Citation Nr: 22016190 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-01 164 DATE: March 21, 2022 ORDER Service connection for a left knee disability is granted. FINDING OF FACT The evidence is in approximate balance as to whether the Veteran's left knee disability is causally or etiologically related to his active military service. CONCLUSION OF LAW The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310, 4.3. REASONS AND BASES FOR FINDING AND CONCLUSION he Veteran served on active duty in the United States Marine Corps from July 1971 to June 1972. In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. In September 2019, the Board remanded the issue to obtain a new VA examination and medical opinion. In September 2020 the Veteran was afforded a new VA examination and in October 2020 he was provided with a VA medical opinion. Therefore, the Board finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a left knee disability. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310(a), (b). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "chronic" disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303 (b). Generally, a Veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. § 1111 ; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. If a pre-existing disorder is noted upon entry into service, service connection may be granted based on aggravation during service of that disorder. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 (b). A pre-existing injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153 ; 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306 (b); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Temporary or intermittent flare-ups of symptoms of a pre-existing condition alone are not sufficient to be considered "aggravation in service"; rather, aggravation requires a worsening of the underlying condition as a whole. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). When the Veteran is presumed sound at entrance, 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. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). In general, a lay witness is competent to provide testimony or statements relating to observed symptoms or facts within the ambit of the witness's personal knowledge. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, a layperson is generally not competent to determine issues requiring specialized knowledge or training. The Veteran contends entitlement to service connection for a left knee disability. He claims that he began to have left knee pain in service during boot camp at Parris Island and then re-injured his left knee while stationed at Camp Lejeune. As a preliminary matter, the Board notes that the complete service treatment records (STRs) for the Veteran's active duty service from July 1971 to June 1972 have not been located except for his enlistment examination in September 1971 and his Medical Board discharge proceedings in May 1972. The Board observes that, in situations where STRs are missing, the Board has a heightened obligation to explain its findings and conclusions and carefully consider the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. Russo v. Brown, 9 Vet. App. 46 (1996). There is also no presumption, either in favor of the claimant or against VA, arising from missing records. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). First, the Board notes that the Veteran was medically discharged in May 1972 because of osteochondrosis in the left knee and these records suggest a preexisting injury. Specifically, they indicated the Veteran originally injured his knee in a motorcycle accident in 1970. The September 1971 enlistment examination described a normal evaluation for the Veteran's knees and noted no preexisting conditions. As such, the Veteran is presumed sound. The question is whether there is clear and unmistakable evidence that the condition preexisted service. The evidence indicating preexistence is the medical board evaluation papers. The Veteran signed discharge papers indicating he injured his left knee prior to service; however, during the August 2019 Board hearing the Veteran testified that he did not understand what he was signing at the time, being a 18 year old at the time. The Veteran has provided sworn testimony that he did not have a left knee injury prior to service. He also submitted a September 2015 former spouse statement noting the Veteran's former spouse testified that she was married to the Veteran prior to his military service and that the Veteran did not have a left knee injury prior to entering the military. On the Veteran's report of medical history in 1971 he denied any prior knee history. While he described a history of broken bones, the physician elaborated that this referred to his fingers. The September 2020 VA examiner also reviewed the record and concluded that there was clear and unmistakable evidence of a condition prior to service that was clearly and unmistakably not aggravated by service. The examiner explained that the condition at discharged was a left knee osteochondrous. The examiner explained that this is a condition that typically affects adolescents and it is likely the condition existed prior to service but the Veteran was unaware of it at the time. The October 2020 VA examiner reviewed the lay statements and concluded it was at least as likely as not the condition preexisted service. The examiner explained that the lay statements were considered but a Veteran is not capable of diagnosing the medical condition. The Board notes that the Veteran's current knee condition is described as osteoarthritis. Significantly, to the extent to which there is a preexisting condition it is osteochondrous, not arthritis. Furthermore, the Board finds the one notation of a preexisting knee condition does not rise to clear and unmistakable evidence of preexistence. The medical board proceeding provided no rationale as to why they felt the condition was a preexisting condition of the knee. As such, the Board finds the medical board examination falls short of the clear and unmistakable evidence required to find the condition preexisted service. See e.g. Horn v. Shinseki, 25 Vet. App. 231, 240 (2012)(noting that an MEB form containing an x indicating a condition had not been aggravated by service with no analysis or medical explanation accompanying the conclusion fell woefully short of clear and unmistakable evidence). While the VA examiners concluded the condition preexisted service, the September 2020 examiner did not consider all of the evidence and the October 2020 examiner utilized the incorrect standard. Therefore, having found there was no preexisting condition, the claim becomes one of direct service connection. The Veteran's medical treatment records show that he has a current left knee disability. VA and private treatment records reflect a diagnosis of osteoarthritis of the knee. Since active service the Veteran has had multiple surgeries on his left knee, including surgery in 1973 and then three additional surgeries in the mid-1980s, mid-1990s and then in 1997. See August 2015 private treatment records from Dr. D.M.; see also September 2020 VA knee conditions examination (noting the Veteran had a total left knee replacement surgery in 2016). In August 2015, private treatment records from Dr. D.M. indicated that the Veteran stated to the doctor that he hurt his left knee in service during boot camp in 1972 at Paris Island. Dr M. concluded that the history, physical examination and plane radiographs were consistent with severe osteoarthritis and he believed this was directly related to the initial injury in boot camp in 1972 at which time it sounds like he sustained an ACL tear, medial meniscal tear and lateral meniscal tear. In August 2015, the Veteran's former spouse submitted a statement as a witness to verify the Veteran's timeline of left knee issues. The former spouse stated that she was married to the Veteran prior, during, and after his military service. She noted that he had no left knee injuries prior to service and that the Veteran injured his left knee during boot camp. Additionally, the former spouse stated that the Veteran later reinjured his left knee while he was at Camp Lejeune. Notably, the former spouse indicated that after the Veteran was medically discharged, he continuously had left knee issues within a few months after service and still has continuous problems with his left knee. In September 2015, the Veteran submitted a statement, detailing his in-service injury. The Veteran stated that he injured his left knee in service at boot camp. The Veteran noted that he was able to finish boot camp but his left knee was not healed. After boot camp, the Veteran was stationed at Camp Lejeune. The Veteran stated he slipped and fell on a climb and reinjured his left knee. He saw a base doctor who then put him on light duty. The Veteran contended that his knee did not improve and the Veteran then saw an orthopedic doctor who recommended that the Veteran would need surgery on his left knee. At that point in service, the Veteran noted that he was given a choice to have surgery or be medically discharged, in which he chose the latter. Additionally, the Veteran stated that within one month of being discharged, he consulted a doctor and had fluid removed from his knee on more than one occasion. The Veteran also noted that within one year of being discharged he decided to have surgery to that knee. See August 2015 private treatment records from Dr. D.M. (noting that the Veteran had surgery in 1973). Lastly, the Veteran asserted that since active service, he has had continuous left knee issues which have progressively gotten worse, resulting in total knee replacement surgery in 2016. During the August 2019 hearing, the Veteran testified that his left knee started bothering him in service. He again asserted that he hurt his left knee at boot camp during pugil training and was sent to the sick bay, where he had his knee wrapped. The Veteran indicated that the next day they had some fluid taken out of his left knee. The Veteran stated his left knee did get better (but did not completely heal) with rest and he was able to finish boot camp. However, after boot camp and once the Veteran was stationed at Camp Lejeune, he re-injured the knee again in a fall. He states he was treated and found to have osteochondrous of the left knee and subsequently was medically discharged. The Veteran's representative acknowledged the missing STRs and the missing private treatment records in the early 1970s after the Veteran was discharged form service. Further, the Veteran testified that he had no prior left knee injuries before military service and that since military service, he has had continuous left knee pain which has progressively gotten worse ever since, resulting in five left knee surgeries. In November 2019, the Board received a lay statement from the Veteran's spouse who stated that she has been affiliated with the Veteran for the past ten years. She noted that for as long as she has known the Veteran, he has always maintained that he originally injured his left knee in boot camp and that he has had left knee problems ever since. Additionally, the spouse stated that she has heard the same information about the Veteran's left knee from his siblings and from his former spouse. Further, the spouse indicated that during their relationship together for the past ten years and to date, the Veteran continuous to have left knee pain. In accordance with the September 2019 Board remand, the Veteran was afforded a new VA examination in September 2020. The VA examiner provided a negative nexus opinion regarding the Veteran's left knee and active service. However, the Board notes a deferred rating decision was issued in September 2019 by the Regional Office (RO), after the September 2019 VA examination, which requested the September 2019 VA examiner to review and comment on evidence (the August 2015 letter from the Veteran's former spouse) that wasn't previously considered in the negative nexus opinion. Subsequently, in October 2020, the Veteran was provided with a VA addendum medical opinion for his left knee. The VA examiner found it was at least as likely as not that the Veteran's left knee disability existed prior to service. Next, the VA examiner opined that the Veteran's left knee disability was not related to service and did not have its onset within one year of service. The rationale provided, cited to evidence from the Veteran's service Medical Board discharge proceedings in May 1972 and medical evidence from his enlistment examination in September 1971. The VA examiner noted that the first diagnosis of a left knee disability was in 2015 and that STRs are silent for a left knee disability. The Veteran stated that he has attempted to retrieve private medical records from the doctors he saw immediately after service for his left knee pain and surgeries but was unsuccessful. See September 2015 correspondence. Further, in November 2019, pursuant to the September 2019 Board remand directives, private treatment records were requested starting from January 1973 but were also unsuccessfully obtained. The Board has considered the Veteran's September 2020 and October 2020 VA medical opinions and affords the VA examiner's opinions low probative value. First, the Board notes that the September 2019 Board remand decision requested that the August 2015 letter from the Veteran's former spouse be reviewed. While the VA examiner noted that lay statements were reviewed, neither VA medical opinion specifically commented on or discussed the letter from the Veteran's former spouse. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the evidence pertinent to the Veteran's claim on appeal was not discussed or commented on in the Veteran's September 2020 and October 2020 VA medical opinions. As such both the Veteran's VA medical opinions are given low probative value. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight to be attached to medical opinions are within the province of the Board). Next, the Board finds the Veteran to be a credible historian of the events that took place in service and the treatment he received for his left knee following service. Although the Veteran's available STRs do not document complaints for or treatment of left knee pain, the Board notes that the Veteran's STRs are incomplete and that some of the records are unavailable. The Board has a heightened duty to assist and explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where service records are missing or presumed destroyed. See O'Hare v. Derwinski, 1 Vet. App. At 365. In the absence of the Veteran's complete STRs, the Board considers that the Veteran's lay statements regarding the injuries he sustained to his left knee in service. Accordingly, the Board finds that the Veteran is competent to describe the observable non-medical symptoms and treatment of his left knee disability, such as chronic pain, and that his statements have been consistent with each other and with the evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curium, 78 F.3d 604 (Fed. Cir. 1996) (citations omitted). The Veteran testified at an August 2019 Board hearing that he injured his left knee in boot camp and then again while stationed at Camp Lejeune. The Veteran provided specific details of the injuries to his left knee and noted that the symptoms of his left knee injury continued immediately after service, which eventually required left knee surgery in 1973. Thus, the Board finds the Veteran's lay statements to be competent and credible, and therefore entitled to probative weight. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also finds that the Veteran's lay statements, as to the onset of his left knee disability, are supported by other lay statements from the Veteran's former spouse and current spouse. First, the Board notes that as laypersons, they are competent to report such observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The former spouse testified that she was married to the Veteran before, during, and after his military service and indicated that the Veteran did not have a knee injury prior to military service, injured his left knee in service and had left knee issues immediately after service. Additionally, the Veteran's current spouse, stated that ever since she has known the Veteran, he has always maintained that he originally injured his left knee in boot camp and that he has had left knee problems ever since. Significantly, the Board acknowledges that the statements from the Veteran's former spouse and current spouse, corroborate the Veteran's statements regarding the onset of his left knee disability. Moreover, nothing in the record directly contradicts these lay statements, and the Board does not doubt the credibility of the statements. As such, the Board finds the statements from the Veteran's former spouse and current spouse to be probative. The Board also finds the private treatment records from Dr. D.M. to be probative in regard to supporting a continuity of symptomatology for left knee pain and linking the current condition to service. The August 2015 private treatment records indicate that the Veteran had left knee surgeries in 1973, in the mid-1980s, in the mid-90s and in 1997. See also September 2020 VA knee conditions examination (noting that the Veteran also had a total knee replacement surgery in 2016). Dr. M. also felt the condition was directly related to the initial injury in boot camp in 1972. After reviewing the totality of the evidence, the Board finds that it supports a grant of service connection for a left knee disability. In reaching this decision, the Board considered the heighted duty to apply the benefit of the doubt considering the Veteran's missing service records. The Board also considered the Veteran's consistent lay statements throughout the course of appeal in regard to the onset of his left knee disability as well as lay statements from the Veteran's former and current spouses, which corroborate the Veteran's statements. Further, the Board finds the Veteran's lay statements and the statements from the Veteran's former spouse and current spouse to be more probative than the September 2020 and October 2020 VA medical opinions in establishing service connection. The Board also acknowledges the chronicity of the Veteran's condition with left knee surgeries in 1973, in the mid-1980s, in the mid-90s in 1997, and in 2016. In sum, the Board finds that the evidence is in approximate balance on whether the Veteran's left knee disability is related to service, as his lay statements regarding the onset of his symptoms are entitled to significant probative weight due to their consistency, credibility, and continuity of symptomatology. "[I]f the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise), the claimant receives the benefit of the doubt." Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). As such, the Board finds that service connection for a left knee disability is warranted. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Dourmashkin 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.