.