Citation Nr: 0722161 Decision Date: 07/23/07 Archive Date: 08/02/07 DOCKET NO. 04-12 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for residuals of a left knee injury, to include osteoarthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. FINDINGS OF FACT 1. A left knee injury was shown on examination on entrance into active duty in October 1965; such injury did not increase in severity during active service. 2. Residuals of a left knee injury, to include osteoarthritis, are not attributable to service. CONCLUSION OF LAW Residuals of left knee injury, to include osteoarthritis, were not incurred in or aggravated by service and may not be presumed to have been incurred or aggravated therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 111, 1153 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board notes that regulations enacted under the Veterans Claims Assistance Act of 2000 (VCAA) require VA to notify claimants and their representatives of any information that is necessary to substantiate a claim for benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103(a), 5106, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159(b), 3.326(a) (2006). The United States Court of Appeals for Veterans Claims (Court) has held that this notice must be provided to a claimant prior to an initial, unfavorable decision on a claim for VA benefits by any VA regional office (RO). Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). Regulations also dictate that VA has a duty to assist claimants, essentially providing that VA will make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(c). In the present case, the issue on appeal arises from a claim for service connection for a left knee injury. The Board notes that the veteran's claim was received in August 2002. In March 2003, prior to its adjudication of this claim, the RO provided notice to the claimant regarding the VA's duty to notify and to assist. Specifically, the RO notified the claimant of information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the claimant was expected to provide. The veteran was advised to notify VA of any information or evidence he wished VA to retrieve for him. Thus, the Board finds that the content and timing of the March 2003 notice comports with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). With respect to the duty to assist, the Board notes that the veteran has undergone a VA examination in conjunction with his claim for service connection. 38 C.F.R. § 3.159(c)(4). There is no objective evidence indicating that there has been a material change in the veteran's condition since the claimant was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95. The VA examination reports are thorough and the examinations in this case are adequate upon which to base a decision. The records satisfy 38 C.F.R. § 3.326. Additionally, the claimant's service medical records and pertinent post-service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. Additional efforts to assist the veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). In summary, the evidence does not show, nor does the veteran contend, that any notification deficiencies have resulted in prejudice. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (holding that due process concerns with respect to VCAA notice must be pled with specificity). Therefore, the Board finds that it would not be prejudicial to the veteran to render a decision at this time. Evidence The veteran's original claim for a left knee injury was received in August 2002. Although originally claimed as a right knee injury, the veteran submitted a statement in April 2003 clarifying that the "right knee injury" should actually be "left knee injury." According to the veteran, he underwent a knee operation, resulting from a high school football accident, in 1960. Indeed, a September 1960 private medical report indicates that he veteran had a simple complete fracture of his left femur which he sustained in a football game. A closed reduction was performed and the left leg was immobilized in skeletal traction. He was to be hospitalized for 6 to 8 weeks. On the veteran's March 1965 pre-induction examination it was noted that the veteran had broken his "femur bone at the knee" in high school during a football game; the examiner indicated that it was not considered disqualifying. On his October 1965 induction examination, the veteran checked "Yes" to "trick or locked knee," and the 1960 knee operation was noted once again; it was reported that there were no sequelae. Physical examination at the time revealed no abnormalities. A medical report of August 23, 1967 referenced a re-injury to the veteran's surgically-repaired knee. The Board notes that the medical report specified that the knee in question was the veteran's left knee. It was noted that the veteran had fractured his femur in 1959. He had slight instability of the ligaments and pain medially. The veteran's left knee was re-examined on August 25, 1967. The veteran was provided with whirlpool treatment. Whirlpool treatment was repeated August 29th, 30th, and 31st. On separation, the veteran checked "No" to "trick or locked knee," and he did not report any knee problems. However, the Board notes that the separation examination was administered on August 18, 1967, prior to the left knee injury in question. On the veteran's Physical and Mental Status on Release from Active Service in October 1967, no remarks were provided by the veteran or the examiner regarding a knee injury; this form, however, bears no signature of the veteran. A May 2003 rating decision denied the veteran's claim for service connection. According to the RO, there was no evidence of a left knee aggravation that occurred during the veteran's period of active service. The RO noted that, "X- ray of the left knee on August 22, 1967, shows slight contour deformity of the distal femoral shaft, probably represents old, healed fracture, no other abnormality." A January 2004 statement of the case (SOC) affirmed the denial for the same reasons. The veteran's formal appeal of March 2004 provides details regarding his pre-induction knee surgery. According to the veteran, he was sent to Mercy Hospital in Oklahoma City, Oklahoma immediately following his football accident in 1960. While there, he was under the care of Dr. H. F., a bone and joint specialist. He was then transferred to the hospital in Wewoka, Oklahoma on September 13, 1960. The veteran was released on December 23, 1960. After that, the veteran was in the care of Dr. C.B.K. for continued treatment. The veteran asserted that he had ligament and cartilage damage following the procedure, and that he suffered physical limitation as a result. A private MRI record of the left knee dated in June 2003 notes that the anterior and posterior cruciate, medial and lateral collateral and oblique popliteal ligaments were intact. The popliteal tendon and iliotibial band were intact. However, there were findings that were indicative of a chronic degenerative tear of the meniscus along with chondromalacia, a small Baker's cyst, and slight joint effusion. A February 2005 private medical report showed laxity of the medial collateral ligament in the valgus at full extension; a loose anterior cruciate ligament; positive anterior drawer; and some narrowing of the lateral joint space with tricompartmental osteophyte disease, described as the sequelae of a fairly nicely aligned fracture as seen in the distal femur above the level of the patella. The veteran was afforded a VA examination in May 2004. The examiner relied on the veteran's own history regarding his pre-induction surgical procedure, in conjunction with the veteran's service medical records, in order to formulate an opinion. According to the examiner, the veteran took arthritic medication for knee pain, and the veteran stated that the medication helped to some degree. The veteran was able to walk without assistance. The report states, "The veteran's left knee was negative for joint deformity, deviation, inflammation, and effusion. There was no point tenderness with palpation. A slight "laxity and instability on anterior-posterior drawer test and light laxity on valgus/varus stress tests" was also noted. Range of motion was to 145 degrees with passive flexion, and 140 degrees with active flexion. Extension was noted to be 0 degrees. Also, "The veteran had a negative McMurray test," with no additional functional limitation. The examiner did not note any pain during the examination. Ultimately, the examiner diagnosed the veteran with osteoarthritis of the left knee. It was noted that, "Pain causes mild functional impairment." The examiner opined, "It is my opinion it is less likely than not that the veteran's left knee condition was permanently aggravated during military service." Law The U.S. Court of Appeals for Veterans Claims (Court) held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A claim of service connection for a disability must be accompanied by medical evidence establishing that the claimant currently has a claimed disability. Absent proof of a present disability, there can be no valid claim. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (38 U.S.C. § 1110 requires current symptomatology at the time the claim is filed in order for a veteran to be entitled to compensation); Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997) (38 U.S.C. § 1131 requires the existence of a present disability for VA compensation purposes). In order to establish service connection for a claimed disability, the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. 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). In addition, certain chronic diseases may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). A preexisting 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.A. § 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.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). To that end, every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. §§ 1111, 1137. In a recent opinion, VA's General Counsel held, in part, that 38 C.F.R. § 3.304(b) was inconsistent with 38 U.S.C.A. § 1111 to the extent that it stated that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. The General Counsel indicated that in order to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, the VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The General Counsel indicated that the claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Accordingly, the General Counsel held that section 3.304(b) was therefore invalid and should not be followed. VAOPGCPREC 3-2003 (2003). The Board also notes that the Court of Appeals for the Federal Circuit reached the same conclusion in 2004, by holding that "the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness for wartime service under section 1111." Wagner v. Principi, 370 F.3d 1089 (Fed. Cir., 2004). The Court went further to hold that "if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection" rather than for service-connected aggravation. Id. The provisions of 38 C.F.R. § 3.304(b) were amended effective May 4, 2005 (See 70 Fed. Reg. 23029 (May 4, 2005)) and are now consistent with 38 U.S.C.A. § 1111. The Board notes that under 38 C.F.R. § 3.304(b)(1), a history of the preservice existence of conditions recorded at time of examination alone does not constitute a notation for purposes of the presumption. However, it will be considered with other clinical observations made at the time of the examination. Standard of Review When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. Analysis As noted above, veterans are presumed to have entered service in sound condition as to their health. VA must presume that the veteran was in sound condition except as to those defects, infirmities, or disorders noted at the time of his or her entrance into service. 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. § 3.304. The presumption of sound condition provides that 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 examination, acceptance and enrollment. This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. A reported history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304; Crowe v. Brown, 7 Vet. App. 238 (1994). However, in this case, rebutting the presumption of soundness at service entrance is not an issue, as the presumption of soundness never attached as to the veteran's period of active duty. A September 1960 private medical report clearly indicates that the veteran fractured his left femur. The Board notes that the veteran repeatedly referred to this as a left knee injury in service medical records. Specifically, a review of the veteran's service medical records reveals that at the time of the veteran's entrance examination in October 1965, the veteran checked "Yes" to "trick or locked knee," and his knee surgery in 1960 was noted. An x-ray of the left knee conducted in August 1967 revealed a "slight contour deformity of the distal femoral shaft," and the examiner stated that the x-ray evidence "probably represents old, healed fracture, no other abnormality." Further, the veteran's own history, taken during his May 2004 VA examination, confirms the existence of his pre-induction knee injury. A preexisting knee injury will be considered to have been aggravated by service where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. In this case, there is no evidence in the record to indicate that the veteran's pre-existing knee injury was aggravated by active service. Although the veteran did report a left knee injury on August 23, 1967, that injury was treated with the use of a whirlpool. There was no notation of a knee injury on the veteran's October 1967 Release from Active Service medical form although the Board does note that this form was not signed by the veteran. Moreover, during a May 2004 VA examination, the examiner noted that the August 1967 service medical records found a slight laxity of the left knee joint. According to the veteran, this laxity in the left knee joint "was present after his first left knee injury prior to military service." Based on the information obtained, the examiner opined, "It is my opinion it is less likely than not that the veteran's left knee condition was permanently aggravated during military service." Following the examination, the examiner diagnosed the veteran with osteoarthritis of the left knee. To that end, it is noted that the veteran's service medical records are negative for complaint, treatment, or diagnosis of osteoarthritis. Moreover, there is no medical evidence that the veteran was diagnosed with osteoarthritis within one year of separation from service. Further, current private treatment records also show ligament laxity, a chronic degenerative tear of the meniscus, chondromalacia, a Baker's cyst, and joint effusion. However, the Board notes that the veteran has not provided a medical opinion linking any current left knee diagnosis including osteoarthritis to his period of active service. Therefore, service connection for these disabilities on a direct, or where applicable, presumptive basis, is not warranted at this time. In reaching its decision herein, the Board has carefully weighed the probative value of all of the evidence of record. For the reasons delineated below, the Board holds that service connection for a left knee injury, to include osteoarthritis, is not warranted at this time. 38 U.S.C.A. §§ 1110, 1153; 38 C.F.R. §§ 3.303, 3.306. Based on the probative evidence, the Board finds that the record demonstrates that the veteran had a left knee injury prior to his entry into active duty, as documented on by private medical records, the veteran's pre-induction examination, entrance examination, and his own medical history. The veteran has not presented any medical evidence to show that his preexisting injury was aggravated by his period of active service. Although he re-injured his left knee in August 1967, the veteran attested in May 2004 that the laxity in the left knee joint was present following his pre-induction knee surgery of 1960. The May 2004 VA examiner did not find any evidence of aggravation. Further, no examiner has opined that the veteran's current left knee disabilities were either incurred in or aggravated in active service. Therefore, the Board finds that service connection cannot be granted in this case. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. Accordingly, service connection is denied. ORDER Service connection for residuals of a left knee injury, to include osteoarthritis, is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs