Citation Nr: 21042020 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 15-38 721 DATE: July 11, 2021 ORDER Entitlement to service connection for asthma, to include as due to asbestos exposure is denied. Entitlement to service connection for emphysema, to include as due to asbestos exposure is denied. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure is denied. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure and/or other respiratory conditions is denied. Entitlement to service connection for a left knee condition is denied. FINDINGS OF FACT 1. The Veteran was likely exposed to asbestos during his active duty service. 2. The competent and probative evidence of record does not demonstrate that the Veteran's asthma began during or is etiologically related to his active duty service, to include as due to asbestos exposure. 3. The competent and probative evidence of record does not demonstrate that the Veteran has a diagnosis of emphysema. 4. The competent and probative evidence of record does not demonstrate that the Veteran's COPD began during or is etiologically related to his active duty service, to include as due to asbestos exposure. 5. The competent and probative evidence of record does not demonstrate that the Veteran's sleep apnea began during or is etiologically related to his active duty service, to include as due to any respiratory conditions and/or asbestos exposure. 6. The competent and probative evidence of record does not demonstrate that the Veteran's left knee condition began during or is etiologically related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma, to include as due to asbestos exposure have not been met. 38 U.S.C. § 1155, 5107 (b) (2012); 38 C.F.R. § 3.303, 3.309, 3.310 (2020). 2. The criteria for service connection for emphysema, to include as due to asbestos exposure have not been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. § 3.303, 3.309, 3.310. 3. The criteria for service connection for COPD, to include as due to asbestos exposure have not been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. § 3.303, 3.309, 3.310. 4. The criteria for service connection for sleep apnea, to include as due to asbestos exposure and/or other respiratory conditions have not been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. § 3.303, 3.309, 3.310. 5. The criteria for service connection for a left knee condition have not been met. 38 U.S.C. § 1155, 5107 (b); 38 C.F.R. § 3.303, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1973 to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2014 and March 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2018. The Veteran's spouse, M.R., was present as a witness. A transcript of the hearing is of record. In an April 2019 decision, the Board denied service connection for emphysema, asthma, COPD, and sleep apnea, and remanded the claim for service connection for a left knee condition. The Veteran appealed the Board's April 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Order, the Court set aside the April 2019 decision, regarding the denied claims, and remanded the matter to the Board for further development. The Board also remanded again the issue of service connection for a left knee condition in September 2019. The Board remanded all of the above issues in December 2020. The Board finds there has been substantial compliance with its December 2020 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) 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) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Additionally, a disability that is proximately due to, or results from, another disease or injury for which service connection has been granted, will be considered part of the original disorder. 38 C.F.R. § 3.310 (a). Moreover, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (finding service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim... even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Although all the evidence of record has been thoroughly reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). The analysis in this decision focuses on what the evidence shows or fails to show with respect to the matters decided herein. The Veteran should not assume that pieces of evidence not explicitly discussed herein have been overlooked. See Allday v. Brown, 7 Vet. App. 517, 527 (1995) (finding that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for asthma, to include as due to asbestos exposure, entitlement to service connection for emphysema, to include as due to asbestos exposure, and entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure The Veteran asserts that his respiratory diseases are due to exposure to asbestos during service. Initially, regarding the Veteran's military occupational specialty (MOS), his DD-214 reflects he was an Electrical/Mechanical Equipment Repairman (MOS code DG-9760). With respect to claims involving asbestos exposure, there is no specific statutory or regulatory guidance. However, the VA Adjudication Procedures Manual (M21-1), although not binding on the Board, contains relevant provisions, which includes a table that characterizes the probability of exposure to asbestos for various Navy military occupational specialties, ranging from minimal to highly probable. See M21-1, Part IV, Subpart ii, 1.I.3.d. An electronics technician is listed as having a probable risk of exposure to asbestos. Id. Accordingly, the Board concedes probable exposure to asbestos. Service treatment records are silent for any complaints, treatment, or diagnosis of a respiratory condition. Although the Veteran has reported that he had a chest X-ray during the 1980's which showed a respiratory disorder (a lesion on his lung), the Veteran failed to respond to a letter from the RO in December 2020 requesting his assistance in obtaining such records. Regardless, the Board notes that even if an abnormality of the lung had been noted at that time, this would have been many years after separation from service which was in 1974. In a September 2013 VA treatment record, it was noted that the Veteran was new to VA HCS, and had a history of seasonal allergies and symptoms of asthma with exposure to allergens. The Veteran had not required the use of inhalers for 10 years. In a March 2015 VA examination, the Veteran informed the examiner he began to notice problems with breathing approximately one year following his separation from service, which he described as feeling like he was unable to "get enough air in." He denied any current treatment for asthma or emphysema; he stated prior to being treated for his allergies he had more respiratory problems and shortness of breath and used an inhaler for a period of time. He stated that on occasion he would use his wife's inhaler because he could not get enough air in. In the March 2015 VA opinion, the examiner determined that the Veteran's asbestosis was less likely than not related to service. Examination revealed no evidence of a diagnosis of asbestosis and the examiner noted that a review of objective medical data was silent for a diagnosis of asbestosis. The examiner explained that a review of creditable medical literature does not equate to a diagnosis of asbestosis based on exposure alone. Further, the examiner noted that the Veteran has been diagnosed with COPD and asthma in the past and that creditable medical literature did not support a relationship between exposure to asbestos and the development of these conditions. The examiner found it was less likely than not that the Veteran's respiratory diseases were related to his active duty service, reasoning that the Veteran only spent 10 months on active duty and that he had a longstanding history of smoking (from age 11 to 59), along with significant exposure to secondhand smoke, which would have led to his current respiratory problems. The examiner further opined that the weight of the medical evidence was against asbestos exposure leading to the development of asthma years later. The Veteran's treatment report and records were silent for a diagnosis of asthma and the Veteran was not currently being treated for asthma. Current PFTs were suggestive of asthma but did not confirm the diagnosis. In an October 2017 VA treatment record, it was noted after a CT scan that the Veteran had lower lobe chronic lung emphysematous changes with calcified granuloma RUL. The Veteran had a clinical history of chronic smoking. In a February 2018 treatment record, the Veteran denied asthma, cough, stridor, emphysema, and wheezing. In a March 2018 VA treatment record, it was recommended to the Veteran that he quit smoking; however, he stated he was not ready. At the December 2018 Board hearing, the Veteran testified that he noticed coughing and sneezing but that could have also been other things during service. Afterwards, he never had pneumonia, but ended up catching it. He said that within "a year or so" after leaving service he started noticing that he was having trouble with his breathing. He said his cough developed in 1975 and he had more trouble with bronchiole issues in the 1980s. The Veteran said it was discovered on a chest x-ray that he had a quarter lesion on his left lung. He also said that a doctor told him he had a "touch of emphysema." In a March 2021 VA examination, there was no established diagnosis of emphysema. The Veteran had been prescribed albuterol inhaler in 2015 for reactive airway disease. The examiner noted that the Veteran smoked cigarettes since he was 11 years old and smoked 1 to 2 packs per day. The examiner also noted that the Veteran had increased airway resistance which was likely due to underlying smoking history. In a separate March 2021 VA opinion regarding the Veteran's claim for emphysema, the examiner, after reviewing the conflicting evidence, determined that there was no established diagnosis of emphysema. The examiner said that the Veteran had chest CT scans completed as a screening test due to smoking. The examiner noted that emphysematous changes were radiographic terms/findings and did not establish a diagnosis of emphysema in and of itself. The PFT test did not support any emphysema. The examiner, in addressing the Veteran's statements, found that the statement presented by the Veteran was unsubstantiated by medical records of evidence. Additional post-service treatment records are silent for any evidence that would show the Veteran to have a diagnosis of emphysema or to show that any diagnosed respiratory conditions are related to service. Overall, the evidence of record does not show that the Veteran's current respiratory conditions was caused by service, to include asbestos exposure. The evidence shows that there were no complaints, treatment, or diagnosis of a respiratory condition in service. The first finding of any respiratory condition in the records is over 30 years following separation from service; thus, there is no evidence of continuity of symptomatology. Even if the Veteran was shown to have had an x-ray abnormality in the 1980's based on his testimony, there is no basis for concluding that it was related to service as this would have been many years after service. Additionally, the Veteran has a very long history of smoking, noted by the 2021 VA examiner that he smoked since he was 11 years old, 1 to 2 packs per day. Finally, the most probative and competent evidence of record are the VA opinions, which were based on a thorough review of the record, including the Veteran's lay statements. This evidence, in total, is determinative in finding that the Veteran's respiratory conditions are not related to service. There are no medical opinions to the contrary. Regarding the Veteran's emphysema, the Board recognizes that the Veteran has indicated that his VA physician has informed him he has emphysema. Specifically, at his December 2018 hearing before the Board, the Veteran testified that his VA doctor told him he had a "touch of emphysema." However, medical records associated with the evidence of record before the Board are silent for a diagnosis of emphysema other than the CT scan report which the VA examiner later noted was insufficient to show a diagnosis of emphysema. The Board finds that the VA examiner's opinion that the Veteran does not have a diagnosis of emphysema to be more probative than the Veteran's statements that this condition has been diagnosed. Absent a diagnosis of emphysema, service connection is not warranted. See Brammer, 3 Vet. App. at 225. The Board has also considered medical literature submitted by the Veteran which discusses a relationship between respiratory diseases and asbestos exposure. However, the Board finds these articles are of very little probative value because they are general in nature, do not relate to the specific facts of circumstances of the Veteran's case, and are not accompanied by the opinion of any medical expert. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998) (holding that a medical article or treatise can provide support for a claim, but must be combined with an opinion of a medical professional and be reflective of the specific facts of a case as opposed to a discussion of generic relationships); see also Libertine v. Brown, 9 Vet. App. 521, 523 (1996) (finding that generic medical literature, which does not apply medical principles to the facts of an individual case, does not constitute competent evidence). The Veteran has offered his own opinion on etiology, stating that the Veteran's respiratory conditions were caused by asbestos exposure. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, the Veteran was not competent to diagnose his symptoms as a specific disease, nor was he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board affords more probative weight to the VA examiners' opinions than the Veteran's contentions, and, again, there are no medical opinions to the contrary. The Board has considered the doctrine of giving the benefit of the doubt under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that the Veteran's respiratory conditions were caused by service, to include asbestos exposure, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for asthma, emphysema, and COPD, to include as due to asbestos exposure, is not warranted. 2. Entitlement to service connection for sleep apnea, to include as due to asbestos exposure and/or other respiratory conditions The Veteran asserts that his sleep apnea was due to exposure to asbestos during service. Alternatively, the Veteran asserts that his sleep apnea is secondary to his respiratory disorders. However, given that the Board is denying service connection for all respiratory disorders, service connection on a secondary basis is moot, and the Board will only consider direct service connection. Service treatment records show that upon entrance in December 1973, the Veteran reported a history of frequent trouble sleeping. Insomnia was noted. Despite the notation of insomnia though, service treatment records are silent for any complaints, treatment, or diagnosis of sleep apnea. In a September 2013 VA treatment record, it was noted that the Veteran had a sleep apnea study a few years ago. In a March 2015 VA examination, the examiner noted a diagnosis of sleep apnea in 2011. In a separate March 2015 VA opinion, the examiner opined that the Veteran's sleep apnea was less likely than not related to asbestos exposure. The examiner determined that there were no definitive symptoms related to sleep apnea or diagnosis of sleep apnea in the service treatment records. Additionally, asbestos exposure was not an etiological factor for sleep apnea. The examiner referenced UpToDate and found that the most important risk factors for sleep apnea were advancing age, male gender obesity, and craniofacial or upper airway soft tissue abnormalities. Additional risk identified in some studies included smoking, nasal congestion, menopause, and family history. In another March 2015 VA examination, the Veteran reported being diagnosed with sleep apnea more than 10 years ago. He did not use a CPAP machine at the time of diagnosis; he started using a CPAP machine in 2011. The examiner opined that the Veteran's sleep apnea was less likely than not related to service. The examiner reasoned that the Veteran was not diagnosed with sleep apnea until 37 years after service, based on objective data available to the examiner. There was no evidence of sleep apnea symptoms during his military service. The Veteran had a BMI of 42.03, which put him in the morbidly obese category for his height and weight and increased his risk of developing sleep apnea. The weight of creditable medical evidence did not support that exposure to asbestos caused sleep apnea. At the December 2018 Board hearing, the Veteran testified that in the early 2000s he was driving and without warning "I just went (inaudible) and I almost hit a car coming the other way." He said he saw a doctor and was told he had sleep apnea. The Veteran's wife, M.R., said that she noticed he snored loudly when she first met him. In a February 2021 VA opinion, the examiner determined that the Veteran's sleep apnea was less likely than not related to service. The examiner reviewed the evidence and stated that there was no diagnosis of asbestosis and the Veteran developed sleep apnea 37 years after service. The usual causes of sleep apnea were aging and obesity which were present in the Veteran. There was no pathophysiological pathway linking pulmonary disease to sleep apnea. Additional post-service treatment records are silent for any evidence that would show the Veteran to have sleep apnea related to service, to include his asbestos exposure. Overall, the evidence of record does not show that the Veteran's sleep apnea was caused by service, to include asbestos exposure. As stated above, the Board will not address any secondary theories of service connection to a respiratory disorder as the Board has denied service connection for a respiratory disorder. The evidence shows that there were no complaints, treatment, or diagnosis of a sleep apnea in service. The first finding of sleep apnea in the records is over 30 years following separation from service; thus, there is no evidence of continuity of symptomatology. Finally, the most probative and competent evidence of record are the VA opinions, which was based on a thorough review of the record, including the Veteran's lay statements. This evidence, in total, is determinative in finding that the Veteran's sleep apnea is not related to service. The Veteran has offered his own opinion on etiology, stating that the Veteran's sleep apnea was caused by service, to include asbestos exposure. The Board acknowledges that the Veteran is competent to describe his symptoms without any specialized knowledge or training. Layno, 6 Vet. App. 465. However, as a layperson, the Veteran is not competent to diagnose his symptoms as a specific disease, nor is he competent to render a nexus opinion regarding the etiology of any current disorder; both of these determinations require medical expertise. Jandreau, 492 F.3d 1372. Therefore, the Board affords more probative weight to the VA examiners' opinions than the Veteran's contentions, and there are no medical opinions to the contrary. The Board has considered the doctrine of giving the benefit of the doubt under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that the Veteran's sleep apnea was caused by service, to include asbestos exposure, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for sleep apnea, to include as due to asbestos exposure and/or secondary to the Veteran's respiratory disorder is not warranted. 3. Entitlement to service connection for a left knee condition The Veteran asserts that his left knee condition is related to service. The Board notes that the Veteran and medical providers have noted that the Veteran incurred an injury to his left knee years before service. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The term "noted," in 38 U.S.C. § 1111, refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304 (b). A "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no pre-existing condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). 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 pre-existing and not aggravated by service. "In order to invoke the presumption of soundness, a claimant must show that he or she suffered from a disease or injury while in service." Horn v. Shinseki, 25 Vet. App. 231, 236 (2012); see Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) (explaining that the application of the presumption of sound condition does not "relieve the veteran of the burden of showing that the veteran suffered from a disease or injury while in service"); Dye v. Mansfield, 504 F.3d 1289, 1293 (Fed. Cir. 2007) ("The presumption of sound condition addresses the situation where a question arises whether a veteran's medical problems that arose during service existed before he joined the armed forces and, therefore, were not incurred in [the] line of duty."). Thus, as the United States Court of Appeals for Veterans Claims has previously explained, "before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service." Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012). Service treatment records show that upon entrance in December 1973, it was noted that the Veteran injured his left knee prior to service. There was no indication of any left knee condition upon examination at that time. A service record dated in July 1974 notes that the Veteran had a bicycle wreck 6 years ago with damage to both knees. He had been jumping off a ramp and landed on both knees suffering lacerations and contusions. He said that the left patella was "knocked out of place" and had to be reduced at the hospital. Since then he had noted occasional discomfort after walking a short distance and while climbing stairs. Recently these episodes had created more intense pain for longer periods and dull aching pain at night. Following examination, the impression was chondromalacia patellae. He was prescribed light duty. A service record dated in August 1974 noted the Veteran had been evaluated for bilateral patellar malacia and had been on light duty. It was noted that he had been on duty approximately 8 months, and had EPTE [existed prior to enlistment] knee pain bilaterally It was noted that he had an old injury to the knee 7 years ago. A September 1974 service consultation sheet noted that the Veteran complained of having knee pain for two to three months. He was treated for bilateral chondromalacia with a recommendation of no kneeling. He reportedly had no relief from Indocin. The orthopedic clinic to which he was referred noted a diagnosis of bilateral chondromalacia which EPTE. In an October 1974 medical board report, it was noted that initial episodes of knee pain occurred while in bootcamp. This improved, but since being on shipboard duty, the Veteran had noticed marked worsening of bilateral knee pain. The examiner found a diagnosis of bilateral chondromalacia, patellae. It was the opinion of the medical board that the Veteran was not fit for duty due to a physical disability, which neither incurred in nor was aggravated by a period of active service. The Veteran was presumed to have been sound when he entered service with regard to his left knee condition. However, the Board concludes that the Veteran's left knee condition pre-existed service, based on the notation in the December 1973 entrance examination, as well as the Veteran's and medical providers' statements of a left knee injury prior to service. The medical board report from during service is a medical opinion signed by two doctors which is uncontradicted. Therefore, the evidence of record clearly and unmistakably establishes that the Veteran's left knee condition, existed prior to service. In a June 2013 statement, the Veteran's wife, M.R., said that she had known the Veteran since 1990, were married in 1991, and he had trouble with his left knee since she met him. His knee had worsened over the years. In another June 2013 statement, the Veteran said that although he did suffer a left knee injury when he was 14, that injury had fully healed prior to entrance into service. He said he was declared qualified for enlistment without any notations regarding a left knee condition. In a September 2013 VA treatment record, the Veteran reported a history of injury to his left knee at age 14. He said at the time he did not receive medical attention. He later joined the military and after 10 months his left knee gave out and he fell. The Veteran was subsequently discharged from service. In a March 2014 VA examination, the examiner noted diagnoses of left knee chondromalacia patellae, diagnosed in 1974, which had resolved, left knee torn medial meniscus, diagnosed in 2014, and left knee bursitis medial compartment, diagnosed in 2014. In a separate March 2014 VA opinion, the examiner determined that the Veteran's current left knee condition was not related to service. The examiner stated that the Veteran was discharged with the diagnosis of chondromalacia patella. This diagnosis indicated structural changes in the articular surface of the patella. The Veteran had arthroscopic surgery in 1979. These changes were often smoothed off in arthroscopic procedures. The radiologist noted pathology in the medial compartment of the knee and also noted tears in the menisci of the medial compartment. There was no notation made of pathology in the patellofemoral compartment. The examiner said that there was only pathology seen in the medial compartment, none in the patellofemoral or lateral compartment. There were degenerative compressive tears of the medial menisci; this was most often seen with aging and obesity, both of which applied to the Veteran who had a BMI greater than 30 and was older than 45 years old, the age at which degenerative arthritis began to show up in the joints. The examiner stated that there was no chondromalacia patella of the left knee it was a structural diagnosis and was not seen on x-ray or MRI. The examiner further stated that it did not appear that the Veteran's current knee condition was aggravated beyond its natural progression by service; it was most likely resolved by arthroscopic surgery in 1979. The examiner stated that review of the record would indicate that the Veteran's current left knee diagnoses were incurred after service, and at least after 1979. The examiner reasoned that the Veteran had arthroscopic surgical procedures that year and these conditions were amenable to surgical repair. The assumption would be, had they existed at that time, the surgeon would have repaired them. The examiner further opined that this condition was not caused by or permanently aggravated by the Veteran's condition because the chondromalacia patella had resolved, the current conditions were found in a different compartment of the knee than the original pathology, and the radiological interpretation of the current condition was a degenerative condition. At the December 2018 Board hearing, the Veteran testified that he injured his knee when he was 12 but that it healed and he did not have any problems upon entering into service. His knee bothered him in service and over the years it had worsened. He said he may have nailed his knee on a pipe and banged it a few times. He said he continued to have knee problems after service. The Board notes that the May 2019 and February 2020 VA opinions were found to be inadequate, and therefore will not be discussed. In a March 2021 VA examination, the Veteran said he incurred a childhood injury while riding a bike up an inclined board. He said the board flipped and hit his left knee, "taking a chunk out of the knee cap." He went into the Navy in 1973, and one day his knee just popped. He was later discharged from service and in the late 1970s, the left knee went out and he had a meniscectomy due to a tear. The examiner opined that the left knee condition was less likely due to service. The examiner reasoned that the competent medical evidence of record did not demonstrate a relationship between the Veteran's left knee condition and service. The medical evidence submitted in support of his claim noted the Veteran had a significant childhood injury to the left knee and required surgery. This was the etiology of the Veteran's left knee condition. The examiner stated that although the Veteran was in the service for approximately 10 months and was reportedly found not fit for duty due to his knee problem, there was no medical evidence to support the left knee condition was due to service. The medical evidence supported the Veteran had radiographic evidence in 2013. This x-ray supported degenerative changes. These changes were noted 39 years after discharge from the service and was less likely than not due to the service. In 2014, the Veteran had a meniscectomy of the left knee 40 years which was also less likely than not due to the service. His occupation was that of a semi-truck driver. The examiner further stated that the Veteran was a lay person and that lay persons were not competent to render testimony concerning medical causation or making a diagnosis. The etiology of the left knee condition fell outside of the realm of common knowledge of a lay person. Additional post-service treatment records are silent for any evidence that would show the Veteran's current left knee condition is related to service. Overall, the Board finds that the Veteran's left knee condition, which clearly and unmistakably pre-existed service, clearly and unmistakably was not aggravated beyond its natural progression. Here, there the entrance examination report showed that the Veteran suffered a left knee injury when he was younger. However, upon examination, there was no left knee condition noted. Therefore, the Veteran was presumed to have been sound when he entered service with regard to his left knee condition. However, as discussed above, multiple medical opinions as well as the histories given by the Veteran during service show that the Veteran's left knee condition pre-existed service, based on the history notation in the entrance examination, as well as the consistent statements from the Veteran and medical providers that the Veteran's left knee condition pre-existed service. Therefore, the evidence of record clearly and unmistakably establishes that the Veteran's left knee condition, existed prior to service. In this case, as shown above, the March 2014 and March 2021 VA examiners considered an accurate history, provided definitive opinions, and supported those opinions with a rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In fact, the March 2014 VA opinion specifically addressed aggravation of a pre-existing injury. As such, this opinion indicating that the Veteran's left knee condition was not aggravated by service, and that the March 2021 VA examiner's opinion that his injuries in service were unrelated to his later surgeries, are of probative weight significant enough to meet the clear and unmistakable evidence standard. Similarly, to the extent that the Veteran has indicated that he believes his left knee condition was made worse by service, the probative weight of the specific opinion of the trained health care professional as to a lack of aggravation significantly outweighs the more general assertions of the Veteran in this regard. Moreover, the clear and unmistakable evidence standard does not require the absence of conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) ("The clear and unmistakable evidentiary standard... does not require the absence of conflicting evidence"). In this case, for the above reasons, the probative weight of the medical opinion indicating a lack of aggravation outweigh the lay statements to a significant enough degree that there is clear and unmistakable evidence of a lack of aggravation, and there are no medical opinions to the contrary. (Continued on the next page) Based on the foregoing, the Board finds that the evidence shows that the Veteran's claimed disability clearly and unmistakably pre-exist his military service and clearly and unmistakably were not aggravated by his time in active service. As such, the presumption of soundness in this case has been rebutted. For the same reasons, the Board finds that the pre-existing left knee condition was not aggravated by service. The Board has considered the doctrine of giving the benefit of the doubt under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert, 1 Vet. App. at 54-56. Therefore, given the absence of evidence that the Veteran's left knee condition was related to service, the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. Service connection for left knee condition is not warranted. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.