Citation Nr: 18160551 Decision Date: 12/27/18 Archive Date: 12/27/18 DOCKET NO. 16-59 276 DATE: December 27, 2018 ORDER Entitlement to service connection for right knee osteoarthritis is granted. FINDINGS OF FACT 1. A right knee disorder did not clearly and unmistakably pre-exist the Veteran’s service. 2. Resolving all doubt in favor of the Veteran, the current diagnosis of right knee osteoarthritis is etiologically related to his service. CONCLUSIONS OF LAW 1. The presumption of soundness is not rebutted and a right knee disorder did not pre-exist the Veteran’s entry to service. 38 U.S.C. § 1111 (2012); 38 C.F.R. §§ 3.303, 3.304(b) (2017). 2. The criteria for service connection for a right knee disorder are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1969 to November 1969 and March 1971 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran submitted a notice of disagreement (NOD) in March 2015. A statement of the case (SOC) was issued in November 2016. The Veteran perfected a timely substantive appeal via VA Form 9 in November 2016. A supplemental SOC was issued in June 2017. Additional VA and private treatment records were added to the claims file following the issuance of the June 2017 supplemental SOC. The private treatment records submitted through the Veteran’s representative were accompanied with a waiver of Agency of Original Jurisdiction consideration. 38 C.F.R. § 20.1304(c) (2017). In light of the full grant herein of the benefit sought on appeal for the right knee claim, there is no prejudice to the Veteran in proceeding with adjudication. The Veteran also perfected timely appeals of claims of entitlement to increased ratings and earlier effective dates for service-connected Peyronie’s disease and right genitofemoral neuropathy and service connection for a cervical spine condition, lumbar spine condition, bilateral shoulder conditions, a left knee condition, and an acquired psychiatric condition. The RO certified these appeals to the Board on June 25, 2018, but the appeal is not yet transferred to the Board; no docket number has been assigned. The Board is required by statute to adjudicate cases in docket order, except for certain situations set forth under 38 U.S.C. § 7107 (2017). As these issues are not yet ready for adjudication under docket order requirements, the Board is prohibited from issuing a decision on the other issues on appeal. Accordingly, any additional issues that have been certified to the Board remain pending and will be addressed in a separate decision in docket order. 1. Entitlement to service connection for a right knee condition. The Veteran seeks entitlement to service connection for a right knee condition. Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 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. 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). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). 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). Factual Background The Veteran’s service treatment records (STRs) contain a Report of Medical Examination conducted in March 1969 in conjunction with his induction into service. No abnormalities were noted. In an accompanying Report of Medical History, the Veteran denied a trick or locking knee. Subsequently, the evidence reflects that the Veteran was in a serious motor vehicle accident in May 1969, prior to entering the service in July 1969. A physical examination report from the Jordan Hospital following the accident documented a two-centimeter jagged laceration on the right knee. No other extremity abnormalities were noted. In June 1969, the Veteran was again examined by a private physician. His stance and gait were noted as normal. He was diagnosed with post-traumatic syndrome but no diagnosis was made in regard to the knees. In August 1969, a private physician submitted a letter regarding the Veteran’s physical status. He reported that the Veteran experienced acute sprains of both knees as a result of the May 1969 motor vehicle accident. In the few weeks following the accident, there was moderate swelling of the knees with limited flexion. His chief complaints were headaches and nervousness. A separate August 1969 letter from another private physician stated that the Veteran was examined a few days following the accident. The physical examination was negative with the exception of pain in the flank. He was examined two days later with a chief complaint of dizziness and vertigo. In September 1969, STRs reflect that the Veteran was seen for complaints of pain in the right knee and hip. He was diagnosed with muscle sprains. In November 1969, upon separation from his first period of active service, the Veteran again underwent examination. The Report of Medical Examination found all systems to be normal. No defects were noted. In the accompanying Report of Medical History, the Veteran answered in the positive regarding a trick or locked knee. In April 1971, upon induction to his second period of active service, the Veteran again reported a trick or locked knee. The examiner noted the report of daily pain when kneeling. The Veteran denied a history of locking or swelling in the knees. The Report of Medical Examination found no physical defects present other than post-concussion syndrome. Post-service treatment records reflect that an April 1974 x-ray of the right knee revealed slight narrowing of the medial joint compartment. In September 1975, the Veteran reported a torn meniscus from the spring of that year. An x-ray revealed a normal right knee. In October 1978, the Veteran underwent surgery for a torn right meniscus. The Veteran underwent VA examination in conjunction with his claim in February 2014. The examiner noted a diagnosis of moderate to severe osteoarthritis in the bilateral knees. After physical examination, interview of the Veteran, and review of the claims file, the examiner opined that the right knee condition was less likely than not due to service. He noted the pre-service incident as well as the September 1969 complaint of knee pain. The examiner stated that the Veteran was on active duty for a short period of time and the knee pain complained of in September 1969 was likely due to the accident prior to service. The Veteran underwent further VA examination in June 2016. The examiner opined that a right knee condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by service. She stated that there was no documentation of a knee injury, complaint, diagnosis, or treatment during service. She noted that the Veteran was medically discharged from active duty for a condition unrelated to the knees. She found that it was less likely than not his acute sprains to both knees that he sustained prior to service were aggravated beyond natural progression due to his service. An addendum VA medical opinion was obtained in August 2016. The June 2016 VA examiner reviewed the file again and noted the September 1969 right knee pain complaints. After further consideration, she repeated her finding that the right knee condition was less likely than not permanently aggravated by active service. In support of this opinion, she noted the May 1969 knee injury consisting of a right knee sprain and laceration. She categorized this as a self-limiting right knee injury, which was symptomatic for a few months and then resolved, as there was no further mention of right knee problems during the Veteran’s service. Her review did not find support for the contention of permanent aggravation. Subsequently, a private medical opinion was submitted on behalf of the Veteran. The physician noted that the Veteran suffered a specific right knee injury during service due to a fall. He opined that it was at least as likely as not that the current right knee disability is related to that in-service injury. Issue of Pre-existence of the Right Knee Condition STRs establish that the Veteran’s knees were deemed normal upon induction examination in March 1969 and no further examination was conducted prior to the Veteran’s actual start of active duty service in July 1969. Thus, the presumption of soundness attaches and requires clear and unmistakable evidence that the disease or injury existed prior to service and was not aggravated by service to rebut the presumption. 38 U.S.C. § 1111; 38 C.F.R. § 3.304; Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In this case, the Board finds that the evidence does not clearly and unmistakably establish a pre-existing right knee condition. Treatment records from May 1969, following the motor vehicle accident, document a right knee laceration. In June 1969, the Veteran had a normal stance and gait. He entered the service in July 1969 and began his military training. A letter from a private physician in August 1969 described the physical examination after the accident with discovery of no abnormalities other than pain in the flank. A second letter from another private physician indicated that the Veteran experienced acute sprains of his knees due to the accident. Although VA examiners found that a right knee condition pre-existed the Veteran’s service, medical evidence contemporaneous to the Veteran’s service suggests otherwise. The medical evidence at that time showed that the Veteran experienced acute knee sprains as the result of the May 1969 accident, but was walking with a normal stance and gait several weeks later. One private physician’s letter described the knee issues as “acute” and one found no knee abnormalities at all when examining the Veteran following the accident. Thus, it is not undebatable to which reasonable minds could not differ that the Veteran entered active duty with a right knee condition. For the above-stated reasons, the Board finds a right knee disorder did not clearly and unmistakably exist before service; therefore, the presumption of soundness is not rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. When the presumption of soundness is not rebutted, the case converts to one for direct service connection. See Wagner, 370 F.3d at 1096. Direct Service Connection for a Right Knee Condition Resolving all doubt in favor of the Veteran, the Board concludes that the Veteran has a current diagnosis of right knee that is etiologically related to his service. As noted above, a current diagnosis of right knee osteoarthritis is established by the medical evidence. Thus, the claim turns upon a showing of a nexus between the current diagnosis and the Veteran’s service. After careful review of the claims file, the Board finds that the record contains both favorable and unfavorable evidence regarding the Veteran’s contention that the current right knee diagnosis is causally related to his service, to include as the result of physical training. Collectively, the VA examination reports of record weigh against an etiological relationship between his current condition and his service. However, the July 2017 private opinion weighs in favor of a nexus. The Board’s analysis includes consideration of the Veteran’s STRs, which contain a complaint of right knee pain in September 1969. He indicated continuing issues with his knee on a November 1969 Report of Medical History, although physical examination found the knee to be normal. In April 1971, the knees were again deemed normal, but the Veteran continued to report knee trouble. Post-service medical treatment records are also probative to this analysis. In April 1974, several years after his medical discharge, an x-ray found slight narrowing of the medial joint compartment in the right knee. Shortly thereafter, the Veteran experienced a torn meniscus, which was eventually treated with surgery. After a review of all evidence of record, both lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s currently diagnosed right knee osteoarthritis is directly related his service. Under the benefit of the doubt rule, where there exists “an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter,” the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993). Given the evidence of record in this case, the Board resolves doubt in the Veteran’s favor and finds that the evidence supports the establishment of service connection for right knee osteoarthritis. Accordingly, the claim of entitlement to service connection for a right knee condition is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 3.303(b). TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.
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