Citation Nr: 22015381 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 20-04 177 DATE: March 17, 2022 ORDER Service connection for a left knee disorder is denied. FINDING OF FACT A left knee disorder, diagnosed as malunion patella fracture, clearly and unmistakably pre-existed the Veteran's entrance to active duty and was not aggravated therein, and his currently diagnosed osteoarthritis is the result of such disorder. CONCLUSION OF LAW The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to June 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in December 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran requested a Board hearing in his January 2020 substantive appeal, he later withdrew such request in August 2021. 38 C.F.R. § 20.704(e). Entitlement to service connection for a left knee disorder. The Veteran asserts he has a current left knee disorder that had its onset during active duty as a result of an injury he sustained after falling out of the back of a truck and landing on his left knee. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran's entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). Such presumption is only rebutted where the evidence clearly and unmistakably shows that the veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the "preexistence prong" and the "aggravation prong." Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). Under 38 U.S.C. § 1153, a preexisting 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. 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); 38 C.F.R. § 3.306(a). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of background, the Veteran was involved in a motor vehicle accident in January 1965, and in February 1966, a private physician, Dr. G.O., authored a letter reporting that in was his opinion the Veteran would not be able to carry out the usual activities required in military service. During a February 1966 pre-induction medical examination, the Veteran's lower extremities were assessed as abnormal. It was also noted during a May 1966 enlistment examination that he underwent a partial patellectomy in January 1965, and had a slight limitation of flexion. The Veteran then entered active service in May 1966; however, given his inability to perform training exercises due to left knee pain, he underwent a Medical Board evaluation in June 1966, at which time the Medical Board determined that he had a left patella malunion fracture, inferior aspect, as evidenced by excess calcification and pain. Here, it was noted that such existed prior to service. Accordingly, the Medical Board recommended that the Veteran receive a medical discharge from service based on their conclusion that he was medically unfit. It was further noted that the Veteran's left knee disorder: (1) was not from the line of duty; (2) originated in approximately January 1965; (3) existed prior to entry on active duty; and (4) was not aggravated by active duty. The Veteran was medically discharged from service as of June 1966. Post-service treatment records include X-ray findings dated in September 2017 of mild degenerative changes of the left knee. An additional September 2017 private treatment record reveals an assessment of knee pain suspect due to patellar issue/chondromalacia. While the Veteran has long asserted that his preexisting left knee disorder was aggravated during service, contributing to his current left knee disorder, drawing such a correlation is a complex medical matter, requiring related clinical expertise. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (holding that a lay person is not considered competent to testify regarding medically complex issues). As the Veteran has no such known or reported expertise, his own assertions regarding causation or aggravation are afforded no probative value, and as such, competent medical evidence is required to decide the claim. Accordingly, VA has obtained a medical opinion addressing the Veteran's theory of service connection. In this regard, a December 2017 VA medical opinion reflects a VA physician's determination that the Veteran's malunion patella fracture, which clearly and unmistakably preexisted service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. In support thereof, the examiner reported that, based on the Veteran's February 1966 pre-induction examination, May 1966 enlistment examination, and June 1966 Medical Board proceeding, the Veteran sustained a fractured left patella in a car accident prior to enlistment in the military; and such was noted in his induction medical history and examination. The examiner further reported that the Veteran recalled falling on his left knee while in boot camp; however, no documented medical treatment records were noted in the file provided. He noted that the Veteran was shortly deemed unfit for military service by the Military Medical Review Board approximately three weeks after his enlistment physical, and his knee disorder was not thought to be aggravated by military duty. Here, the examiner further noted that the Veteran reported having seen a doctor for this disorder during such time or shortly after his release from the military. He concluded that, while the Veteran did have knee arthritis as documented by X-ray in December 2017, such would be considered a normal outcome of a fracture sustained 50 years prior. The Board affords great probative weight to this December 2017 VA medical opinion, as such considered all of the pertinent evidence of record, to include the statements of the Veteran and relevant medical history, utilized the correct legal standard for such medical opinions, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the opinion contains clear conclusions with supporting data as well as reasoned medical explanations connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); 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"). Notably, there is no medical opinion to the contrary. The Board observes that, in a March 2022 Informal Hearing Presentation (IHP), the Veteran's representative argues that the December 2017 VA examiner's opinion is inadequate as he did not consider all the evidence of record, to include the Veteran's lay statements. However, upon a review of such opinion, the Board finds that the December 2017 VA examiner considered all relevant facts. In this regard, the examiner considered the Veteran's lay statements, and such opinion was predicated on an accurate medical history. Here, the Board specifically acknowledges its consideration of the Veteran's arguments that his left knee only became symptomatic during active service as he did not have mobility issues or pain prior to such time, and he was able to perform his duties prior to his aggravating injury. However, the Board finds that this recent assertion, made many years after service, differs from documented reports in February and May 1966 (shortly prior to his entrance into active duty). Specifically, in Dr. G.O.'s February 1966 letter, he indicated that the Veteran presently complained of left knee soreness and stiffness, especially in the morning; difficulty going up stairs/inclines; giving way; and aching. Further, in a May 1966 letter authored by Dr. T.T., the Veteran's clinical status was noted as reviewed the previous April. At that time, day to day, the Veteran's left knee had very little discomfort apart from going up and down stairs; and the Veteran found he was unable to engage in athletic activity. Furthermore, during the Medical Board evaluation in June 1966, the Veteran stated that following his January 1965 surgical removal and physical therapy, he was left with residuals consisting of swelling and pain in the knee on attempts to do any vigorous activity. The Board accords these documented contemporaneous accounts more probative value than his recent accounts, as the passage of time may have altered the Veteran's recollection. The Court has held that a VA opinion report is adequate if it is based on correct facts and sufficiently informs the Board of the medical expert's judgment on a medical question and the "essential rationale" for the opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Thus, the Board finds that the Veteran's representative's argument is without merit. Moreover, the Board observes that, in the March 2022 IHP, the Veteran's representative cited medical treatises addressing the relationship between intense training and load bearing with the occurrence and aggravation of musculoskeletal lower limb injuries, as well as the notion that such musculoskeletal conditions could further develop later in life. However, such is not accompanied by any corresponding clinical evidence specific to the Veteran, and does not suggest a generic relationship between the Veteran's current left knee disorder and his military service with a degree of certainty such that, under the facts of this specific case, reflects plausible causality based upon objective facts rather than on an unsubstantiated lay medical opinion. Consequently, such literature is insufficient to establish service connection for a left knee disorder and not probative as to a nexus between such disorder and the Veteran's military service. Wallin v. West, 11 Vet. App. 509 (1998); Sacks v. West, 11 Vet. App. 314 (1998); Libertine v. Brown, 9 Vet. App. 521 (1996). In conclusion, the Board finds that a left knee disorder, diagnosed as malunion patella fracture, clearly and unmistakably pre-existed the Veteran's entrance to active duty and was clearly and unmistakably not aggravated therein, and his currently diagnosed osteoarthritis is the result of such disorder. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the evidence of record persuasively weighs against the Veteran's claim for service connection for a left knee disorder. As such, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. A. ADAMSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Koria B. Stanton, Associate 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.