Citation Nr: 21012585 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 14-30 525 DATE: March 4, 2021 ORDER Service connection for a left knee condition is denied. FINDING OF FACT The Veteran’s left knee condition, which clearly and unmistakably preexisted the service, was clearly and unmistakably not aggravated therein. CONCLUSION OF LAW The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1969 to March 1970. The case is on appeal from a February 2013 rating decision. In January 2019, the Veteran testified at a Board hearing. The case was last before the Board in January 2019. At that time, the Board reopened the claim of service connection for a left knee condition and remanded the claim for further development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service connection for a left knee condition. Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 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 present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the “burden is not on the claimant to show that his disability increased in severity.” To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” This burden 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 (2012). Discussion In this case, the Board finds that service connection for a left knee condition is not warranted, as the left knee condition preexisted the Veteran’s service and was not aggravated therein. With regard to whether the condition preexisted his entrance into service, the Veteran’s service treatment records (STRs) include a November 1969 entrance physical examination. At that time, the Veteran did not report a preexisting left knee condition and the physical examination did not note a left knee condition. Because a left knee condition is not noted at service entrance, the Veteran is presumed sound. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b); Wagner, 370 F.3d at 1096. There is, however, clear and unmistakable evidence that the condition preexisted his service. First, the STRs contain evidence establishing that the condition preexisted service. In December 1969, the Veteran was treated for a painful left knee. The Veteran reported having dislocated his left knee 2 years prior and that he now experienced pain with bending. The Veteran underwent a Medical Evaluation Board (MEB) in February 1970, which found that the Veteran had subluxation of the left patella and chondromalacia of the left patella which both existed prior to service and were not aggravated by service. During the MEB, the Veteran reported he received multiple injuries to the left lower extremity, including the left knee, in a motorcycle accident 2 years prior to enlistment. He also described having recurrent lateral dislocation of the left patella with pain and locking of the knee. Ultimately, the MEB recommended him for separation, which occurred shortly thereafter. Thus, based on the medical judgment of the MEB panel, it was determined that the condition preexisted service. Second, the Veteran underwent a VA examination in January 2013, and the VA examiner concluded that the condition clearly and unmistakably existed prior to service. Based on this evidence, it is clear and unmistakable (i.e., undebatable) that a left knee condition preexisted service. Thus, the first prong of the presumption of soundness is rebutted. The evidence also makes it clear and unmistakable that the condition was not aggravated by service. First, the MEB panel in February 1970 made a specific finding that the condition was not aggravated by service. This is more than an “X” marked on the panel’s report without further explanation. To the contrary, the narrative report explains the facts and reasoning for this determination. See Horn, 25 Vet. App. at 240-41. In addition to the MEB report, the January 2013 VA examiner also determined that the condition was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiner explained that there is no evidence in the records of any positive findings on the knee in service, except his own guarding and claims of pain. Additionally, the examiner mentioned a signed statement submitted by the Veteran in which he stated he is suffering from a physical disability not considered as incurred or aggravated by service. Further, while the left knee preexisting condition became acutely worsened during his training, there is no evidence of a new injury or permanent aggravation. As a result, his increase in disability is due to the natural progress of the preexisting injury. The examiner stated that the opinion was based on review of the medical records provided for his examination. Additionally, medical records provide the Veteran described hearing a “loud pop” during basic training and that there was fluid on his knee. At present, the Board can find no reason to call into question or otherwise discount the probative weight of the contemporaneous MEB findings and the VA examiner’s opinion. The opinions and explanations are clear and unequivocal, and are based on the relevant information, including the relevant in-service (and post-service) information. Moreover, the opinions’ explanation is understandable, and all inferences appear to follow from the facts and information given. See Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304. To this extent, the Veteran has no duty to present any evidence of aggravation. The VA examiner’s opinion states that “while the left knee preexisting condition became acutely worsened during his training, there is no evidence of a new injury or permanent aggravation.” The VA examiner’s opinion simply posits that, from a medical perspective, there must be some evidence of aggravation to conclude that training during service worsened the preexisting left knee condition. Absent such evidence, the opinion follows that there was not aggravation. This opinion does not shift the burden of proof to show no aggravation because the VA examiner was stating a medical conclusion whereas the determination regarding aggravation is a legal conclusion. Therefore, it is not inadequate to determine that there was no aggravation. See Wise v. Shinseki¸ 26 Vet. App. 517, 531-32 (2014); Jones v. Shinseki, 23 Vet. App. 388, 391 (2010). Accordingly, this evidence collectively establishes by clear and unmistakable (i.e., undebatable) evidence that the condition was not aggravated during service. Thus, the second prong of the presumption of soundness is also rebutted. Because the evidence establishes by clear and unmistakable evidence that the condition preexisted service and was not aggravated by service, the presumption of soundness is rebutted in its entirety and service connection. As service connection cannot be established for a condition when the presumption of soundness is rebutted, service connection is not warranted for the preexisting left knee condition. See Wagner, 370 F.3d at 1096. In conclusion, the preponderance of the evidence is against the claim in its entirety with the even higher evidentiary burdens addressed above. As such, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for a left knee condition is denied. See 38 U.S.C. § 5107(b) 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Becton, 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.