Citation Nr: 18160663
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 14-25 403A
DATE:	December 27, 2018
ORDER
Entitlement to service connection for a right knee disability is denied.
FINDINGS OF FACT
The Veteran’s right knee condition was noted at service enlistment; the Veteran has not demonstrated an increase in disability during service and therefore has not established the presumption of aggravation.
The Veteran’s degenerative arthritis was not incurred during service; did not manifest itself to a degree of 10 percent or more within one year from the date of separation from service; and continuity of symptomatology has not been shown.
CONCLUSION OF LAW
The criteria for entitlement to service connection for right knee meniscus tear repair have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. 3.102, 3.303, 3.304, 3.305, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from January 1984 to January 1987.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied service connection for posttraumatic stress disorder (PTSD) and determined that new and material evidence had not been received to reopen a previously denied claim of service connection for right knee meniscus tear repair.
In an April 2018 decision, the Board granted the Veteran’s application to reopen the claim for entitlement to service connection for right knee meniscus tear repair.  The Board remanded the underlying claim, as well as the claim of service connection for PTSD, for additional development.
While the matter was in remand status, in an August 2018 rating decision, the RO granted service connection for PTSD and assigned an initial 70 percent rating, effective February 28, 2011.  That award constitutes a full grant of the disability sought, and that appeal has been resolved.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date).  Absent any indication that the Veteran has appealed the downstream elements of initial rating or effective date, those issues are not in appellate status.  
Entitlement to service connection for a right knee disability is denied.
Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury or disease in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.304, 3.306 (2017). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).
Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) (2017). 
Several statutory presumptions operate in connection with the laws providing for service connection, including the presumption of soundness. Under the presumption of soundness, a Veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111, 1137 (2012). 
The law provides that a pre-existing disease or injury will be considered to have been aggravated by military 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 (2012); 38 C.F.R. § 3.306(a) (2017). 
Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and after service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b). Further, temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted with symptoms, has worsened. See Davis v. Principi, 276 F.3d. 1341, 1346-46 (Fed. Cir. 2002) (“[E]vidence of temporary flare-ups symptomatic of an underlying preexisting condition, alone, is not sufficient for a non-combat veteran to show increased disability under 38 U.S.C. § 1153 unless the underlying condition is worsened”); Maxson v. West, 12 Vet. App. 453, 458 (1999) (citing Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991)), aff’d 230 F.3d 1330 (Fed. Cir. 2000).
The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). “[I]f 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.” Wagner, 370 at 1096; see also 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In such claims, the Veteran has the burden of showing that there was an increase in disability during service to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the claimant meets his or her burden of demonstrating an increase in service, the disability is presumed to have been aggravated in service, and the burden is on the Secretary to rebut that presumption. Horn, 25 Vet. App. at 234; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption, the Secretary must show, by clear and unmistakable evidence, that the worsening of the condition was due to the natural progress of the disease. Horn, 25 Vet. App. at 235 n. 6; 38 U.S.C. § 1153.
To be “noted” within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that “asthma” was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that “bunions” were noted at induction examination where orthopedic examiner diagnosed “bunions,” despite also stating “no problem [with] feet.”).
In addition, service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1137 (2014); 38 C.F.R. §§ 3.307 (a)(3), 3.309(a) (2017). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a) (2017); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).
For the showing of 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was noted during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).
The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” See Gilbert, 1 Vet. App. at 54.
The Veteran’s personnel records reflect that she was commissioned as an officer in the U.S. Army Reserve (Senior ROTC) in May 1983 and that she was ordered to active duty in January 1984.  She did not serve on active duty prior to January 1984.  
At her October 1983 military entrance examination, the Veteran endorsed a history of a “trick” or locked knee.  Specifically, she indicated that she had undergone right knee arthroscopy at a private facility for a lateral meniscal tear at age 22. The examiner noted that the Veteran had undergone right knee arthroscopic surgery for a torn lateral meniscus in June 1983 and that the Veteran had excellent results and was totally asymptomatic since the surgery. The physician also noted full range of motion (ROM) for the right knee and no evidence of instability was observed on physical examination.
A November 1985 periodic examination noted that the Veteran’s lower extremities, which included strength and ROM, were normal. The Veteran reported a history of a “trick” or locked knee and “cartilage cut out” in 1982; however the examination was silent as to any contemporaneous complaints of right knee pain or associated symptomatology. Specifically, the Veteran noted, “I am presently in good health, and I am on no medications.” The physician noted a locked right knee prior to arthroscopy in 1982 and reported that there had been no problems since. 
The Veteran’s September 1986 separation examination noted the Veteran’s report that she had a history of a “trick” or locked knee with surgery for a locked right knee in 1983. The examination also noted that lower extremities, which included strength and ROM, were normal. There were no reports of right knee pain or associated symptomatology.
In January 1987, the Veteran submitted an original application for VA compensation benefits, seeking service connection for pain in the right knee which she indicated had begun in June 1982.  She indicated that she had undergone surgery for “broken cartilige” in her right knee in May 1983.  As noted in the Board’s April 2018 decision, the claim was denied on the basis that the Veteran’s knee disability preexisted service and was not shown to be aggravated during service and the Veteran did not appeal.  
In pertinent part, evidence received in connection with the Veteran’s reopened claim includes the Veteran’s statement of January 2011.  In that statement, she claimed that she initially injured her right knee in May 1983, while participating in an Army ROTC cadet camp.  She claimed that she was “duck walking” and her right knee “severely popped.”  She indicated that after the ROTC camp, her knee continued to worsen and she sought treatment from a private physician who performed arthroscopic surgery in 1983.  
VA records showing severe lateral joint space narrowing compatible with degenerative joint disease. See June 2010 VAMC record. VA records also note a diagnosis of degenerative arthritis. See June 2014 VAMC record.
Records from the Social Security Administration show that after her separation from service, the Veteran’s work history included employment as a mail carrier with the post office for six years, as a chemical technician for six years, and as an EMT firefighter.  
In July 2018, the Veteran was afforded a VA examination to determine the nature and etiology of her right knee disability. The examiner noted that the Veteran had been diagnosed with right knee meniscal tear in 1982 and underwent a partial lateral meniscectomy in 1983. The examiner further noted that the Veteran was diagnosed with degenerative arthritis in 2013 and underwent total right knee joint replacement surgery in 2016. Specifically, she reported that she had injured her right knee in ROTC training during college and underwent a meniscectomy in 1983 at a private facility.  She indicated that she was thereafter cleared for entry into active service and did not sustain any injuries during active duty.  After discharge, she did not seek care until 2012, when she began to experience increased knee pain.  
After reviewing the Veteran’s electronic claims file and conducting an examination of the Veteran, the examiner determined that the Veteran’s current right knee disability was less likely than not incurred in or caused by injury during service and that the Veteran’s pre-existing meniscus impairment was not aggravated beyond its natural progression by an in-service event, injury, or illness. The examiner noted,
The STRs are silent for an evaluation, radiographic imaging, diagnosis or treatment for a right knee condition during active miliary service. All exams in STR records are silent for an existing right knee condition at the time of the exam. The exams do refer to a pre-existing right knee condition with right knee locking resulting in surgery but no conditions after surgery in 1983. Per Veteran, not until 20 plus years after military discharge did the Veteran seek care for a right knee condition and was diagnosed with arthritis. This would be expected as the medical literature clearly identifies advanced age as the strongest risk factor for developing arthritis. With statistics showing 80 percent of people over the age of [55] have arthritis. There is no evidence in medical records provided for review to support the contention the Veteran’s prior existing right knee condition was aggravated by military service.
The examiner also determined that it was less likely than not that the Veteran’s right knee degenerative joint disease was related to the Veteran’s active service. The examiner noted,
Osteoarthritis, also known as degenerative or “wear-and-tear” arthritis, is a common problem for many people after they reach middle age, but it may occur in younger people, too.
In osteoarthritis, the cartilage in the joint gradually wears away. As the cartilage wears away, it becomes frayed and rough, and the protective space between the bones decreases. This can result in bone rubbing on bone, and produce painful osteophytes (bone spurs). In addition to age, other risk factors for osteoarthritis include obesity and family history of the disease. Osteoarthritis develops slowly, causing pain and stiffness that worsen over time.
Advanced age is one of the strongest risk factors associated with osteoarthritis (OA). The National Health and Nutritional Examination Survey found the prevalence of this disease to be less than 0.1 percent in those aged 25 to 34 years old versus a rate of over 80 percent in people over age 55. In 1973, age-related increases in OA were reported in both men (incident OA of 9.4 percent in those aged 15 to 24 versus 97 percent in those over age 65) and women (incident OA of 7.6 percent in those aged 15 to 24 versus 97 percent in patients at age 65 and over).
Statistics show over 80 percent of people over the age of 55 have arthritis. Advanced age is the strongest risk factor associated with arthritis. According to medical literature, degenerative joint disease is a natur[al] pro[gr]ession and biologic age-related degenerative process. Therefore, it is the opinion of this medical examiner the Veteran’s right knee arthritis condition was not related to her active service but rather a natural progression of aging.
For the reasons set forth below, the Board concludes that, while the Veteran has a current right knee disability, the evidence does not show that it was incurred in or aggravated by her active service. 
The Veteran contends that her current right knee disability resulted from an injury she sustained while participating in ROTC training, which required a meniscectomy in 1983.  Her personnel records, however, reflect that she was not on active duty at the time she sustained the injury.  She was not a cadet at the U.S. Military Academy, nor was the injury sustained during a period in which she was ordered to duty as a member of the Senior ROTC program.  See 38 C.F.R. § 3.6.  
In addition, the record contains no indication that her preexisting right knee disability which was noted on entry into active duty was aggravated during her period of active duty.  See Verdon, 8 Vet. App. at 530; 38 C.F.R. § 3.304(b). Consequently, to the extent the Veteran seeks compensation for disability resulting from her right knee meniscus tear repair, the burden is on her to demonstrate an increase in disability during service, which would serve to establish the presumption of aggravation. See Wagner; Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); Horn, 25 Vet. App. at 235 n. 6.
In this case, after reviewing the entire record, the Board finds that the Veteran has not demonstrated an increase in disability during service.  The service treatment records are entirely silent for any indication of aggravation of the preexisting right knee disability.  In addition, the July 2018 VA examination discussed above in which the examiner noted that the Veteran’s right knee surgery pre-existed service and concluded that there was no medical evidence in the record to support the contention that the Veteran’s prior existing right knee condition was aggravated by military service. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). There is no opinion to the contrary.
As noted previously, the Veteran contends that her right knee condition was aggravated by service and that the condition progressively worsened after discharge. See Veteran’s January 2011 statement in support of claim; Veteran’s May 2011 notice of disagreement. While the Board recognizes that the Veteran is competent to report symptoms, she lacks the competency to provide the needed opinions regarding aggravation of the right knee disability claimed here. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Questions of competency notwithstanding, the Board gives more probative weight to the findings of the July 2018 VA examiner, given his medical expertise and the detailed rationale he provided.
Additionally, the Veteran has not introduced any medical evidence that demonstrates that there was an increase in her right knee disability during service. As discussed previously, STRs are silent for complaints of right knee pain or any associated symptomatology. STRs are also silent for diagnosis or treatment of a right knee condition. Although the Veteran reported a history of “trick” or locked knee in the October 1983 entrance examination, November 1985 periodic examination, and the September 1986 separation examination, her knee was asymptomatic on those occasions. She did not indicate, nor did the physician note, any increase in her right knee disability. Accordingly, as the evidence does not demonstrate that a threshold showing of worsening of the Veteran’s right knee condition in service has been met, the presumption of aggravation does not apply and it is unnecessary to address the question of whether worsening of the condition was due to the natural progress of the disease. 
In any event, the Board notes that the most probative evidence of record, the July 2018 VA medical opinion, indicates that the Veteran’s current right knee disability is unrelated to any in-service disease or injury or aggravation of a preexisting disease or injury.  The Board finds the examiner’s opinion highly probative, as it was based on a review of the clinical evidence of record, the Veteran’s contentions, and a physical examination of the Veteran, including a review of diagnostic studies.  The examiner also included a detailed rationale for his opinion, explaining that given the applicable medical literature, the Veteran’s current right knee disability resulted from advanced age.  
The Board has considered the fact that the record on appeal documented the presence of arthritis prior to her knee replacement, a chronic disease.  The Board finds, however, that service connection is not warranted on a presumptive basis. As noted previously, the Veteran’s separation examination indicated that the Veteran’s lower extremities, which included strength and ROM, were normal. Additionally, there were no reports of right knee pain or symptomatology. Moreover, the post-service record on appeal, both lay and clinical, contains no indication that the Veteran’s right knee arthritis was manifest to a compensable degree within one year of service separation. Indeed, the Veteran reported that she received no medical care for her knee until 2010 or 2012, when she began to experience increased knee symptomatology.  As the Veteran’s right knee arthritis was not present in-service or manifest to a compensable degree within one year of separation, service connection on that basis is not warranted. 38 C.F.R. § 3.307, 3.309(a).
The Board notes that service connection is also not warranted based on continuity of symptomatology. Although the Veteran’s representative argues that the Veteran has presented sworn testimony as to continuity of symptomatology of the Veteran’s right knee disability, the Board can find no record of sworn testimony in the claims file. The Veteran has not requested a hearing before the Board. Additionally, notes in the Veteran’s Appeals Control and Locator System (VACOLS) indicate that the Veteran did not appear for 2 formal hearings scheduled at the regional office in 2016. In addition, as reflected above, at service separation, the Veteran’s knee was asymptomatic and she reported at the VA examination that she did not experience increased knee symptoms until 2010 or 2012, which prompted her to seek treatment.  
(Continued on the next page)
 
Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for service connection for a right knee disability and the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107, 38 C.F.R. § 3.102. Accordingly, the Board finds that the claim must be denied.
 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Ruddy, Associate Counsel 

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