Citation Nr: 21030549 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-53 935 DATE: May 19, 2021 ORDER Entitlement to service connection for a right knee disability is denied. FINDING OF FACT The probative evidence of record does not show the Veteran's right knee disability, which clearly and unmistakably existed prior to service, was aggravated beyond natural progression by his active duty service. CONCLUSION OF LAW The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1964 to July 1964, and from January 1967 to June 1967. The claim was brought before the Board in January 2021 and was remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Further, every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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 (2012); 38 C.F.R. § 3.306 (a) (2020). In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. Entitlement to Service Connection: Right Knee Disability The Veteran contends that his right knee condition is related to or was aggravated by active duty service. The initial determination is whether a right knee condition was present prior to service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). In this case, the record evidence shows that no knee issues or conditions were noted on the Veteran's June 1963 pre-induction examination. Therefore, the presumption of soundness attaches with respect to this period of service. In order to rebut the presumption of soundness, there must be a two-step analysis. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. § 3.304 (b). However, the Board finds there is clear and unmistakable evidence that the Veteran's right knee condition existed prior to his June 1964 initial active duty service. The Veteran entered active duty on June 9, 1964. On June 14, 1964, he was seen for complaints of a "bad knee" and was diagnosed with osteochondral fracture of the right patella. During his medical visit, the Veteran reported that he fell twice prior to service while skating and injured his right knee with pain and swelling. He reported recurrent episodes of pain and catching since. The Veteran has also by his own admission stated he hurt his knee prior to active duty, to include in his May 2017 Notice of Disagreement. In December 2016, the Veteran was provided a VA examination. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural service by an any in-service event or injury. The examiner rationalized that medical records from June 1964 show the Veteran injured his knee prior to service. It was noted that the Veteran was erroneously inducted, and x-rays show a fracture of the right knee, which resulted in him being medically boarded that same year. The examiner found that this suggests the Veteran's right knee would have resulted in a state requiring surgery given his recurrent pain and usage whether he entered service or not. The examiner stated that to suggest otherwise would be purely speculative. In March 2021, an addendum VA opinion was obtained to consider the Veteran's second period of service, as well as his first period of service. The examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an any in-service event or injury. The examiner noted and listed the evidence of record reviewed, to include service records from both periods of his active duty. The examiner explained that following the Veteran's release from active duty in June 1964, he underwent surgery. He then reenlisted in January 1967 and reports his knee condition was exacerbated, which led to his osteoarthritis. The examiner noted that the Veteran was diagnosed with osteochondral fracture. The examiner explained that osteochondral fractures do not heal completely since the cartilaginous injury cannot scar and return to pre-injury state. Thus, the injury is prone to lead to early degeneration. The examiner further explained that as a result, the condition is prone to re-injury even if the Veteran never entered service. The examiner stated that repeated instability, catching, locking, pain, and effusion are common in chronic sequalae, particularly with surgical procedures that were conducted in the 1960s. The examiner further noted that the symptoms on his initial 1964 active duty were representative of flare-ups. The examiner found that there is no objective evidence or examination findings to support any claim of unnatural aggravation. The examiner lastly noted that despite notation of a lack of symptoms prior to his service, it would be expected that the condition would become symptomatic and flare-ups would occur with increased demand and activity. Therefore, the condition was due to the pre-service injury and was not evidently aggravated by service. The Board acknowledges the letter submitted by the Veteran from his private physician dated October 2017. However, the Board notes that the physician did not provide an actual opinion, but only noted that it is well known that joint injuries and surgery can contribute to the development of osteoarthritis later in life. The Board also notes that the physician did not address the Veteran's pre-service injury, and that the Veteran's surgery occurred in 1965, which was not during any period of active duty. Therefore, the Board finds the December 2016 and March 2021 VA opinions to be of significant probative value in determining that the Veteran's right knee condition was not aggravated by either of his periods of active service. The Board notes that the probative value of medical opinion evidence is based on the medical experts' personal examination of the patient, their knowledge, and skill in analyzing the data, and their medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Here, the reviewing physicians' opinions were based on review of the Veteran's lay contentions, his reported medical history, lay statements from his peers, and review of the medical evidence of record. Further, complete and thorough rationales were rendered for the opinions provided and are consistent with the medical evidence of record. The Board acknowledges the Veteran's assertions that his right knee disability was aggravated by service. The Board also recognizes that lay persons are competent to provide medical opinions on some medical issues. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, although the Veteran is competent to report his symptoms, any opinion regarding whether any knee disability is related to his service, to include as being permanently aggravated by service, requires medical expertise that the Veteran has not demonstrated since knee disabilities can have many causes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (2007). In light of the foregoing, the Board concludes that the preponderance of evidence is against the claim and the benefit of the doubt doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Negron, 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.