Citation Nr: 21030462 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 10-19 054 DATE: May 19, 2021 ORDER Entitlement to service connection for a left knee disability is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the evidence is at least in equipoise that the Veteran's preexisting left knee condition was aggravated beyond its natural progression during his active military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty from March 1985 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at a Travel Board hearing on February 7, 2020 in San Antonio, Texas before the undersigned Veterans Law Judge. A transcript of this hearing has been associated with the claims file. By way of history, the Veteran filed a petition to reopen a previously denied claim for service connection for a left knee disability in February 2009. The Agency of Original Jurisdiction (AOJ) denied the claim in the May 2009 rating decision on appeal, and the Veteran subsequently appealed the matter to the Board. In June 2016, the Board remanded the claim to the AOJ due to the Veteran's request for a hearing before the Board. As mentioned above, the Board hearing was held in February 2020. Subsequently, the Board issued a decision in April 2020 where the Board found that new and material evidence had been received to reopen the Veteran's claim for service connection for a left knee disability. The Board also remanded the claim to the AOJ for further evidentiary development, to include obtaining a VA examination. The Board finds that there has been substantial compliance with its April 2020 remand directives and as such, will proceed with appellate review. Entitlement to service connection for a left knee disability is granted. The Veteran contends his current left knee disability is related to his active duty military service. In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The record reflects that the Veteran has a current left knee disability. Private treatment records reflect that the Veteran has been diagnosed with medial and lateral meniscus tear of the left knee, chondromalacia of the left knee, and degenerative joint disease. Additionally, a VA examination from November 2020 indicates an assessment of left knee joint osteoarthritis, status post total knee replacement. Accordingly, the first Shedden element, a current disability, has been demonstrated. The record also contains credible evidence of the Veteran's in-service injury to his left knee. The Veteran testified at the February 2020 Board hearing that he injured his left knee during the second month of bootcamp. The Veteran stated that he was at a firing range participating in rifle training, and he attempted to get into a sitting position; when he did so, he reports that the drill instructor kicked his leg, causing his left leg to kick out and "hop back." The Veteran testified that he reported the injury to his drill instructors and was taken to a Naval Hospital for examination. Additionally, there are multiple instances noted in the Veteran's service treatment records (STRs) indicating treatment for left knee pain and stiffness while in service and noting a possible medial meniscus tear. See e.g., April 1985 STR notes. Accordingly, the second Shedden element is demonstrated. The Veteran also testified during the February 2020 Board hearing that he had experienced an injury to his left knee prior to enlistment into active service but was found fit for duty during his enlistment examination and allowed into basic training. The Veteran testified that the prior injury occurred in 1982 and was a torn meniscus in his left leg, as a result of a football injury. Relatedly, there is a presumption of sound condition upon entrance into active duty service unless a defect or disorder is "noted" on the entrance examination, and there is a presumption of aggravation of a preexisting condition if the preexisting condition worsens in severity during service. Clear and unmistakable evidence is required to rebut the presumption of aggravation, to include a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304(b), 3.306. There are different burdens of proof, as discussed below. The Veteran's February 1985 report of medical examination for enlistment indicates an abnormality of a lower extremity, which presumably is referencing his left knee. As such, the Board considers the Veteran's left knee condition to be noted on the entrance examination. Because the presumption of soundness does not apply, the Veteran may only bring a claim for aggravation of his current left knee condition. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). He has the burden of showing a worsening of the disability in service to trigger the presumption of aggravation. Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012); Wagner v. Principi, 370 F.3d 1089, 1095-96 (Fed. Cir. 2004). Temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to constitute aggravation unless the underlying condition, as distinguished from the symptoms, worsened. The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Similarly, where there is a noted preexisting condition that was asymptomatic at entry, and there is an exacerbation of symptoms in service, this does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The Board is now left to consider whether there is sufficient evidence of a nexus between the Veteran's current disability and his in-service injury, based on either the chronic disease presumption or a lay or medical link between the current disability and service, including incurrence or aggravation of a preexisting condition for the left knee. The Veteran submitted an opinion in April 2016 from his private orthopedic surgeon, Dr. M. B. The surgeon stated that the Veteran has been under his care since November 2010 and has been treated for left knee pain resulting from a medial and lateral meniscus tear, as well as chondromalacia of the patellofemoral joint, medial, and lateral compartments. Dr. M. B. indicated that "[a]ccording to the patient, he underwent a surgery on his [left] knee in 1982 and did not experience any symptoms until he sustained an injury to his left knee on or about May of 1985. At which time, he was kicked in his left knee during boot camp. He remembers that when he was kicked, his knee popped, and he felt immediate pain. The pain and weakness in his knee never resolved and he has continued with pain and symptoms which have worsened over time. It is certainly feasible that the contusion to the patient's [left] knee caused and/or aggravated the patient's [left] knee condition as the patient was asymptomatic prior to this injury. It is my opinion, given [the Veteran's] account of his injury in service, his resulting condition is very likely service related." The Veteran also underwent a VA examination for his left knee condition in November 2020. During the examination, the Veteran reported that he initially injured his knee playing football in 1982, but then re-injured his knee during his active service in 1985. The Veteran also indicated he recently had a left knee replacement in 2016. Regarding a nexus to service, the VA examiner stated that "[t]here are a lack of STRs indicating a knee condition during service. The only records of treatment are after the claimed injury at the rifle range, including the medical board report. There is a lack of treatment records after exiting service indicating a left knee condition. Records indicate that [the Veteran] did not have any complaints from 1986 until 2003. Due to the lack of evidence, a negative opinion is given. In response for the claimed condition of the left knee tendonitis with knee joint osteoarthritis with joint stability status post total knee replacement with meniscectomy, it was less likely than not incurred in or caused by the [Veteran's] military service." The Board finds that the competent medical evidence of a nexus between the Veteran's in-service injury and his current left knee disability is in relative equipoise. While there is disagreement between the November 2020 VA opinion and the April 2016 private opinion as to whether the Veteran's current left knee condition is related to his in-service injury, the Board finds that both opinions of record address the inherently medical question before the Board. They are based on a thorough review of the Veteran's pertinent history and each provider the underlying reasons for the conclusions reached. Thus, each is entitled to relatively equal probative weight. Given the roughly equal value of the evidence both for and against a finding of entitlement to service connection for a left knee disability, the Board finds that the evidence is in equipoise, which allows for the application of the benefit of the doubt doctrine and the granting the claim. Therefore, the Board will resolve doubt in the Veteran's favor and grant the Veteran's claims for entitlement to service connection for a left knee disability. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.