Citation Nr: 22013294 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 15-13 683 1548DATE: March 9, 2022 ORDER Service connection for a left knee condition, to include a semilunar cartilage condition and osteoarthritis, is denied. FINDINGS OF FACT 1. The Veteran's left knee semilunar cartilage condition clearly and unmistakably preexisted his period of active duty beginning in November 1990. 2. The Veteran's preexisting left knee semilunar cartilage condition clearly and unmistakably was not aggravated by his service. 3. The evidence of record persuasively weighs against finding that left knee osteoarthritis began during active service or from an injury during a period of ACDUTRA, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left knee condition have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Army from November 1990 to June 1991 and January 1992 to June 1992. He also served on active duty for training (ACDUTRA) from May 1979 to September 1979 and July 11, 1992 to July 25, 1992 and had periods of reserve service prior to and after his periods of active duty. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the Board at a hearing in July 2018. A transcript of the hearing is of record. Subsequently, the Board remanded the case in May 2019, December 2020, and October 2021 for further development. Service Connection Left Knee Condition The Veteran and his representative contend the Veteran is entitled to service connection for a left knee condition because the condition is either directly related to service or aggravated by his service. See April 2021 and January 2022 Informal Hearing Presentations. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then for certain chronic diseases a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). "Active military, naval, or air service" includes active duty; any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; or any period of inactive duty training (INACDUTRA) in which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Left Knee Semilunar Cartilage Condition A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and aggravation by clear and unmistakable evidence. A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the "burden is not on the claimant to show that his disability increased in severity." To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231 (2012). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd, 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran had a left knee condition that preexisted his periods of active military service from November 1990 to June 1991 and January 1992 to June 1992 or period of ACDUTRA in July 1992. The appellant established "veteran" status based on his periods of active-duty service from November 1990 to June 1991 and January 1992 to June 1992. In a November 2012 letter, VA informed the Veteran as to the unavailability of his service treatment records. Where service records are destroyed or missing, VA has a heightened duty to assist a Veteran in developing his claim. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). This duty includes a heightened obligation on the Board's part to explain its findings and conclusions, and carefully consider the benefit of the doubt rule. See Cromer v. Nicholson, 19 Vet. App. 215 (2005). The Veteran's service treatment records that are available, based on their submission by the Veteran, do not include entrance examinations conducted contemporaneous with the Veteran's periods of active duty beginning in November 1990 and January 1992 or prior to his July 1992 period of ACDUTRA. However, as the November 2012 letter indicates VA does not have the Veteran's complete service treatment records, it is unclear whether any entrance examinations were conducted prior to the Veteran's periods of active duty or his period of ACDUTRA in July 1992. Therefore, as any entrance examinations that were conducted are unavailable, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997) (holding that the presumption of soundness applies even when the record of a veteran's entrance examination has been lost or destroyed while in VA custody)). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the condition both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran had a left knee semilunar cartilage condition that preexisted his periods of active duty beginning in November 1990 and January 1992 and his period of ACDUTRA in July 1992. The Veteran's service treatment records and the private medical records indicate that the Veteran underwent surgery on his left knee in 1985 for torn cartilage. In addition, the Board remanded the Veteran's claim in May 2019 to obtain a medical opinion as to whether it is clear and unmistakable that the Veteran had a left knee condition that preexisted his military service. In November 2019, a VA examiner opined that it is clear and unmistakable that the left knee semilunar cartilage condition preexisted the Veteran's periods of active duty that began in November 1990 and January 1992. In support of the opinion, the examiner noted that a review of private records from the Jennings Clinic reflect that the Veteran had left knee surgery prior to November 1990 during a non-active duty period. The opinion provides a thorough rationale and unequivocally concluded that the Veteran had a left knee semilunar cartilage condition that preexisted his periods of active duty that began in November 1990 and January 1992 and his period of ACDUTRA in July 1992. The Veteran has consistently contended that he injured his left knee playing basketball in 1992 during a period of active service. See July 2018 Board Hearing Transcript, p. 3. However, the Veteran has not denied that he had the 1985 left knee surgery and, thus, that he had a preexisting left knee semilunar cartilage condition prior to his periods of active duty from November 1990 to June 1991 and January 1992 to June 1992 and period of ACDUTRA in July 1992. In summary, given the consistent and probative medical evidence concluding that the Veteran had a left knee semilunar cartilage condition, as evidenced by the 1985 left knee surgery, that preexisted his periods of service and the absence of any competent evidence to the contrary, the Board finds that there is clear and unmistakable evidence of record that the Veteran's left knee semilunar cartilage condition preexisted his periods of active duty beginning in November 1990 and January 1992 and his period of ACDUTRA in July 1992. See Doran v. Brown, 6 Vet. App. 283, 286 (1994). Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "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." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). In this case, there is clear and unmistakable evidence that the Veteran's left knee semilunar cartilage condition was not aggravated by service beyond the natural progression. In November 2021, a VA examiner opined that it is clear and unmistakable that the Veteran's left knee semilunar cartilage condition was not aggravated beyond the natural progression of the disability during his periods of service. In support of the opinion, the VA examiner noted the Veteran's left knee injuries in February 1991 and July 1992, and he stated those injuries were direct injuries to the left knee, which were separate and unrelated incidents from the Veteran's preexisting left knee disability. The Board acknowledges that a private physician, Dr. J.J., submitted an opinion in August 2018 where he opined that the Veteran's left knee condition is 100 percent due to his service in Desert Storm. Dr. J.J. provided no rationale in support of his opinion other than that the opinion was based on X-rays and findings during surgery. He also did not discuss the Veteran's history of left knee surgery prior to service and did not clearly indicate what knee condition was due to his service. Therefore, the Board places no weight of probative value on this opinion. As is noted above, the underlying disorder, as opposed to the symptoms, must be shown to have worsened in order to find aggravation. In this case, while the service treatment records reflect an April 1991 left knee sprain and a July 1992 left knee injury playing basketball during a period of ACDUTRA, the VA examiner in November 2021 explained that the medical findings at that time and the evidence after service made it clear and unmistakable that the Veteran's left knee condition was not aggravated during service. Thus, the evidence of record clearly and unmistakably shows that the preexisting left knee semilunar cartilage condition was not aggravated by service. See Jensen, 4 Vet. App. at 306-07; Green, 1 Vet. App. at 323; Hunt, 1 Vet. App. at 297. To the extent that the Veteran contends that his left knee semilunar cartilage condition worsened due to service, the Board does not find such representations of any probative value in light of the Veteran's lack of medical training and expertise and the complexity of attributing any observed symptomatology to aggravation of that condition. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions); cf. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the left knee semilunar cartilage condition was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran's left knee semilunar cartilage condition preexisted his periods of active duty and his period of ACDUTRA and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection for a left knee semilunar cartilage condition based on the direct theory of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Left Knee Osteoarthritis The record also reflects that the Veteran has a separate left knee condition from the semilunar cartilage condition of left knee joint osteoarthritis. See November 2019 and November 2021 VA Examination Reports. There is not clear and unmistakable evidence that osteoarthritis preexisted the Veteran's periods of active duty or his period of ACDUTRA in July 1992. Therefore, the presumption of soundness has not been rebutted for the condition of left knee osteoarthritis. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn v. Shinseki, 25 Vet. App. 231, 233 (2012). In November 2021, the VA examiner opined that the Veteran's left knee osteoarthritis was less likely than not incurred in or caused by the Veteran's service. In support of the opinion, the VA examiner noted that the Veteran's current osteoarthritis is a separate and unrelated condition from the Veteran's left knee sprains and injuries experienced during his service. The examiner stated that there was no medical evidence that minor injuries to the knee or sprains to the knee cause osteoarthritis. The examiner explained that the Veteran's in-service knee injuries were acute as there was no residual noted or ongoing disability of the left knee since the in-service injuries. The examiner noted the Veteran's 2002 left knee surgery, but the examiner stated that the surgery was due to his osteoarthritis, which is a separate and unrelated condition. The Board affords significant weight of probative value to this opinion as the examiner provided a thorough review of the record, examined the Veteran, and took into consideration the Veteran's prior medical history and lay statements, and provided a sufficient rationale for the Board to evaluate the claim. As noted above, private physician, Dr. J.J., submitted an opinion in August 2018 where he opined that the Veteran's left knee condition is 100 percent due to his service in Desert Storm. However, as Dr. J.J. provided no clear rationale in support of his opinion, other than that the opinion was based on X-rays and findings during surgery, the Board places no weight of probative value on the opinion. The Board has considered the Veteran's assertions that his current knee disability is due to his military service, including an injury playing basketball at Fort Gordon in July 1992. See October 2013 VA Form 21-4138, Statement in Support of Claim; July 2018 Board Hearing Transcript, p. 3. Furthermore, the Board notes the Veteran's contention that his 1998 motor vehicle accident did not contribute to his left knee disability. See July 2018 Board Hearing Transcript, p. 3. In addition, the Board acknowledges the Veteran's statement that his 1991 and 1992 in-service left knee injuries contributed to his 2002 left knee surgery. See September 2020 VA Form 21-4138, Statement in Support of Claim. Although lay persons are competent to provide opinions on some medical issues, see Kahana, 24 Vet. App. at 435, as to the specific issue in this case, determining the diagnosis and etiology of left knee osteoarthritis that was first discussed multiple years after separation from service and attempting to link such problems to left knee injuries noted in service falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1377; see also Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that the Veteran suffered a particular illness (bronchial asthma) was not competent evidence because the matter required medical expertise). Therefore, the Board does not place weight of probative value on the Veteran's statements in this regard. Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In the instant case, however, there is no presumed service connection because the evidence weighs persuasively against a finding that the Veteran's left knee joint osteoarthritis was manifested to a compensable degree within one year of discharge from his periods of active duty. Service connection may also be established by showing that the condition was noted in service with continuity of symptomatology after service for a disease listed as chronic under 38 C.F.R. § 3.309(a). See 38 C.F.R. § 3.303(b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). Here, the weight of the evidence is persuasively against this theory of entitlement as the November 2021 opinion provides persuasive evidence that the conditions noted in service were separate and distinct from osteoarthritis and did not result in osteoarthritis. In summary, the weight of the evidence is persuasively against a finding that left knee osteoarthritis is related to the Veteran's periods of active duty or related to an injury during a period of ACDUTRA. Thus, the Board finds that the benefit of the doubt doctrine is not for application, and that the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.