Citation Nr: 21039877 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 11-09 718 DATE: July 1, 2021 ORDER Entitlement to service connection for a right knee disability, diagnosed as degenerative arthritis, is granted. FINDING OF FACT The Veteran's right knee is presumed to have been in sound condition at his entrance to active duty service, that presumption is unrebutted, and the Veteran's current right knee disability featuring degenerative joint disease first manifested during (or is etiologically linked to right knee symptomatology during) that service. CONCLUSION OF LAW The criteria for service connection for right knee disability, diagnosed as degenerative arthritis, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In September 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the claims file. In February 2010, the Veteran originally filed claims to establish entitlement to service connection for right knee and right leg disabilities. In an October 2014 Board decision, the claim for service connection for a right knee disability was denied and the claim for a right leg disability was remanded. The right leg claim was remanded for a second time in July 2018. When the issue returned to the Board again in June 2020, the Board's decision at that time explained its determination that it was most appropriate to recharacterize the Veteran's claim for service-connection for a right leg injury to be a petition to reopen his previously denied claim for service connection for a right knee disability, and the issues were recharacterized accordingly. In the June 2020 Board decision, the Board granted the petition to reopen the claim for service connection for a right knee disability, and remanded the service connection claim. This case was previously before the Board in October 2014, July 2018, and June 2020. It has now again returned to the Board for further appellate review. 1. Entitlement to service connection for a right knee disability, diagnosed as degenerative arthritis, is granted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection for the claimed disorder, there must be evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a causal connection between the disease or injury in service and the current disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132, 1137. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes only such conditions as are recorded in examination reports, 38 C.F.R. § 3.304(b), and that history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id. at (b)(1). When the presumption of soundness applies, the law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarizing the effect of 38 U.S.C. § 1111 on claims for service-connected disability, in pertinent part: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed.Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner, 370 F. 3d at 1096. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As discussed in the Board's prior considerations of this case, service treatment records (STRs) document that the Veteran noted on his June 1966 pre-service examination that he had chronic knee problems. The Veteran checked the box for "yes" for a "trick" or locked knee and reported that he had cramps in his legs and had worn a brace. Additionally, there was mention that a doctor had indicated a possible need for surgery for his right knee. Although a note of chronic knee problems was initially written on his June 1966 medical examination report, this assessment was scratched out in July 1966, at which time it was noted that the Veteran's knees were determined to be "ok." In November 1966, shortly after entering service, the Veteran was seen for a re-injury of "an old knee injury" and an inability to flex greater than 10-15 degrees. X-rays were taken but came back as normal. The impression was questionable displaced medial semilunar cartilage on the right, line-of-duty. The Veteran's STRs are silent for any further knee complaints until April 1969, when the Veteran was concerned regarding a possible need for a knee operation prior to separating from service. It was noted that the Veteran's knees gave out when going from sitting to standing. Again, no abnormalities of the knee were found on examination and the Veteran was referred to orthopedics. A provisional diagnosis of chronic strained ligament was noted. According to the Veteran's July 1969 discharge medical history report, he did not have and had not had a "trick" or locked knee. His lower extremities were normal on physical examination in July 1969. In 2009, the Veteran was diagnosed with right knee osteoarthritis. VA treatment records dated from September 2009 to July 2010 contain a notation of osteoarthritis of the right knee. A VA joint examination, which included review of the claims file, was conducted in November 2010. Osteoarthritis of the right knee was diagnosed. After review of the record and examination of the Veteran, the examiner concluded that the Veteran's osteoarthritis was less likely as not related to military service because X-rays in service were normal, the Veteran was able to work after service as a truck/bus driver, there was no knee treatment for many years after service discharge, and osteoarthritis was not diagnosed until 2009. The Veteran testified at his video conference hearing in July 2014 that he had a preexisting right knee disorder that was aggravated by service. The Veteran testified that he had knee problems throughout service but did not seek medical attention because that was discouraged. He also said that he declined a knee operation before he left service because he just wanted to get out and be done with the military. A December 2014 VA examination report presents a medical opinion concluding that the Veteran's right leg condition, including knee condition, is at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that "Veteran was air mobile in Vietnam and had over 50 jumps from helicopter. Developed right knee pain which has been progressive and is now severe, affecting gait and balance, presenting as a neurological dysfunction of the right leg. There is a plausible direct and proximate causal relationship." In an April 2019 VA peripheral neuropathy (PN) examination report, the examiner noted that the Veteran did not have a PN diagnosis, but that the Veteran reported right leg neuropathy that started in 2009. The Veteran stated that he has had progressive problems with his right knee and felt numbness and tingling all around the right knee and at times it went down his leg to his right foot. Despite not having a PN diagnosis, the VA examiner reported that the Veteran had PN symptoms. The Veteran had moderate intermittent pain in his right lower extremity, mild paresthesia, and mild numbness. The April 2019 VA examiner remarked that there was no diagnosis of PN because there were no findings, signs, and or symptoms to support a diagnosis. In the examiner's opinion, the Veteran's symptoms of moderate intermittent pain, mild paresthesia, and mild numbness in the right lower extremity were due to his right knee condition and not an independent or separate diagnosis. The VA examiner opined that he was unable to conclude that there was any separate neurological disability of the right leg. Additionally, it appeared that the Veteran's right leg symptoms of numbness and tingling were due to the osteoarthritis of the right knee and the chronic nerve irritation related to the localized inflammation in the right knee area. In an April 2019 VA knee examination report, the Veteran was diagnosed with bilateral knee joint osteoarthritis. The Veteran stated that his right knee condition began when he was in service and jumped out of C-130 planes. He felt that his right knee was painful following these jumps. The Veteran reported that his right knee had bothered him ever since service and had gotten worse over time. He noted weakness and giving out. A knee replacement was suggested to the Veteran, but he was hesitant to agree to the surgery. In the opinion section, the examiner reported the Veteran's history of a possible knee condition that existed prior to service, but a presumption of soundness analysis was never performed. The examiner concluded that it was less likely than not that the Veteran's current right knee condition was caused by or incurred in service. The Board finds that the Veteran is entitled to application of the presumption of soundness with regard to the health of his right knee when he entered active duty service in this case. This is because there was no disability of his right knee clearly clinically noted or detected at the time of his service entrance examination's inspection of the joint. Regardless of suggestions of a history of knee problems, the presumption of soundness applies where the service entrance examination report shows that no right knee disability was clinically detected / noted. None of the Veteran's VA examinations dated in November 2010, December 2014, and April 2019, included a presumption of soundness analysis regarding the Veteran's right knee disability. Because of this, the Board's June 2020 remand of this issued directed that a new VA examination present opinions addressing queries pertinent to consideration of the presumption of soundness, to determine whether the Veteran had a right knee disability that preexisted service, and if so, whether it was aggravated during active service. The Board's June 2020 remand asked the VA examiner to specifically opine as to: "Whether any current right knee disability clearly and unmistakably pre-existed active service, and, if so, whether the disability was clearly and unmistakably NOT aggravated beyond the natural progression by active service." The resulting November 2020 VA examination report does not provide compliant responses to the Board's queries including application of the correct 'clear and unmistakable' standard for determination. However, the Board has carefully considered whether the November 2020 VA examiner's opinions together with the other evidence of record allows for a resolution of the claim at this time. The November 2020 VA examiner was presented with the Board's query in the correct terms regarding whether any current right knee disability clearly and unmistakably pre-existed active service, and in this context the VA examiner's opinion states: "... he may [have] had a pre-existing condition that he admitted to and may not have been fully disclosed and the service made him symptomatic." The Board finds that it is reasonable to interpret this answer as indicative that the degree of certainty expressed by the VA examiner's determination was speculative ("may") and less than a clear and unmistakable standard of determination. Furthermore, the November 2020 VA examiner was presented with the Board's query in the correct terms regarding whether any pre-existing right knee disability was clearly and unmistakably not aggravated by service, and in this context the VA examiner's opinion states: "it is more likely than not ... the service did not significantly aggravate or accelerate his natural aging of the knees...." The Board finds that it is reasonable to interpret this answer as indicative that the degree of certainty expressed by the VA examiner's determination was less than "clear and unmistakable," as the VA examiner declined to refer to this standard when asked to, and instead asserted a lesser "more likely than not" degree of probability. The Board additionally observes that the VA examiner's remark that the supposed pre-existing right knee disability was not disclosed until "the service made him symptomatic" actually comes closer to suggesting in-service aggravation than to indicating a clear and unmistakable demonstration of the absence of aggravation. Because the November 2020 VA examiner expressed less than a clear and unmistakable degree of certainty regarding both (1) whether any right knee disability pre-existed active duty service, and (2) whether any supposed pre-existing right knee disability was not aggravated during active duty service, the Board finds that the presumption of soundness has not been rebutted in this case. Rebuttal of the presumption requires a clear and unmistakable demonstration of both elements, and in this case neither has been demonstrated to a clear and unmistakable degree. The Veteran is presumed to have been in sound health, free of any right knee defect, at entrance to active duty. This presumption is unrebutted in this case. Accordingly, the Board proceeds to the remainder of the analysis of entitlement to service connection for the right knee disability. The Veteran is currently diagnosed with degenerative arthritis of the right knee, including as confirmed by the November 2020 VA examination report. The Veteran is shown to have experienced symptomatic right knee problems medically evaluated during active duty service, as documented in STRs discussed above. The first two Shedden elements for establishing entitlement to service connection have been satisfied. The Board also finds that medical opinions of record are at least in equipoise with regard to supporting a finding of an etiological link between the Veteran's in-service right knee problems and his current right knee disability. The November 2020 VA examination report's medical opinion includes the finding that the Veteran "clearly ... had prior problems with the knees in the service based on the medical record which would lead to degeneration of both knees." The December 2014 VA examiner's medical opinion found that the Veteran's right knee disability "is at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury.... There is a plausible direct and proximate causal relationship." These opinions are informed by review of the claims-file and are presented by competent medical experts; the Board finds that they are probative to the extent of these conclusions. Contrary medical opinions, featuring the November 2010 and April 2019 VA medical opinions, find that such an etiological link is unlikely, but the Board finds that these opinions are not significantly more persuasive nor more probative than the essentially supportive opinions presented in the December 2014 and November 2020 VA examination reports. The evidence does not lead the Board to unequivocal clarity in this matter. However, resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence sufficiently supports finding that the Veteran has a current disability of the right knee, diagnosed as degenerative arthritis, that began during / is etiologically linked to the Veteran's active duty military service. All three Shedden elements for establishing entitlement to service connection have been satisfied. To summarize: the Board finds that the evidence reasonably supports finding that (1) the Veteran has a current right knee disability diagnosed as degenerative arthritis; (2) there was in-service incurrence of a right knee injury / disability, with the Veteran's right knee presumed to have been in sound condition at entrance to active duty service; and (3) the current right knee disability is causally linked to the in-service symptomatic right knee problems. Accordingly, after resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for the right knee disability diagnosed as degenerative arthritis is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for right knee disability diagnosed as degenerative arthritis is warranted. The appeal is granted. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.