Citation Nr: 0727802 Decision Date: 09/05/07 Archive Date: 09/14/07 DOCKET NO. 06-20 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for degenerative joint disease of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. B. Cryan, Counsel INTRODUCTION The veteran had active service from November 1969 to September 1971, from January 1991 to March 1991, and from October 2003 to April 2005. This case is before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which, in pertinent part, denied service connection for degenerative joint disease of the right knee. In June 2007, the veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of his testimony is associated with the claims file. At the hearing, the veteran appeared to raise a new claim of service connection for a right knee meniscus tear. The issue is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran clearly and unmistakably had a right knee disability status post arthroscopic surgery which existed prior to his last period of service from October 2003 to April 2005. 2. The veteran's pre-existing degenerative joint disease of the right knee underwent an increase in severity during active service, and the medical evidence of record does not suggest that the increase was due to the natural progression of the disease. CONCLUSION OF LAW The criteria for service connection for a right knee disability have been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Notice and Assistance Given the favorable nature of the Board's decision on the issue of service connection for degenerative joint disease of the right knee, there is no prejudice to the appellant, regardless of whether VA has satisfied its duties of notification and assistance. II. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestations in service will permit service connection. To show 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 as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post- service development of a presumptive disease such as arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1137; 38 C.F.R. §§ 3.307, 3.309. In order to prevail on the issue of service connection, there must be medical evidence of a (1) 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). The credibility and weight of all the evidence, including the medical evidence, should be assessed to determine its probative value, and the evidence found to be persuasive or unpersuasive should be accounted for, and reasons should be provided for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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.A. § 1111. To rebut the presumption of sound condition under section 1111 for conditions not noted at entrance to service, 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. VAOPGCPREC 3-03 (July 16, 2003). See also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The effect of section 1111 on claims for service-connected disability thus may be summarized as follows: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. 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. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004). The veteran seeks service connection for aggravation of a pre-existing right knee injury. The record reflects that the veteran injured his right knee in 1989, between his first and second periods of active duty. Specifically, an April 2003 pre-enlistment/deployment examination report revealed that the veteran underwent arthroscopic surgery on his right knee in 1989. Further work-up in April 2003 revealed degenerative joint disease and the veteran was referred to the medical review board for consideration of a permanent profile for walking instead of running. Thus, the presumption of soundness as to the veteran's right knee has been rebutted by the finding that the veteran underwent surgery on his right knee in 1989 and the finding of degenerative joint disease of the knee when the veteran was examined in April 2003, prior to his third period of active service. The veteran does not dispute this, and essentially stipulated to such at his video conference hearing in June 2007. If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for incurrence in service for that disorder, but a veteran may bring a claim for service- connected aggravation of that disorder. See 38 U.S.C.A. § 1153. In that case, 38 U.S.C.A. § 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active 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(a). 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). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994). This means the base line to measure any worsening of a disability is the veteran's disability as shown in all of his medical records, not on the happenstance of whether he was symptom-free when he enlisted. See Green v. Derwinski, 1 Vet. App. 320, 323 (1991). The veteran asserts that he aggravated his pre-existing right knee disability during service in Iraq in 2004/2005. At his video conference hearing in June 2007, the veteran testified that his knee was aggravated because of additional weight carried during service, including a flack vest, IBE, his weapon with rounds, and his duffle back (molly pack). The veteran asserts that at some point during service in Iraq in 2004/2005, he tore his right meniscus, but this was not reflected in the service medical records because it did not show on the x-ray taken during that time period. A magnetic resonance imaging (MRI) taken after discharge from service did show a soft tissue abnormality. The veteran's right knee degenerative joint disease did undergo a permanent increase in severity during service. The April 2003 pre-deployment examination reports noted the previous surgery, and found the condition was not considered disqualifying. A July 2005 VA radiographic report, taken only three months after discharge from service, revealed moderate medial joint compartment narrowing. An August 2006 VA clinical report noted severe osteoarthritis, and the doctor opined that the veteran's duty in Iraq most likely led to the progression of the veteran's right knee osteoarthritis, although it was very difficult to tell the extent of the progression. There was no doubt, however, that the veteran's active service in 2004/2005 did lead to at least some progression of the osteoarthritis. The evidence did not specifically address whether any increase in severity of the right knee arthritis during service represented a natural progression of the disease. The presumption of aggravation may only be rebutted if "there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 C.F.R. § 3.306(a) (emphasis added). The standard, "clear and unmistakable evidence," imposes a very high burden on VA to overcome. The evidence in this case does not show that the veteran's increase in severity of his pre-existing degenerative joint disease of the right knee was clearly and unmistakably due to the natural progression of the disease. Accordingly, the claim is granted on the basis of a presumption of aggravation based on the application of benefit of the doubt in the veteran's favor. ORDER Service connection for right knee degenerative joint disease based on aggravation is granted. _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs