Citation Nr: 21024842 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 17-23 436 DATE: April 26, 2021 ORDER Restoration of service connection for a left knee strain is granted. FINDING OF FACT The grant of service connection for a left knee strain in a December 2014 rating decision is not shown to have been clearly and unmistakably erroneous. CONCLUSION OF LAW The criteria for restoration of service connection for a left knee strain are met. 38 U.S.C. §§ 1110, 1131, 5109A (2020); 38 C.F.R. §§ 3.12, 3.103, 3.105, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to April 1971, from April 1976 to August 1976, from November 1990 to May 1991, from September 2004 to January 2006, and from July 2006 to February 2009, with other service in the National Guard and Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Propriety of the April 2015 severance of service connection for a left knee strain. The Veteran contends that the April 2015 severance of service connection was improper. In this regard, the Veteran contends that he was injured in-service, has had neck pain since which got progressively worse, and consequently restoration of service connection is warranted. After a review of the record, the Board finds that reasonable minds could differ on the etiology, and relationship to service, of the left knee strain. Therefore, the award of service connection in December 2014 was not clearly and unmistakably erroneous, and severance of service connection was not proper. Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (CUE) (the burden of proof being on the Government). 38 C.F.R. § 3.105(d). VA must assure both that due process has been observed in the process of severance and that CUE exists in the award of service connection. 1. Due Process When severance of service connection is considered warranted, a rating proposing severance will be prepared setting forth all material facts and reasons. The claimant will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that service connection should be maintained. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued, if in order, effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(d). The initial question for the Board is whether the RO followed the due process requirements of 38 C.F.R. § 3.105(d) for severing service connection. The RO originally granted service connection for a left knee strain in a December 2014 rating decision effective April 15, 2011. In a February 2015 rating decision, the RO proposed to sever service connection for this disability. The RO stated that the decision to grant service connection for a left knee strain was clearly and unmistakably erroneous because the grant was based on a November 2014 VA opinion which was later refuted and found erroneous by January 2015 and February 2015 opinions. In an April 2015 rating decision, the RO severed service connection for a left knee strain. The RO reiterated the findings from the February 2015 rating decision, and concluded that severance was proper. The RO followed the proper due process steps for severing service connection. The RO issued the proposed rating in February 2015, and the Veteran was notified at his latest address of record of this contemplated action and furnished detailed reasons therefor and was given 60 days for the presentation of additional evidence to show that service connection should be maintained in a February 2015 notice letter. The RO issued the April 2015 rating decision, which severed service connection prospectively effective July 1, 2015. The resulting period for which the Veteran was in receipt of service connection began on April 15, 2011, and ended July 1, 2015, a period of less than ten years. 38 C.F.R. § 3.957. Notice of this rating decision, plus his appeal rights, was sent to the Veteran on April 22, 2015. The July 1, 2015, date was greater than the last day of the month in which a 60-day period from the date of the April 2015 notice expired. Thus, all due process requirements were met in the severance of service connection for a cervical spine strain. 38 C.F.R. § 3.105(d). 2. Existence of CUE in the Award of Service Connection  Having met the due process requirements, the remaining question before the Board in this case is whether the grant of service connection for a left knee strain was clearly and unmistakably erroneous. The Board concludes that the severance of service connection was improper because the evidence conflicts as to the onset, in-service incurrence, etiology, and progression of a left knee disability, and thus service connection based on a difference of opinion was not clearly and unmistakably erroneous. To establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007) (internal citations omitted). A clear and unmistakable error is one about which reasonable minds could not differ. See 38 C.F.R. § 3.105(a)(1)(i).  In most respects, the CUE standard for severing service connection under 38 C.F.R. § 3.105(d) is equivalent to the CUE standard for reversing or revising a prior final decision under 38 C.F.R. § 3.105(a). See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). However, the determination is not limited to the law and the record that existed at the time of the original decision. VA may consider medical evidence and diagnoses that postdate the original award of service connection to demonstrate that the diagnosis on which service connection was predicated is clearly erroneous. Stallworth v. Nicholson, 20 Vet. App. 482, 488 (2006). The Veteran initially filed an application for service connection in April 2011, seeking service connection for a bilateral knee disorder. The Veteran generally contends that his left knee strain was caused by progressive degeneration due to overuse, and due to compensation for a right knee injury from the early 1990s. The Veteran’s service treatment records (STRs) include a December 2007 treatment note which documented an injury to the right knee in 1991, wherein he was found to have a torn meniscus, with pain since such injury. At that time, the Veteran reported left knee pain without a specific onset, but rather a slow noticeable increase in pain. An earlier STR from July 2001 notes the Veteran had right knee surgery to repair a torn meniscus, and left knee surgery at some point in the past for examination purposes only. Similarly, a November 2006 STR includes reports of bilateral knee pain for 37 years, with a knee surgery in the 1980’s with a strained meniscus, and one in the 90s with a torn meniscus, and that everything made his knees hurt worse. Moreover, an August 2014 VA treatment record also notes that the Veteran had no known major injury to the left knee, but had a scope done many years ago that showed no meniscal tear. In addition, a February 2009 VA treatment record noted the Veteran was placed on a medical hold in December 2007 for bilateral knee pain. Shortly thereafter, in March 2008, an Army Line of Duty (LOD) determination found that the Veteran had bilateral degenerative joint disease in the knees, and that such existed prior to service (referencing the period from July 2006 to February 2009), but was aggravated by his deployment, and therefore, his knee disorders were incurred in the LOD. Following the application for service connection, the Veteran was then afforded a VA examination to determine the nature and etiology of any knee disorder in November 2014. At that time the Veteran reported that he began having right knee pain and stiffness in 1990, and he eventually had a meniscectomy performed in 1992, with continuing pain and stiffness in the right knee thereafter. He also reported that he then subsequently began to experience left knee pain and stiffness since the early 1990s and after the surgery. The examiner noted that the Veteran did not have a knee condition upon entering service, and that the records do show a right knee injury while training for Desert Storm with a subsequent meniscectomy. The examiner opined that the Veteran then developed left knee pain due to compensatory stresses, a history that is documented in the aforementioned December 2007 treatment record during service, which corroborates the history given at that time. The examiner also noted that there were no other causative injury events since the Veteran left military service; and therefore, the left knee condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The Veteran was then granted service connection for a left knee strain based on this opinion in December 2014. Thereafter, in January 2015, the Veteran was scheduled for another examination of the knees as the RO erroneously stated the Veteran failed to report for the previous examination. At such time, the Veteran was diagnosed with degenerative arthritis in the left knee. The Veteran reported pain in both knees began in service, and hurt worse after marching and activity. At that time, the Veteran also reported he had a left knee injury after chasing someone in private employment at a 7/11, with an operation occurring in 1979 or 1980, and the examiner later indicated that the operation was a debridement. The examiner then opined that the left knee disorder was less likely than not related to service, noting the theory that hard work in service caused arthritis. However, the examiner noted he had a scoping after hurting it chasing someone while working for a 7/11, and nothing was seen on the scope, and it has degenerated over time due to his non-service-connected activity, genetics, or other causes, rather than his service. Finally, VA obtained an opinion in February 2015, which considered the earlier two opinions. The examiner stated that the November 2014 examiner diagnosed a left knee strain without documented evidence of any injury or event having occurred in the service. The examiner continued that when he was having serious problems with the right knee in 2007 and 2008, he was having bilateral knee pain, and on a December 2007 x-ray there were already osteoarthritic changes with narrowing of the medial joint compartment of the left knee. The examiner noted that the Veteran had reported in January 2015 that at some point, presumably occurring before that x-ray date, he had injured his left knee while working at a convenience store and had left knee arthroscopy. The examiner also noted that in the November 2014 examination, he theorized that the pain in the left knee was due to overuse due to his right knee condition. However, in contrast, in the January 2015 examination that the left knee problem was due to general hard work in the service, and not to any single or particular cause. The examiner theorized that the November 2014 examiner was apparently unaware of the 1979 or 1980 injury history. The examiner continued that he was unable to find an event in service suggesting that the left knee problem either originated in service, or that it was likely was aggravated beyond its natural progress by service. Weighing these factors, and also taking into account that the January 2015 examiner was a board certified orthopedist, the examiner concluded that it was more likely than not that the opinion of the November 2014 examiner, that the Veteran has left knee strain due to military service, is in error. The examiner continued by opining that it was more likely than not that the current diagnosis of left knee degenerative arthritis, not due to military service, made by the January 2015 examiner, is the correct diagnosis and opinion. After a review of the record, the Board finds that the January 2015 and February 2015 VA opinions do not rise to the level of showing that the grant of service connection for a left knee strain was clear and unmistakable error. In this regard, the inadequacies of those opinions and the original November 2014 opinion, render the Board unable to state that the rating decision that granted of service connection was clearly and unmistakably erroneous. See Stallworth, supra. Specifically, the original November 2014 opinion considered the medical evidence of record, including the Veteran’s statements and supporting medical treatment evidence, and supported the conclusion with evidence in the record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notably, the examiner did not mention the reported injury to the left knee that occurred in 1979 or 1980, which the later examinations relied on extensively. Nonetheless, the November 2014 examiner found that the reports of onset of his left knee pain in the early 1990s after the right knee injury, and the later December 2007 records, which showed degenerative arthritis, supported the etiological reports by the Veteran. In this regard, the examiner’s opinion implicitly confirmed that the Veteran overcompensated for the right knee injury, stressing the left knee, and the activities of service aided in the progression of the disorder. The later opinions focus on a contradiction in the Veteran’s reports, in that he believes the left knee was either due to the wear and tear from his duties, or the overcompensation due to the right knee. However, the opinions are creating a logical fallacy, as the Veteran’s reports are not mutually exclusive, and the overcompensation in concert with wear and tear from his duties could have both caused and aggravated his left knee. Further, the January 2015 examiner relied on the reported injury in 1979 or 1980, with the corresponding knee operation, as the actual cause of the Veteran’s disability. However, the examiner described it as a “debridement” with no evidence that such actually occurred. Rather, as noted above, the evidence of record reflects that the operation on the left knee was exploratory and for examination purposes only. Moreover, as even the January 2015 and February 2015 opinions noted, there was nothing found on the scope, and there were no meniscal conditions found. Thus, the opinion is internally inconsistent as it relies on the occurrence of an injury and operation at that time, but relies on evidence which found no specific injury. In addition, the reported injury occurred in 1979 or 1980. Following such time, the Veteran had three additional periods of active service and periods of inactive service. If the examiners were relying on such injury, they did not consider adequately whether the injury clearly and unmistakably preexisted service, and was not clearly and unmistakably not aggravated by any of the subsequent periods of service. Rather, they concluded that the current knee disability was caused by such injury without any further rationale. Relevant to this discussion is the March 2008 Army LOD finding that a left knee disorder existed prior to service, and was aggravated by the period of service from July 2006 to February 2009. This finding was not considered by either later examiner in reaching their conclusions. Importantly, a service department finding that injury, disease, or death occurred in LOD “will be binding” on VA “unless it is patently inconsistent with the requirements of laws administered” by VA. 38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993). Here, there is no evidence which shows that abiding by the LOD determination would be patently inconsistent with the requirements of the law. Id. Accordingly, the Board cannot state that December 2014 grant of service connection was the kind of error that, when called to the attention of reviewers, compels the conclusion, to which reasonable minds could not differ, that the results would be manifestly different but for the error. See Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The later examiners’ opinions rely on the assumption that the Veteran was in fact injured prior to service, and uses an incorrect standard to state that such injury was not aggravated beyond the natural progression of the disease by service. In this case, the later opinions of record do not adequately rebut the original opinion, which implicitly related the left knee disorder to the right knee disorder, and referencing the in-service complaints of left knee pain and finding of arthritis. Further, the later opinions did not adequately contradict the service department LOD finding that the left knee was aggravated by his last deployment. Thus, in considering the evidence of record, it’s clear that the error identified by the RO was not undebatable, and the opinion in favor of direct service connection, service connection for a preexisting disability aggravated by service, and implicit opinion of secondary service connection, show the error would not have manifestly changed the outcome of the case. See Allen, supra. In this regard, the record is not clear as to the nature, onset, and extent of the Veteran’s reported in-service left knee injury. However, it is important to note that the issue before the Board is not whether the Veteran sustained a musculoskeletal knee injury in-service causing his current degenerative arthritis, or whether his right knee injury caused his left knee injury, or whether a left knee injury preexisted service and was aggravated therein; but is whether the RO’s decision to grant service connection for a left knee strain was clearly and unmistakably wrong. This is a very different standard. Consequently, while as noted above, the record is conflicts over the nature and etiology of the left knee disability, the Board concludes that the grant of service connection for a cervical spine strain was not “clearly erroneous”, and thus severance of service connection for this disability, effective July 1, 2015, was improper. Restoration of service connection is warranted. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonathan M. Estes 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.