Citation Nr: 22018902 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 17-15 748 DATE: March 30, 2022 ORDER Entitlement to service connection for a left knee disability is granted. FINDING OF FACT The Board finds that the there is an approximate balance of evidence to support finding that the Veteran's preexisting left knee disability worsened in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have been met. 38 U.S.C. §§ 1110, 1111, 1131, 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 with the Army from April 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing in July 2017. A transcript of the proceeding has been associated with the claims file. The Veteran's claim was most recently remanded by the Board in an August 2021 decision for a VA addendum medical opinion. As a medical opinion was obtained in October 2021, the Board concludes that the RO has substantially complied with the August 2021 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for a left knee disability The Veteran contends that his left knee disability preexisted his service and was aggravated by his service, to include his in-service treatment for pes planus. 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's left knee disability preexisted his military service. The Veteran's January 1970 entrance examination reveals a notation of a left knee injury. In Wagner v. Principi, 370 F.3d 1089, 1096 (2004), the United States Court of Appeals for the Federal Circuit held if a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service connection for that disorder, but the Veteran may bring a claim for service-connected aggravation of that disorder. In that case, 38 U.S.C. § 1153 applies and the burden falls on the Veteran to establish an increase in disability during service. If the presumption of aggravation attaches, the burden shifts to the government to show by clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. Id; see also 38 C.F.R. § 3.306 (b). The Veteran's service treatment records do not contain any notations for treatment or complaints related to the left knee. However, his records do contain complaints related to pes planus. In May 1970, he complained of arch pain with increased activity. He was assessed with moderate pes planus and was given arch supports. In July 1970, he again reported issues with his feet. It was noted that his symptoms continue despite use of the provided arch supports. He was assessed with pes planus and was reissued a new pair of boots and returned to full duty. The Veteran's December 1971 separation examination noted that the Veteran was in "good health." The Veteran's post-service treatment record contain documentation of continued left knee complaints and consistent treatment since his separation from service. In an October 2001 initial evaluation for the left knee, it was noted that the Veteran had a history of left knee surgeries in 1968 and 1981, and he was assessed with arthritis. In a May 2014 evaluation, the Veteran reported problems with his knees for many years and his left knee condition has slowly worsened. He was again assessed with left knee arthritis. The Veteran's VA treatment records include a September 2017 appointment to establish care with the VA where the Veteran contended that he has had problems with his left knee since service, and he has had 4 left knee surgeries since separating from service. A December 2017 MRI revealed severe osteoarthritis along with other left knee conditions. Most recently, an October 2021 VA examiner opined that it is at least as likely as not that the Veteran's left knee disability was aggravated by his in-service pes planus. The examiner explained that the Veteran's pes planus caused altered biomechanics resulting in stress to the Veteran's left knee which led to his degenerative changes and associated other left knee conditions such as noted in his June 2020 MRI. In his March 2017 VA Form 9, the Veteran contended that is left knee injury was drastically aggravated during his service. He further contends that he was rushed through the discharge process and had 4 surgeries on his left knee after leaving the Army. During the July 2017 hearing, the Veteran testified that his left knee has continued to bother him since service, and he has had numerous surgeries. During service, he said that his left knee would swell, and he had to have it drained. After careful consideration of the evidence, the Board finds that the evidence of record is in approximate balance, or "nearly equal" in showing that there was an increase in the severity of left knee disability during service, thus the presumption of aggravation attaches. The Board notes that when evidence is in approximate balance or "nearly equal," the claimant is entitled to the benefit of the doubt. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). The Veteran entered service with a preexisting left knee injury, and although his service treatment records do not document left knee complaints, his records do show complaints related to pes planus. The October 2021 VA examiner offered a persuasive medical opinion indicating that the Veteran's left knee injury was aggravated by his in-service pes planus due to an altered gait and stress to the left knee. The Board finds that the opinion is adequate and probative as it is based on an accurate medical history and provides an explanation that contains clear conclusions with supporting data. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Furthermore, the Veteran's post-service treatment records indicate that the Veteran has had continued complaints of and treatment for the left knee injury, including surgeries in the 1980s. Also, the Veteran was assessed with degenerative arthritis in October 2001 and severe osteoarthritis in December 2017. Finally, in the March 2017 VA Form 9 and during the July 2017 Board hearing, the Veteran stated that he experienced problems with his left knee during his service. As previously noted, in order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that there has been no increase in the severity of the preexisting condition or that any increase was the result of natural progression. 38 C.F.R. § 3.306. 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). In August 2014, the Veteran underwent a knee and lower leg conditions VA examination. During the examination, the Veteran stated that he had problems with his left knee in service and had additional surgeries on his left knee in the 1970s and 1980. The examiner opined that the Veteran's left knee injury, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner's rationale was that the Veteran's service treatment records did not demonstrate further injury to the left knee. The Board finds that the VA examiner's opinion is inadequate and lacks probative value as it does not apply the appropriate legal standard. El-Amin v. Shinseki, 21 Vet. App. 136, 140-141 (2007). The examiner failed to opine as to whether the evidence clearly and unmistakably shows that there was no increase in severity to the Veteran's left knee injury increase and/or the increase in severity was due to the natural progress of the condition. Consequently, there is no clear and unmistakable evidence that there was not an increase in severity or that the increase in severity was due to the natural progression of the disease. (Emphasis added). Therefore, the presumption of aggravation has not been rebutted and service connection for a left knee disability based upon aggravation of a pre-existing disability is granted. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.