Citation Nr: 21014720 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 18-49 785 DATE: March 15, 2021 ORDER Service connection for a left knee disorder is denied. The issue of entitlement to a disability rating greater than 30 percent prior to September 13, 2018 and greater than 60 percent thereafter for coronary artery disease (CAD) is dismissed. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to September 13, 2018 is dismissed. FINDINGS OF FACT 1. The competent evidence shows that the Veteran’s left knee disorder clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated beyond the natural progression during service. 2. Prior to the promulgation of a decision in the appeal, in June 2020 correspondence, the Veteran withdrew the claims of entitlement to a disability rating greater than 30 percent prior to September 13, 2018 and greater than 60 percent thereafter for CAD and entitlement to a TDIU prior to September 13, 2018. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disorder are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.  2. The criteria for withdrawal of the claims of entitlement to a disability rating greater than 30 percent prior to September 13, 2018 and greater than 60 percent thereafter for CAD and entitlement to a TDIU prior to September 13, 2018 have been met; the claims are dismissed. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1967 to December 1968. This case comes on appeal to the Board of Veterans’ Appeals (Board) from November 2016 and November 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. Specifically, the November 2016 rating decision, in part, denied service connection for a left knee disorder. The November 2017 rating decision increased the Veteran’s disability rating for CAD from 10 to 30 percent disabling effective October 23, 2017. Subsequently, by rating decision dated in October 2018, the RO increased the Veteran’s disability rating for CAD from 30 to 60 percent disabling effective September 13, 2018. As a higher rating is available for CAD both before and after September 13, 2018 and the Veteran is presumed to seek the maximum available benefit for a disability, the claim is still considered to be on appeal both before and after September 13, 2018. See AB v. Brown, 6 Vet. App. 35, 38 (1993). With regard to the TDIU issue, a review of the record shows that the Veteran last worked full time in July 2017, and he contends that he ceased working, at least in part, due to his service-connected CAD. He submitted a formal claim for a TDIU in October 2018 and, by rating decision dated in September 2019, the RO granted a TDIU effective September 13, 2018. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009), the issue of entitlement to a TDIU prior to September 13, 2018 remains on appeal as the TDIU claim is part and parcel of the Veteran’s appeal for an increased rating for his CAD which has been pending since October 2017. This case was previously before the Board in May 2020, at which time the above issues were remanded for additional development. 1. Service connection for a left knee disorder is denied. Service connection requires evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the current disability and the disease or injury incurred or aggravated during active service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Certain chronic diseases, including arthritis, will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause.  38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides 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 pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304 (b)(1) (2016). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306 (2016); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that “temporary or intermittent flare-ups during service of a preexisting 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 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The Veteran contends that service connection is warranted for a left knee disorder. Specifically, he notes that he first injured his left knee prior to his military service and reinjured the knee during his service resulting in aggravation of a pre-existing left knee disorder. The Veteran’s entrance examination in March 1967 is negative for a notation of a knee injury at the time of entry. However, a review of the claims file confirms clearly and unmistakably that the Veteran did injure his left knee prior to his military service and underwent surgery to remove bone fragments in his left knee in April 1964. Service treatment records (STRs) show complaints of left knee pain in April and May 1967, but the Veteran’s December 1968 separation examination shows a normal knee examination. Post-service private treatment records show a diagnosis of severe medial and to a lesser degree patellofemoral joint osteoarthritis of the left knee with a history of left knee pain as early as April 2010 and the Veteran underwent left knee replacement in May 2010. The Veteran submitted an initial claim for service connection for a left knee disorder in September 2016. At that time, the Veteran reported that he first began experiencing left knee problems while in high school which have continued to the present, resulting in arthroscopy of the left knee in 1985 and a left knee replacement in May 2010. In connection with this claim, the Veteran submitted an August 2016 statement from his wife reiterating the Veteran’s allegations of continuity of symptomatology of left knee symptoms since his discharge from service, noting that the Veteran was treated for left knee symptoms in the 1980s and 1990s and also underwent arthroscopy of the left knee in 1985. The Veteran was afforded a VA knee examination in October 2016. Significantly, the examiner diagnosed left knee osteoarthritis as well as degenerative arthritis and opined that Veteran’s pre-existing left knee disorder was not aggravated beyond its natural progression by going up and down ladders and knee treatment during service. As rationale for this opinion the examiner (in pertinent part) noted the Veteran’s pre-service left knee surgery, the April 1967 STR showing left medial aspect knee pain, the December 1968 separation examination showing normal knees, and the April 2010 private treatment record showing severe medial and to a lesser degree patellofemoral joint osteoarthrosis. As the October 2016 VA opinion did not address the May 1967 STR regarding the left knee and did not address the allegations of continuity of symptomatology of either the Veteran or his wife, to include the history of treatment for the left knee in the 1980s with arthroscopy in 1985, the claim was remanded by the Board in May 2020 for an additional examination and medical opinion. A November 2020 VA knee examination shows diagnoses of left knee joint osteoarthritis and status post surgery boney fragments L knee 1964. Significantly, the examiner opined that the Veteran’s claimed left knee disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale for this opinion, the examiner noted that there was clear and unmistakable evidence that the Veteran’s left knee disorder existed prior to his military service as medical records verified that the Veteran had had a left knee condition prior to his military service. Included in the statement by the Veteran’s wife, she noted that the Veteran’s knee would lock up, this requiring left knee surgery in 1964. Although medical records are not available for the actual indication and surgical procedure, records indicate that surgery was performed to remove bony fragments (chips) that were felt to be causing the knee to lock up. The November 2020 VA examiner then noted that there was clear and unmistakable (undebatable, obvious, or manifest) evidence that the Veteran’s left knee disorder was not aggravated by the Veteran’s military service. Significantly, the examiner noted that the buddy statement and letter from the Veteran’s wife do not support a continuous/persistent left knee condition resulting from service, but rather only intermittent left knee strain with left knee pain and swelling “every week or two”--as endorsed by the Veteran’s buddy--due to repetitive over use of the left knee during his tour of active duty. If the Veteran had incurred a persistent/chronic left knee condition during service, then he would have had progression of his knee condition requiring evaluation and treatment much sooner than in 1985 (about 17 years after separation from military service in 1968). Similarly, if the Veteran’s left knee condition had been aggravated by service, it is very likely that the Veteran would have had progression of his left knee condition in closer temporal proximity to the last STR for his left knee in 1967, than in 1985, when he again sought attention for left knee complaints. However, in fact, neither the Veteran’s medical records nor statements from the Veteran’s wife and buddy statements--support this scenario. Emphasized is that there were only 2 STRs for left knee pain (one in April 1967 and one in May 1967) with separation examination one year and a half later silent for any left knee complaints, and knee examination noted to be normal. Medical records support that the etiology of the Veteran’s chronic, persistent left knee condition including osteoarthritis requiring a total left knee replacement in 2010 (similar to the etiology for his right knee osteoarthritis requiring total right knee replacement a few years ago) was the result of years of physical wear and tear on the knee related to physically demanding occupations following his military service. After separation from the military the Veteran worked a brief time for a tool and dye company, followed by a few years of working in a physically active role at Oshkosh Truck, and subsequent to this he worked as a firefighter for 27 years without any limitations related to his left knee. At this juncture, it should be pointed out that the Veteran would not have qualified and been able to perform his duties for 27 years (almost three decades) as a firefighter--if he had had a chronic/persistent left knee condition incurred in the military. Subsequent to retirement from his firefighter career at the age of 53, the Veteran and his wife purchased apartment buildings that he and his wife managed (as verified in the Mental Health note from March 2019). This March 2019 mental health note also documents that from 2015 to 2017, the Veteran worked with his son performing home remodeling, but that “Due to his health issues, he stopped. He used to enjoy hunting but cannot do this anymore due to his health. He stated, “I’m afraid to do that. I could have a heart attack [given diagnosis of CAD].” There was no documentation of expressed limitation in activities with regard to the Veteran’s knees, nor did the Veteran express any limitations with regards to his knees during the November 2020 VA examination. Summary Medical records do not support that the Veteran’s left knee condition was incurred or aggravated by any event, activity or injury during military service. Rather, medical records support that the etiology of the Veteran’s chronic, persistent left knee condition including osteoarthritis requiring a total left knee replacement in 2010 (similar to the etiology for his right knee osteoarthritis requiring total right knee replacement a few years ago) was the result of years of physical wear and tear on the knee related to physically demanding occupations. Moreover, the Veteran’s chronic left knee condition--to include arthroscopic removal of bony fragments in 1985, osteoarthritis requiring total knee replacement in 2010 with residuals of mild limitation of flexion-- are all less likely than not related to or caused by the veteran’s left knee pain in service. In this case, the record clearly and unmistakably shows that a left knee disorder pre-existed the Veteran’s military service. As above, while there is no medical documentation of a pre-service left knee surgery, the record overwhelmingly shows that the Veteran had surgery on his left knee to remove bone fragments prior to his military service. As such, the Board finds that a left knee disorder preexisted military service. The question turns to whether there is clear and unmistakable evidence that it was not aggravated by his service. On that point, the Board further finds clear and unmistakable evidence that the Veteran’s left knee disorder was not aggravated by his military service. The Board acknowledges that the STRs reflect two occasions of complaints of left knee pain during service. However, the fact that the Veteran exhibited symptoms in service, in and of itself, is not sufficient to show that the underlying condition, as contrasted to the symptoms, worsened. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In this case, the evidence does not demonstrate increase a left knee disorder during military service. In particular, the November 2020 VA examiner found that there was clear and unmistakable evidence that the Veteran’s left knee disorder was not aggravated by the Veteran’s military service. The examiner relied on the service treatment records which showed only two instances of pain, but an entirely normal separation examination; the Veteran’s and his wife’s lay statements; and the long period of time between the Veteran’s separation and his first post-service complaints, finding that if the Veteran had incurred a persistent/chronic left knee condition during service, then he would have had progression of his knee condition requiring evaluation and treatment much sooner than in 1985 (about 17 years after separation from military service in 1968). The examiner went on the opine as to the etiology of the current knee disorder, pointing to the very physical job the Veteran maintained for 27 years after the military, from which he would have been disqualified if he had a significant in-service knee disability. The Board finds this opinion to be highly probative on the issue before it. It was based on a thorough review of the pertinent records, to include the in-service treatment records. It provided the underlying reasons for the conclusions made. It is contradicted only by the Veteran’s lay statements, which are not competent to qualify as a medical opinion. The Board acknowledges that the Veteran has alleged that a left knee disorder was aggravated during military service. Where lay statements are “vague” or “inconsistent with the evidence as a whole,” they may be discounted by VA. See Gardin v. Shinseki, 613 F.3d 1374, 1380 (Fed. Cir. 2010). In the present case, the Veteran’s statements of aggravation of his left knee disorder during military service are vague, in that he has reported an increase in his left knee symptoms during military service but has not cited to any specific incidents or otherwise provided an explanation as to specifically how his left knee disorder permanently worsened during and after service. His statements are also inconsistent with the evidence as a whole as the Veteran had significant post-service wear and tear on his knees and by his own account was not actually treated for a left knee disorder until 1985, approximately 17 years after his discharge from service. Accordingly, the lay statements concerning the aggravation of the Veteran’s left knee disorder during military service do not constitute competent or credible medical evidence and as such they are not probative. In contrast, the November 2020 VA knee examiner’s opinion that the Veteran’s pre-existing left knee disorder was not aggravated by his military service beyond the natural progression is competent and highly probative. As such, there is no basis for service connection for a left knee disorder on an aggravation basis. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. the claim is denied. (CONTINUED ON NEXT PAGE)   2. The issues of entitlement to a disability rating greater than 30 percent prior to September 13, 2018 and greater than 60 percent thereafter for CAD and entitlement to a TDIU prior to September 13, 2018 are dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. In June 2020 correspondence, the Veteran indicated that he wished to withdraw the claims of entitlement to a disability rating greater than 30 percent prior to September 13, 2018 and greater than 60 percent thereafter for CAD and entitlement to a TDIU prior to September 13, 2018. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, the Board does not have jurisdiction to review these issues and they are dismissed. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.