Citation Nr: 21026619 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-10 005 DATE: May 3, 2021 ORDER Service connection for a right knee disorder is denied. FINDINGS OF FACT 1. A pre-existing right knee disorder was noted at service entry. 2. The preexisting right knee disorder did not increase in severity beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant, served on active duty from January 1976 to December 1979, July 2006 to May 2007, and April 2012 to May 2013. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for a right knee disorder. In July 2019, the Veteran testified at a Board videoconference hearing from the RO in Boise, Idaho, before the undersigned Veterans Law Judge in Washington, DC. The hearing transcript has been associated with the record. This case was previously before the Board in October 2019 and February 2021. In February 2021, the Board remanded the issue on appeal to obtain any outstanding service treatment and personnel records for the period of active service from April 2012 to May 2013, including a purported SF 600 Chronological Record of Medical Care with relevant evidence regarding the right knee condition. The RO associated all service personnel records with the claim file in February 2021. In February 2021, the RO also requested any service treatment records from the VA Record Management Center for the active duty period from April 2012 to May 2013; however, a negative response was provided indicating that no additional records were located, which is consistent with the Veteran's previous and subsequent report that he did not seek any treatment for his right knee during the period of active duty from 2012 to 2013 (see February 2021 correspondence and July 2019 Board Hearing Transcript). The Veteran was notified of the unavailability of any additional service treatment records in a February 2021 development letter. See February 2021correspondence; see also February 2021 VA memo, February 2021 DPRIS response. Therefore, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the February 2021 Board Remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). In this case, the Veterans Claims Assistance Act of 2000 (VCAA) notice requirements were satisfied by way of the January 2015 notice letter. The VCAA duty to assist has been met in this case. The complete service treatment records and all identified and available post-service treatment records are associated with the record. A VA examination with a medical opinion was provided in November 2015, and a supplemental VA medical opinion was obtained in February 2017 with adequate rationale. The RO also made attempts to obtain private treatment records from St. Lukes Nampa, Dr. Duffner, and East Texas Medical Center. The facility located at the address provided for Dr. Duffner indicated that Dr. Duffner was never on staff at that location, and St. Lukes Nampa indicated that they had no records as the Veteran was never seen at their location. Additionally, the RO was unable to obtain records from East Texas Medical Center because the RO is prohibited from paying the fee required to release the records. In a January 2020 letter, the Veteran was notified that he would have to obtain the records from East Texas Medical Center for them to be considered. To date, the Veteran has not provided any additional records from East Texas Medical Center. See January 2020 Development letter; see also January 2020 and December 2019 Reports of General Information, December 2019 VA 21-4141 Authorization for Release of Information. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in the appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Service Connection Legal Authority Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. A veteran will be 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, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease will be considered to have been aggravated by active 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; see Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 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. 38 C.F.R. § 3.306. 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. 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. Id. Service Connection for a Right Knee Disability is Denied. The Veteran specifically contends that he aggravated a preexisting right knee disability while on active duty in Afghanistan from April 2012 to May 2013. The Veteran testified that his duties in Afghanistan consisted of climbing on top of containers, hooking the sling load straps to the Chinook helicopters, and then jumping off the container, about 10-12 feet onto rough surface. The Veteran testified that in about January 2013 he sprained his right knee while jumping onto the uneven surface. The Veteran reports that, although he asserts that he experienced swelling, discomfort, and pain in the right knee at the time, he did not seek medical attention because he did not feel the purported injury was severe enough to remove him from his operations. Another reason the Veteran now offers for not reporting the alleged in-service injury is because he was days away from going home on rest and relaxation and did not want to risk being sent to Germany on a medical hold status if he reported his right knee pain. The Veteran asserts that he managed the right knee symptoms with ibuprofen provided by his roommate, who was a corpsman. The Veteran also asserts that he mentioned problems with the right knee after returning from deployment. See July 2019 Board Hearing Transcript; see also November 2016, February 2021 correspondence; February 2015 Statement in Support of the Claim. The Veteran acknowledged a history of breaking his knee before service while playing football in the 1970s. The Veteran also reported a right knee injury in 1977 during his first period of active service, when he was hit in the knee while playing football; however, he testified that soreness in the knee resolved and he had no problems with the knee after that. The Veteran testified that he had a subsequent civilian injury to the right knee anterior cruciate ligament (ACL) that was repaired in the 1993. The Veteran testified that he knew he would have problems with the knee at certain times due to the history of ACL injury 20 years earlier but asserts that he may have further damaged a ligament or cartilage in the knee during service in 2013. The Veteran contends he worked as a mail carrier after his final deployment, which required him to walk routes on uneven surfaces and stairs, further aggravating his knee with pain and swelling. Id. After a review of all the evidence of record, lay and medical, the weight of the lay and medical evidence shows that the Veteran both had a preexisting right knee disorder that was "noted" at entrance into service at an April 2011 examination, and that the preexisting right knee disorder did not increase in severity during service. Prior to the first period of active duty service, the September 1975 enlistment examination report revealed a six-inch scar on the right leg and knee due to a pre-service right femur fracture just above the knee resulting from a high school football injury that was treated with an open reduction pin repair and removal. Prior to the second period of active duty service, private treatment records show that the Veteran sustained a civilian ACL injury to the right knee in 1991, which was treated with an ACL reconstruction of the right knee in December 1993. Prior to the third period of active duty service, an April 2011 pre-service reserve examination report shows that the Veteran reported bilateral knee discomfort associated with exercise. The Veteran also reported a history of two pre-service right knee injuries and increased incidence of right knee pain and swelling with running. Examination of the right knee revealed healed surgical scars, minimal swelling, and full range of motion with no pain on palpation. A pre-service diagnosis of early degenerative joint disease (DJD), right greater than left was rendered, for which it was recommended that the Veteran use anti-inflammatory medications as needed, a knee sleeve for support with exercise, and follow up with his primary physician if symptoms worsen. See September 1975, April 2011 service treatment records; December 1993, January 1994, March 1994, May 1996 private treatment records. As a right knee disorder (femur fracture, torn ACL, and DJD of the right knee) was "noted" at service entrance, the Board finds the presumption of soundness at entry into service that began in April 2012 does not attach. 38 U.S.C. § 1111. Because a preexisting right knee disorder was noted at the time of entry into service, service connection for a right knee disability may be granted only if it is shown that the knee disorder worsened in severity beyond its natural progression during service, i.e., was "aggravated by" service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. If any in-service aggravation of a preexisting disorder noted at service entrance is shown, the in-service evidence of aggravation is considered sufficient to allow for service connection unless there is clear and unmistakable evidence that the disorder was not aggravated beyond the natural progression of the condition during service. See 38 C.F.R. § 3.306. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993). The primary question then is whether the preexisting bilateral knee disorder is shown to have increased in severity during active service. On the question of aggravation, in this case, the Board finds that the weight of the evidence shows that the preexisting right knee disorder that was noted at entrance into service did not increase in severity beyond a normal progression during service. As noted above, the September 1975 service enlistment examination report noted a scar on the right knee due to a pre-service football injury that resulted in a right femur fracture. During the first period of active service from January 1976 to December 1979, the Veteran sustained an additional football injury, as he was struck in the right knee by someone's head. Examination of the knee revealed limited range of motion and moderate edema over the distal end of the right femur; however, no fracture was seen on x-ray. Diagnosis was a contusion for which the Veteran was placed on light duty for 24 hours. See April 1977 service treatment record. The record is silent for any additional right knee complaints, symptoms, or treatment during the first period of active duty. The December 1979 service separation examination report shows that examination of the lower extremities was normal except for the right knee scar noted at service entrance. The Veteran's lay testimony and statements made during the November 2015 VA examination indicate that the right knee symptoms noted in April 1977 were not chronic, as the Veteran testified and reported that his right knee symptoms resolved following the April 1977 football injury with no residual complications. See July 2019 Board Hearing Transcript; November 2015 VA examination report. These lay reports are consistent with an August 1982 reserve examination report, which shows that the Veteran denied any complication or sequalae of the right knee, to include trick or lock knee; swollen or painful joint; or bone, joint, or other deformity. See December 1979, August 1982 service treatment record. Private treatment notes show an additional pre-service right knee ACL injury in 1991, that was surgically repaired in December 1993 prior to the Veteran's second period of active duty from July 2006 to May 2007. See December 1993, March 1994, May 1996 private treatment records. The June 2006 pre-active duty mobilization report of medical history shows that the Veteran endorsed a history of knee trouble and knee surgery prior to entering the second period of active duty. The service treatment records are silent for any treatment or clinical abnormalities of the right knee during the second period of active duty. An April 2007 demobilization examination report shows that the Veteran reported issues with the hip, knee, and leg pains, as well as joint soreness, but noted that all his symptoms had resolved. See June 2006, April 2007 service treatment records. The evidence shows a pre-service diagnosis of early DJD with clinical signs of mild swelling and full range of motion in the right knee during an April 2011 reserve examination encounter, prior to the third period of active duty. The service treatment records are also silent for any additional clinical abnormalities or treatment for a right knee disorder during the Veteran's third period of active duty from April 2012 to May 2013. This is consistent with the Veteran's lay reports that he self-treated any right knee pain or swelling with ibuprofen during his third period of active duty, as he did not feel any purported injury to the right knee sustained during his deployment in Afghanistan was severe enough to remove him from operations, and he did not want to risk being placed on medical hold status. See February 2015 Statement in Support of the Claim, July 2019 Board Hearing Transcript; February 2021 correspondence. A March 2013 demobilization interview shows that the Veteran reported a history of knee trouble and knee surgery, including a broken right knee in 1974 and a right knee ACL repair in 1993. The Veteran also endorsed some problems with right knee swelling and stiffness from walking on uneven surfaces; however, no clinical abnormalities of the right knee were observed at that time. See March 2011 service treatment record. Post-service treatment notes dated from 2013 through 2016 show that the Veteran reported that his right knee was bothersome with pain, swelling, and tenderness since he resumed his civilian job as a mail carrier for the Post Office when providing contemporaneous lay histories of the right knee. The Veteran also reported increased right knee pain in November 2015 when he stood up after working on his car and felt a pop. Imaging of the right knee continued to show mild tricompartmental degenerative changes status post the pre-service ACL repair. See August 2013, June 2014, February 2015, August 2015, November 2015, December 2015, December 2016 VA treatment records. The first mention of any re-injury of the right knee during service was during a January 2017 physical therapy consultation, when the Veteran reported a history of an ACL repair in 1995, and re-injury to the right knee while deployed in Afghanistan. The Board has considered the Veteran's recent lay contention that he aggravated his pre-existing right knee disability during his deployment to Afghanistan from 2012 to 2013; however; these recent lay assertions are inconsistent with and outweighed by other contemporaneous lay and medical evidence of record, which are silent for any report of an in-service right knee injury until years after service. The absence of any in-service reports of diagnosis, findings, or reference to treatment related to right knee while deployed to Afghanistan during the third period of active duty, under the facts of this case, is one factor, among other factors considered by the Board. The Veteran specifically reported and sought treatment for other musculoskeletal and non-musculoskeletal disorders during the third period of active duty service (including while in a combat/imminent danger zone from July 2012 to April 2013), such as right achilles heel pain, right shoulder pain, a wound to the right index finger, and ringing in the ears, without seeking treatment for problems with the right knee. See July 2012, September 2012, November 2012, December 2012 service treatment records. Given reports and treatment of other musculoskeletal problems during the deployment to Afghanistan, the presence of aggravation of the pre-existing right knee disorder would have likely been reported had it occurred. Additionally, service and private treatment records show a history of multiple injuries to the right knee area prior to the 2012 to 2013 period of active duty, including the pre-service right femur injury requiring surgical repair during high school and the pre-service 1991 right knee ACL tear and reconstruction in 1993. The April 2011 treatment note also shows a pre-service diagnosis of early DJD with mild swelling prior to the third period of service. See September 1975, April 2011 service treatment records; December 1993, March 1994, May 1996 private treatment records. Post-service treatment records also reflect no contemporaneous lay histories of re-injuring the right knee during active duty from 2012 to 2013 for many years after service separation, as the Veteran attributed the majority of his right knee symptoms to his civilian mail carrier duties or injuring the knee while working on his car and made no mention of re-injury to the right knee during service until 2017. See August 2013, June 2014, August 2015, November 2015 VA treatment records. Multiple lay histories presented by the Veteran for treatment purposes, which conspicuously make no mention of any in-service event or any symptom, is highly probative because an accurate history is essential to proper treatment for the symptoms of which the Veteran was complaining. This is consistent with the lay reports made during the November 2015 VA examination and in the February 2015 Statement in Support of the Claim, as the Veteran noted that symptoms of right knee pain, stiffness, and swelling began around 2000, 12 years prior to the start of active duty in 2012, when the Veteran became a mail carrier. He also reported a continuation of the pre-service right knee symptoms while deployed and Afghanistan and further aggravation of right knee symptoms when he resumed his post-service civilian job as a mail carrier due to constantly getting in and out of the postal vehicle, climbing stairs, and walking. See November 2015 VA examination report, February 2015 Statement in Support of the Claim. As previously noted, the Veteran asserts that he did not seek treatment for any right knee disability during the deployment to Afghanistan because he did not want to risk being placed on a medical hold and delaying his rest and relaxation. While the record does show that the Veteran reported a history of two pre-service right knee injuries, and he endorsed some symptoms of right knee pain, stiffness, and swelling during his demobilization interview in March 2013, the record does not indicate that the Veteran sought any treatment for the right knee disorder from 2012 to 2013. Moreover, the Veteran also reported that he was able to self-manage any symptoms of right knee pain and swelling with ibuprofen and that he did not feel his purported injury was severe enough to remove him from his military operations, which also weighs against in-service aggravation of the pre-existing right knee disability. See February 2015 Statement in Support of the Claim; July 2017 Board Hearing Transcript; November 2016, February 2021 correspondence. Such evidence weighs against finding an in-service aggravation of the right knee. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown that the record is complete and also that the fact would have been recorded had it occurred); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in service treatment records as evidence contradictory to a veteran's assertions if the service treatment records appear to be complete and injury, disease, or symptoms would ordinarily have been recorded had they occurred; Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded). The Veteran has not provided any medical opinion that the pre-existing right knee disability was aggravated by service. A VA examination and medical opinion was provided in November 2015. The examiner examined the Veteran, reviewed the record, and interviewed the Veteran about past and present symptomatology of the right knee. Imaging of the right knee continued to show the preexisting degenerative arthritis in the right knee. The examiner opined that it is less likely than not that the right knee disability was incurred in or caused by service, including a 1977 right knee contusion. The examiner reasoned that the right knee contusion injury in 1977 resolved promptly without residual both by the veteran's report and by silence in the service treatment records regarding prolonged symptoms or residuals. The examiner explained that a knee injury resulting in ACL strain or tear requiring ACL repair 16 years post-service separation would most likely have been associated with prolonged symptomatology and healing not found in the evidence. Further, while even an excellent result on ACL repair results in some laxity and change in knee biomechanics, the veterans tricompartmental degenerative joint disease is most consistent with a combination of aging, wear and tear as a postal carrier and active lifestyle, biomechanical changes from ACL repair, as well as possibly residuals from the initial pre-service femur fracture injury in high school. See November 2015 VA examination report. In a February 2017 addendum opinion, the VA examiner opined that the right knee disability, which existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The VA examiner explained that the natural history of degenerative joint disease is one of inexorable progression with symptoms and findings becoming generally more severe except in the absence of any usage of the affected joint whatsoever. While certain activities can certainly result in transient increases in symptoms, such as running, repetitive kneeling, and walking on uneven surfaces, the DJD condition itself is progressive over the time period of years (as the veteran noted in his February 2015 Statement in Support of Claim) and not significantly altered from its natural course over a relatively short period of time (13 months) in the absence of significant acute injury, of which no evidence is found in this case. The evidence shows that the veteran had significant symptoms of DJD in 2011 prior to deployment with provider recommendations of knee sleeve for support, daily anti-inflammatory medication treatment as needed, and PCP follow up. Additionally, the deployment separation questionnaire indicated expected symptoms reported with typical transient exacerbating activities but no acute trauma or injury to indicate aggravation beyond the natural progression and continued natural progression of DJD is recorded in subsequent VA treatment notes. See February 2017 VA examination report. Overall, the weight of the more contemporaneous and more probative evidence shows that there was no increase in the severity of the preexisting right knee disorder beyond a natural progression during service. This finding is supported by the contemporaneous lay reports during clinical evaluations that show that the Veteran reported a history of right knee injury in high school prior to service; denied any chronic symptoms of the right knee following an acute 1977 right knee contusion; re-injured the right knee in 1991 prior to service, endorsed intermittent problems with the right knee since approximately 2000 when he became a mail carrier; an April 2011 diagnosis of right knee DJD prior to service entrance in April 2012; the report of self- treatment of right knee symptoms during service, which were a continuation of symptoms that began prior to active duty as a result of mail carrier duties with no evidence of progression of the underlying disease during active duty; that the post-service lay reports made for the purpose of treatment of right knee symptoms related to his mail carrier duties, and the post-service imaging of the right knee that continued to show only mild tricompartmental DJD in the right knee after service. The November 2015 and February 2017 VA medical opinions indicate that the preexisting right knee disorder was not the result of service or aggravated beyond a natural progression during active service. This evidence, as well as the credible lay description of symptoms before, during, and after service, show that the preexisting knee arthritis did not increase beyond a natural progression during service. For these reasons, the Board finds that the weight of the evidence demonstrates that the Veteran's preexisting right knee disability that was noted upon service entrance did not increase in severity during (i.e., was not aggravated by) service as defined by 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. For these reasons, the appeal for service connection for right and left knee arthritis must be denied. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Shanna 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.