Citation Nr: 21031420 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 13-01 586 DATE: May 21, 2021 ORDER Service connection for a left leg disability is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. FINDING OF FACT Clear and unmistakable evidence establishes that a left leg disability pre-existed service and was not aggravated beyond the natural progression therein. CONCLUSION OF LAW The criteria for entitlement to service connection for a left leg disability have not been met. 38 U.S.C. §§ 1101, 1110, 1111, 1112, 1137, 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 May to August 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2012 by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. These matters were previously before the Board as a single claim for service connection for a left knee disorder, to include degenerative bone disease, in December 2016, at which time it was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Memorandum Decision, the Court vacated the Board's December 2016 decision and remanded for further action. Specifically, the Court found that the Board did not provide an adequate reasons and bases for denying the claim, as the Board did not properly address the nexus between the current disability and an in-service injury. The Court also found that the Board mischaracterized the issue before it. Subsequently, in March 2019, the Board remanded the claim to provide the Veteran with a VA examination. Such was obtained in December 2019 and the claim was returned to the Board in September 2020. At that time, the Board found that the December 2019 examination was inadequate, as the examiner failed to address whether the Veteran's pre-existing left leg disability (the result of a pre-service motor vehicle accident) was aggravated by his military service. Further, the examiner failed to address whether certain symptomatology of the left knee was related to the Veteran's knee disability. The examiner also erred when she addressed pre-entry knee pain, as this finding was contrary to the Court's finding that the Veteran's left knee was found to be sound at entry. The Board then remanded the claim (which was expanded to include the matters listed herein) for an additional VA examination. As an aside, the Board notes that the Veteran challenged the qualifications of the examiner who provided the December 2019 VA medical opinion. See Francway v. Wilkie, 930 F.3d 1377, 1380 (Fed. Cir. 2019). In its September 2020 remand, the Board asked that attempts be made to obtain a resume or CV from the examiner. Multiple attempts to do so were made. However, as the Board has found the December 2019 opinion is inadequate, this challenge to the examiner's qualifications has been rendered moot. In December 2020, the Veteran's claims file was provided to a VA physician for the purposes of providing a medical opinion which addressed whether the Veteran's left leg disability (which clearly and unmistakably existed prior to service) was not aggravated by service; whether his left knee disability had its onset during service, within one year of service separation, or was otherwise due to service, to include the in-service left knee injury; whether his current left knee disability was caused by any left leg disability; and whether the Veteran's left knee disability was aggravated beyond its natural progression by any diagnosed left leg disability. For the reasons set forth below, the Board finds that the December 2020 examination report is adequate only to the extent of deciding the Veteran's claim of entitlement to service connection for a left leg disability; the left knee claim requires additional development. Service Connection 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. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. Where a pre-existing disease or injury is noted on the entrance examination, section 1153 provides that "[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; 38 C.F.R. § 3.306 (a). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the veteran's service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Generally, as a matter of law, the presumption of soundness may be rebutted by clear and unmistakable evidence consisting of an appellant's own admissions during clinical evaluations of a pre-service history of symptoms. Thus, in the absence of any contention that the appellant never made the statements attributed to him (reporting pre-existing symptoms), those statements alone may rebut the preexistence prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 237-38 (2012) (citing Doran v. Brown, 6 Vet. App. 283, 286 (1994)). Likewise, a later medical opinion based on statements made by the veteran about the pre-service history of his condition may be sufficient to rebut the preexistence prong of the presumption of soundness, notwithstanding the lack of contemporaneous clinical evidence or recorded history. Harris v. West, 203 F.3d 1347, 1349 (Fed. Cir. 2000); Horn, 25 Vet. App. at 237-38. Here, the lay and medical evidence of record clearly and unmistakably demonstrates that the Veteran incurred a left leg disability prior to his May 1968 entrance into service. On a May 1968 pre-service report of medical history, the Veteran explained that he had an operation on his left knee at age 18, which was noted as a fracture of the left leg, occurring in 1966. Although negative for a notation of a left leg disability, his May 1968 entrance examination reflects a notation of a "large scar L leg." In addition, the Veteran has consistently reported a history of a pre-service left leg injury. Accordingly, the Board finds the evidence clearly and unmistakably establishes a pre-existing left leg disability, and therefore, this case presents the question as to whether there is clear and unmistakable evidence such disability was not aggravated by service. As pertinent to the Veteran's left leg disability, a pre-existing injury or disease will be considered to have been aggravated by active where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. Mere temporary or intermittent flare-ups of a pre-existing injury or disease during service are insufficient to be considered "aggravation in service", unless the underlying condition, itself, as contrasted with its mere symptoms, has worsened. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845 (Fed. Cir. 2006). The claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. Concerning in-service symptoms, Veteran was placed on temporary restrictive duty in June 1968 as a result of a left femur fracture that occurred prior to service, which forbade crawling, stooping, running, jumping, prolonged standing, or marching for two months, and it was recommended that he be transferred to the special training unit. When seen in July 1968, it was noted that the Veteran's medical history was significant for an old fracture of the left femur and that current findings included a one-inch shortening of the left leg and that he walked with a noticeable limp. In July 1968, it was recommended that the Veteran be separated from service due to the left leg and back pain he experienced due to his pre-service injury. The July 1968 separation exam notes a post fracture status and large scar for the left leg and the determination that the Veteran was not qualified for enlistment into the armed services. In June 1981, the Veteran was seen for complaints of left leg pain of 2 weeks' duration. At that time, it was determined that the leg pain was secondary to the fracture, pinning and removal of the pin. The Veteran was given a diagnosis of probable arthritic changes, second to hip trauma and pinning. As the Board previously found that the opinion rendered by a December 2019 VA examiner was inadequate to decide the claim in the September 2020 remand, that opinion is afforded no probative weight and will not be discussed further herein. Conversely, and as noted in the introduction, the Board finds the opinion provided by a VA physician in January 2021 is sufficient to determine the issue of entitlement to service connection for a left leg disability. At that time, and following a very detailed review of the Veteran's file, the examiner concluded that the left leg disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by any in-service injury, event or illness. She cited in detail to the medical records from the Veteran's roughly 84 days of military service, noting explanations of the pre-service injury and its treatment, to include the implantation and removal of a metal rod to treat the condition. She noted the Veteran's separation examination in June 1968, at which time the Veteran's left leg was x-rayed. Although the Veteran reported left leg pain at that time, the x-ray showed no significant objective findings of a left leg disability at that time. She noted that the available post-service records did not show any recurrent or chronic left leg or femur condition, other than the Veteran's shorter left leg which was a residual of the pre-service fracture. Thus, she found no aggravation of the pre-existing disability by military service. The Board affords significant probative value to the January 2021 VA physician's opinion as it reflects consideration of all relevant facts, specifically citing to service treatment records, VA and private treatment records, and the Veteran's lay statements. In addition, it includes detailed rationale for the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). There is no medical opinion to the contrary. The examiner's conclusion, and thus the probative value of the opinion, is bolstered by the fact that the Veteran was seen once, 13 years after discharge, for left leg pain which was determined to be related to the initial injury, and did not recur. Therefore, based on the January 2021 VA physician's opinion, the Board finds the pre-existing left leg disability clearly and unmistakably was not aggravated by service beyond the natural progression of the disorder. The Board acknowledges the Veteran's contentions that there was an aggravation. In this respect, a layperson without medical training is not qualified to render a medical diagnosis or medical opinion concerning the etiology of a left knee disability as such concerns an internal physical process extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The evidence does not show that the Veteran possesses the requisite training or credentials needed to render such opinion. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). As such, the Board does not afford the Veteran's lay statements significant probative value. In summary, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a left leg disability. The disability clearly and unmistakably pre-existed service and was not aggravated beyond the natural progression therein. Consequently, service connection is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The claim is denied. REASONS FOR REMAND Although the Board sincerely regrets further delay, it must find that the December 2020 opinion is inadequate for purposes of deciding the Veteran's remaining claim, for the following reasons. In response to the Board's remand questions, the December 2020 examiner concluded that it was less likely than not that the Veteran's left knee disability had its onset during service, within one year of service separation, or was otherwise related to service, to include the conceded in-service left knee injury. In support of this conclusion, she explained that the Veteran first reported left knee pain around 2008, which was 40 years after his discharge. However, review of the record shows that the Veteran first reported left knee pain as early as 1975. A medical report from a private physician showing treatment from September 1975 to March 1976 is of record. The September 1975 record notes the Veteran had recent discomfort in his left knee. The examiner noted the 1966 motor vehicle accident, and acknowledged the Veteran's reports that his left knee symptoms began shortly following the accident. The Veteran was reevaluated approximately one month later and the examiner noted that the examination was normal, and the Veteran had been essentially asymptomatic since he was last seen. In March 1976, the Veteran returned for complaints of left knee pain after being recently struck over the proximal third of the tibia by a heavy chain. He was experiencing considerable discomfort in this area. The Veteran was using crutches, with touch-down weight bearing on the left. The examination of the left knee and left leg was normal except for the slight ecchymosis over the medial aspect of the proximal third of the tibia which was exquisitely tender. An x-ray of this area showed no evidence of acute bone injury. The examiner's diagnostic impression was contusion of the left leg. VA treatment records reveal the Veteran was seen in July 1984 for complaints of left knee pain. In a September 1984 statement in support of a claim, the Veteran reported that his knee was "first hurt in a vehicle accident in 1966 prior to military service. The knee was reinjured in 1968 while running during basic training." In sworn testimony before the Board in August 1993, the Veteran testified that although the records were unavailable, he sought treatment at a hospital during the late 1960s. The Veteran specifically mentioned that in 1968 he was given pain medication and knee pads from this hospital. Thus, it is clear from the record that the Veteran did, in fact, have multiple complaints of left knee pain in closer proximity to service than the year 2008. Because the examiner relied on the perceived absence of such in developing her opinion, the Board finds it is inadequate. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). Thus, a new examination is warranted. Finally, as concerns the questions of whether the Veteran's left knee disability was caused by any left leg disability, and whether the Veteran's left knee disability was aggravated beyond its natural progression by any diagnosed left leg disability, which were asked in its previous remand, the Board finds that these questions have been rendered moot by its decision above and, thus, need not be addressed by the examiner. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the etiology of any current left knee disability. For each knee disability identified, the examiner is asked to opine as to whether it is at least as likely as not (that is, a 50 percent probability or greater) that the left knee disability had its onset during service, within one year of service separation, or is otherwise related to his active duty service, to include the conceded in-service left knee injury. The examiner is asked to address the June and July 1968 notations of left knee pain, as well as the post-service treatment records detailed above. The examiner is also reminded that the Veteran's left knee is presumed to have been sound at service entry and that an in-service injury to the knee has been conceded. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jeremy J. Olsen, 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.