Citation Nr: 21071528 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 15-34 887 DATE: November 30, 2021 ORDER Service connection for a right knee disorder is denied. FINDING OF FACT A right knee disorder, diagnosed as hereditary multiple exostoses/ osteochondromatosis, clearly and unmistakably pre-existed the Veteran's entrance to active duty and was not aggravated therein, and her currently diagnosed degenerative arthritis is the result of such disorder. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 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 February 2003 to February 2006. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2012 by a Department of Veterans Affairs (VA) Regional Office. The Board, in pertinent part, reopened and remanded the issue on appeal in February 2019, and again remanded the issue in February 2021 for additional development. The case now returns for further appellate review. Entitlement to service connection for a right knee disorder. The Veteran asserts she has a current right knee disorder that had its onset during active duty as a result of rigorous physical activities, to include carrying heavy loads, rough marches, drills, and jumping in/out of Humvees and LMTVs. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Every 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 the 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). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury pre-existed service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Congenital or developmental "defects" automatically rebut the presumption of soundness and are therefore considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9. Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such "defects" because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003); Palczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). VA's Office of General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary diseases, for which service connection may be granted, if initially manifested in or aggravated by service. See VAOPGCPREC 82-90, VAOPGCPREC 67-90. The VA General Counsel draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that a defect is "more or less stationary in nature", while a disease is "capable of improving or deteriorating." See VAOPGCPREC 82-90 at para. 2. As noted above, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2007); Terry, 340 F.3d at 1385-86 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. However, if it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have pre-existed service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Since the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease pre-existed service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which pre-exist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43,253 (1990). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe, 4 Vet. App. at 515. In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-397. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so, whether there was aggravation during service. Id. at 395. Further, 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); 38 C.F.R. § 3.306(a). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary 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). With respect to a current disability for the purpose of service connection, an October 2019 VA examination reflects diagnoses of right knee degenerative arthritis and status-post right knee arthroscopy for osteochondromatosis. Additionally, the Veteran's service treatment records (STRs) reflect that, while her December 2002 entrance examination was negative for any documentation of a right knee disorder, a June 2003 STR indicates she had a history of right tibia pain for two months, and X-ray examination revealed "mild periostitis changes symmetrically within the bilateral mid tibiae and fibulae" and "incidental note of multiple hereditary exostoses/osteochondromatosis." The remainder of the Veteran's STRs are negative for any complaints, treatment, or diagnosis referable to a right knee disorder. On VA examination in April 2006, two months following her separation from service, the Veteran reported that she first experienced bilateral knee pain secondary to the performance of her military activities. X-ray examination in May 2006, however, did not demonstrate any significant joint abnormalities or significant arthropathy. The VA examiner noted exostoses were seen off the distal femurs, proximal tibias, and proximal fibulas compatible with hereditary osteochondromatosis. Following examination in October 2019, a VA clinician acknowledged the foregoing complaints in service, but found the mild periostitis noted therein had since resolved based on the absence of tenderness, swelling of the lower leg bone, and pain on the day of the examination. Additionally, he noted the STRs were silent for treatment or chronicity of care for peritonitis, and examination in 2006 was silent for objective evidence to support a chronic right knee disorder at separation from service. Rather, the VA clinician observed that a post-separation magnetic resonance imaging scan revealed degenerative changes of the right knee, and determined that the Veteran's current right knee complaints were the result of her right knee osteochondromatosis with subsequent surgical removal. Notably, he explained that medical literature shows that multiple osteochondromatosis is a hereditary condition resulting from the development of multiple, cartilage-covered tumors on the external surfaces of bones. Thus, he indicated that, while such condition was found in service, it was a pre-existing knee disorder due to its hereditary etiology. In further support of such determination, the VA clinician noted that radiologic evidence revealed such pre-existing condition less than six months into the Veteran's service, and her STRs were silent for degenerative changes of the right knee. Therefore, he opined the Veteran's right knee osteochondromatosis status-post removal of osteochondromatosis and right knee degenerative changes were less likely than not caused by service. As the October 2019 VA examiner did not address whether the Veteran's right knee disorder clearly and unmistakably existed prior to service and was not aggravated therein so as to rebut the presumption of soundness, the Board remanded the case in February 2021 in order to obtain an opinion that properly applied such standard. Thereafter, in May 2021, a second VA clinician opined the Veteran's right knee disorder, diagnosed as hereditary multiple exostoses/osteochondromatosis, clearly and unmistakably pre-existed service as such is a congenital condition. Thus, she found that, although the Veteran did not have any right knee complaints upon enlistment, she was not sound at the time of her entrance into service. Further, the VA clinician determined the Veteran's pre-existing right knee disorder clearly and unmistakably was not aggravated by service. In this respect, she found the Veteran's symptoms of right knee pain improved in service. Additionally, the VA clinician determined the Veteran's short period of service from February 2003 to February 2006 was not long enough for an aggravation to develop, especially in light of the improvement of her symptoms. Thus, while her right knee disorder advanced after service and ultimately required surgical intervention, such was many years after service and unrelated to the in-service complaints. Based on the aforementioned medical opinions, the Board finds the Veteran's diagnosed hereditary multiple exostoses and osteochondromatosis constitutes a congenital disease, as such is capable of improving or deteriorating, that clearly and unmistakably pre-existed service. Additionally, the May 2021 opinion indicates that such pre-existing congenital disease clearly and unmistakably was not aggravated beyond its natural progression by an in-service event or injury. In this regard, the VA clinician based such opinion on the showing of improvement of the Veteran's symptoms and the short length of her period of service. Moreover, the October 2019 VA examiner found that the Veteran's degenerative changes of the right knee, which was subsequently diagnosed as degenerative arthritis, was the result of her right knee osteochondromatosis with subsequent surgical removal. Upon review, the Board affords great probative value to the VA clinicians' opinions as they reflect consideration of all relevant facts, with specific citation to the Veteran's STRs, post-service treatment records, and her lay statements, and the VA clinicians provided a complete rationale, relying on and citing to the records reviewed. Moreover, they offered a clear conclusion with supporting data as well as a reasoned medical explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). In this regard, the Board notes that, in October 2021, the Veteran argued that a physical examination, as a opposed to a medical opinion based on a review of the record, would be more beneficial in addressing her claim as the examiner did not evaluate her right knee or understand the facts of her case. However, the Board finds such argument to be without merit as the current nature of the Veteran's right knee disorder is documented in contemporaneous treatment records and, most recently, at an October 2019 VA examination. Furthermore, the current matter at issue pertains to the etiology of such disorder, as opposed to the severity of such disorder, and there is no indication that the May 2021 VA examiner was unaware of any relevant fact. Consequently, the Board finds that an examination is unnecessary and her argument is without merit. Furthermore, there is no medical opinion to the contrary. In this respect, the Board acknowledges the Veteran's reports of the onset of right knee pain in service; however, the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis, supra; 38 C.F.R. § 3.306(a). Additionally, evidence of being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green, supra. Furthermore, while the Veteran is competent to report relevant symptomatology such as pain, she, as a lay person is not competent to offer an opinion as to whether her pre-existing right knee disorder underwent an increase in the underlying severity during her military service as such is a complex medical question extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the musculoskeletal system and the impact repetitive motion and trauma have on the knee. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Veteran's opinion as to the etiology of her right knee disorder is not competent and, consequently, is afforded no probative weight. The Board further observes that, in October 2021, the Veteran cited a purported medical study, without attribution, addressing the impact of wearing body armor on the biomechanics of the lower back and knee. However, such is not accompanied by any corresponding clinical evidence specific to the Veteran, and does not suggest a generic relationship between the Veteran's current right knee disorder and her military service with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Consequently, such literature is insufficient to establish service connection for a right knee disorder and not probative as to a nexus between such disorder and the Veteran's military service. Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). In conclusion, the Board finds that a right knee disorder, diagnosed as hereditary multiple exostoses/osteochondromatosis, clearly and unmistakably pre-existed the Veteran's entrance to active duty and was not aggravated therein, and her currently diagnosed degenerative arthritis is the result of such disorder. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for service connection for a right knee disorder. As such, that doctrine is not applicable in the instant appeal and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. M. Celli, 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.