Citation Nr: 21072495 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 19-25 707 DATE: December 3, 2021 ORDER Entitlement to service connection for left knee osteoarthritis is denied. FINDING OF FACT The Veteran's left knee disability pre-existed service and was not aggravated beyond the natural progression of the disease. CONCLUSION OF LAW The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 28, 1966, to October 14, 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision by the RO. Service Connection - Left Knee Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Service connection may be presumed, for certain chronic diseases, such as arthritis, which develop to a compensable degree within a prescribed period after discharge from service (one year for arthritis), although there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree. 38 C.F.R. § 3.307(c). Here, the Veteran may not benefit from the presumption applicable to service connection for arthritis as a chronic disease based on active continuous service of less than 90 days. 38 U.S.C. §§ 1101 (3), 1112(a); 38 C.F.R. §§ 3.307 (a), 3.309 (a). The Board has reviewed all of the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus, specifically, on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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). The Veteran contends that he injured his left knee during initial Army training, resulting in aggravation of his pre-existing left knee disability. The Board notes that the Veteran was diagnosed with left knee osteoarthritis in 2007. Accordingly, the first criterion for establishing service connection has been met. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304 (b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. Service treatment records (STRs) include an October 1965 pre-induction physical examination which notes that the Veteran had a left knee football injury; the examination revealed no instability and full range of motion and x-ray was reported to not be disqualifying. The lower extremities were assigned a profile of "1" (See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)); a subsequent July 1966 physical inspection notation indicates that no additional defects were discovered, and he was found fit for service. In August 1966, the Veteran reported injuring his left knee after jumping off a truck. His chief complaint to medical staff at the U.S. Army Orthopedic Clinic at Fort Gordon, Georgia, was that his left knee was "giving way and swelling." September 1966 STRs showed that the Veteran had a history of injuring his knee while playing football three years earlier. He refused to have knee surgery at the time of his football injury. The medical staff in Fort Gordon diagnosed the Veteran with a "sprain, moderately severe, chronic, medial collateral and anterior cruciate ligaments, left knee." The Veteran was, thereafter, medically separated from the U.S. Army based on medical findings that an unstable knee joint seriously limited his function. The Medical Review Board found no evidence of aggravation of the knee injury that existed prior to entry on active duty. A September 1965 selective service letter also supports the preexisting nature of the left knee disability. As such, the presumption of soundness does not apply and the Veteran's left knee disability pre-existed service. Therefore, the remaining question for the Board is whether the Veteran's pre-existing left knee was aggravated by active military service. A pre-existing 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 a specific finding 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(a). 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 disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). 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. See id. Many years after the Veteran's medical discharge, he sought medical treatment for pain in his left knee, including a meniscectomy in 1978 and removal of a foreign body in 1983. In October 2003, he was evaluated for bilateral degenerative joint disease of his left and right knees, confirmed by X-rays in 2007. Experiencing pain with each step he took, the Veteran received a total left knee replacement in February 2007 to treat his osteoarthritis. He told the medical staff at the Orthopedic Clinic during a follow-up examination in September 2007 that his "left knee is not bothering him at all." By October 2014, the Veteran reported right knee pain to the Orthopedic Clinic, but no pain to the left knee. Throughout 2014 and 2015, the Veteran received either cortiscosteroid or orthovisc injections in his right knee at the Orthopedic Clinic. He continued to report no pain in his left knee. During his December 2017 VA examination, the Veteran explained that he first injured his left knee in 1964 playing high school football. He reinjured his left knee playing high school basketball. One day during basic training at Fort Gordon, he jumped off a transport truck and twisted his left knee. Following separation from the U.S. Army, his left knee pain continued and grew progressively worse. He believed he must have torn a ligament or cartilage in his knee. The Veteran experienced three surgeries on his left knee since leaving active duty. The Board acknowledges that the Veteran is competent to report additional pain after jumping from a truck during training; however, for aggravation to be granted, the increase in disability must be permanent and beyond the natural progression of the disease. The Veteran had a negative X-ray at that time with no evidence of arthritis. The Medical Board found no evidence of aggravation of the knee injury during service. VA examiners found no evidence of record to support the Veteran's pre-existing left knee injury was aggravated beyond its natural progression by service. Rather, the VA examiners concluded the Veteran's degenerative joint disease in his left knee is most likely related to age-related degenerative disease, generalized osteoarthritis in multiple joints and chronic repetitive use over the lifetime. Therefore, service connection for aggravation is not warranted. While the Veteran believes that his current left knee disability is related to jumping off a truck during his enlistment training period, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. 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, the diagnosis and etiology of his left knee disability are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of left knee disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current disability is also a matter that also requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Thus, the Veteran's own opinion regarding the etiology of his left knee disability is not competent medical evidence. The Board finds the opinion of the VA examiners to be significantly more probative than the Veteran's lay assertions. In sum, the Veteran's left knee disability pre-existed service. The Veteran did not experience a permanent increase in disability beyond the natural progression of the disability during service. Any increase in pain after falling during service resulted in a transient and temporary increase in pain. Based on the evidence cited above, the Board finds that the preponderance of the evidence is against the claim of service connection for a left knee disability. As the preponderance of the evidence is against the claim for service connection for a left knee disability, the benefit of the doubt rule does not apply. 38 C.F.R. § 5107; 38 C.F.R. § 3.102. Cory Picton Veterans Law Judge Board of Veterans' Appeals 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.