Citation Nr: 0728400 Decision Date: 09/11/07 Archive Date: 09/25/07 DOCKET NO. 04-33 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for degenerative arthritis, patellar subluxation, and internal derangement of the right knee. 2. Entitlement to service connection for degenerative arthritis and internal derangement of the left knee. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran had active service from October 1984 to October 1988. The veteran filed his initial claim in December 2002. This appeal to the Board of Veterans Appeals (Board) is from action taken by the above Department of Veterans Affairs (VA) Regional Office (RO) in April 2003. The issue # 2 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. FINDINGS OF FACT The competent and probative medical evidence is at least in approximate balance as to whether an injury or injuries to the right knee in service served to chronically increase pre- existing right knee pathology beyond the natural progress of the prior condition. CONCLUSION OF LAW Giving the benefit of the doubt to the veteran, his pre- existing right knee disability was aggravated in service. 38 U.S.C.A. §§ 1110, 1111, 1131; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159, 3.326(a) (2006). In view of the grant herein as to the issue of entitlement to service connection with regard to the right knee as sought by the veteran, there is no need for further discussion of notice or development. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the 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 to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Pertinent Laws and Regulations Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2006). In order to prevail on the issue of service connection for any particular disability, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346 (1999). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition 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). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). The Board notes that the language of the aforementioned regulation at 38 C.F.R. § 3.304(b) (2004) was amended during the pendency of this appeal, effective May 4, 2005. See 70 Fed. Reg. 23,027-29 (May 4, 2005) (now codified at 38 C.F.R. § 3.304(b) (2006)). The amended regulation requires that VA, rather than the claimant, bear the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. As noted, under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). Inasmuch as this case involves a condition which existed prior to service and the question of aggravation due to service, the Board points out that there has been a change in the interpretation of the law with respect to the adjudication of claims involving pre-existing conditions and the application of the presumption of soundness. Essentially, the law as recently interpreted under Cotant v. Principi, 17 Vet. App. 116 (2003) and VAOPGCPREC 3-2003 (July 16, 2003), mandates that, to rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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. Specifically, VAOPGCPREC 3-2003 held 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 will attach. It was determined that the provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C.A. § 1111, insofar as section 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. It was concluded that 38 C.F.R. § 3.304(b) is invalid and should not be followed. Regarding the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the pre-existing condition increased in severity during service, it was determined that this properly implements 38 U.S.C.A. § 1153, which provides that a pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C.A. § 1153, and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C.A. § 1111. In a decision by the Federal Circuit Court, the Court explained that when no pre-existing 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 pre-existing 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" pre- existing condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected disability benefits. However, if the Government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. On the other hand, if a pre-existing 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 section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the Government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Court has held that the Board is prohibited from reaching its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). When the medical evidence is inadequate, the VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). III. Factual Background and Analysis In summary, the veteran's service medical records show that on the entrance examination, he reported that he had undergone surgery to remove parts of the lateral meniscus, since which he had been asymptomatic. The examiner found no right knee disability, and X-rays were negative. Service medical records show that on several occasions, the veteran had right knee complaints in service, and on at least one occasion, when jumping out of the bed of a truck, he heard the knee "pop," after which he was diagnosed with a patellar dislocation for which he was given a treatment regimen. He was initially seen by the Lutheran Healthcare Network in May 1988 for the right knee dislocation, after which he returned to base and was seen by the service facilities. Thereafter, he continued to have right knee pain and, although the dislocation was said to have resolved, he still had a diagnosis of medial collateral ligament strain. A subluxating right patella was identified on his separation examination. The private facility and transportation service wherein the veteran received his initial transportation and care after hurting the right knee (off-base but while in service) have indicated that no records are available. However, since the records from immediately subsequent in-service care are in the file, these private records are not pivotal to the case. Post-service VA clinical record show ongoing problems with his right knee, some of which has been said to be due to his being overweight. In early 2003, he was noted to have a right medial meniscus and medial collateral ligament tear, and after the knee was injected, he was given medications and a brace. A special VA orthopedic evaluation was undertaken in February 2003. At that time, the entire file was available to the examiner. The veteran reported having had right knee problems prior to service, at age 17 or 18. He had had surgery to correct the problem with the knee locking up. Some cartilage had been removed, and he did well thereafter until the incident in service in 1988 when he dislocated the right knee as he stepped out of the truck. He said that the knee had then collapsed. Diagnosis was MCL strain and patellar dislocation of the right knee for which he had been casted for several weeks. Since then, the veteran reported that he had noticed that the knee would become painful, stiff, and swell with cold and wet weather. Occasionally, there was a sense that the right patella moved slightly, but there had been no true dislocation. He had gained some more weight. Magnetic resonance imaging (MRI) of the right knee now showed tibiofemoral joint posterior subluxation and lateral subluxation of the patellofemoral joint; advanced patellofemoral joint arthrosis with severe cartilage destruction along the anterior margin of the distal femur; possible medial tibial plateau, small osteochondral fracture; medial meniscus tear; and a medial collateral ligament tear. In sum, the examiner opined that "the service injury did contribute to the aggravation of his (right knee) problem, but to a relatively small degree considering the fact that it was a pre-existing condition, and that in the interval he has had almost 15 years of knee damage related to his obesity". In this case, the veteran admittedly had right knee problems prior to service, but after removal of some cartilage as a teenager, he was without residuals, including at the time of entrance into service. On several occasions thereafter in service, he had right knee complaints. And on one particular occasion, he actually re-injured the right knee when jumping from a truck bed, and that injury is well documented. The Board is constrained in this instance by both the medical opinion of record and the parameters imposed by both regulations and judicial mandates as to aggravation. The question which remains, then, is whether the pre-existing right knee disability was aggravated in service. The essence of resolution for the adjudicative question becomes that, while he may have had a right knee problem prior to service, his in-service experiences permanently increased the severity thereof beyond what might have been anticipated to have occurred as the natural progress of the disability. That fulfills the fundamental criteria for a finding of in-service aggravation. In this case, it is noteworthy that he was asymptomatic at entrance and X-rays were negative; but following the injury in 1988 and extended treatment including a significant period of casting, he was found to have subluxation of the right patella at separation. A recent VA examiner opined that the in-service injury did contribute to the aggravation of his pre-existing right knee problem. Thus, the fact that the opinion equivocates as to the relative degree of the acknowledged aggravation becomes essentially irrelevant to the resolution of the adjudicative issue at hand. In summary, having weighed the evidence both in support of and against the claim, including the recent medical opinion of record, the Board concludes that the preponderance of evidence is not against finding in favor of the appellant. Therefore, the Board will exercise its discretion to find that the evidence is in relative equipoise, and concludes that service connection for a right knee disability, specifically, degenerative arthritis, patellar subluxation, and internal derangement of the right knee, is warranted on the basis of in-service aggravation of the veteran's pre- existing right knee disability. ORDER Service connection for degenerative arthritis, patellar subluxation and internal derangement of the right knee is granted. REMAND The veteran primarily contends that he has a left knee disorder that is caused or aggravated by the now (herein) service-connected right knee disorder. With the grant herein, and notwithstanding the tangential VA medical opinion of record from 2003, the Board notes that the VA examination report does not sufficiently address the question of whether the veteran has additional disability resulting from aggravation of his now non-service-connected left knee by any service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that 38 C.F.R. § 3.310(a) authorizes a grant of service connection not only for disability caused by a service-connected disability, but also for the extent of additional disability resulting from aggravation of a non-service-connected disability by a service-connected disability). Accordingly, a definitive medical opinion on the question of whether there has been a measurable permanent increase of a now non-service-connected left knee disability caused by a service-connected disability is also needed. The Board further notes that 38 C.F.R. § 3.310 has been amended recently. The intended effect of this amendment is to conform VA regulations to the Allen decision, supra. 71 Fed. Reg. 52,744 (Sept. 7, 2006) (to be codified at 38 C.F.R. § 3.310(b)). The RO will need to assess the claim with consideration of the regulatory amendment in this appeal. In this case, service medical records do not confirm, and the veteran does not allege, any left knee problems in service. However, post-service VA clinical evaluations have shown left knee complaints. Sometime in mid-2002, he apparently began to have more significant left knee pain. A MRI of the left knee in November 2002 showed a small vertical tear of the anterior horn of the medial meniscus; patellofemoral joint arthropathy with moderately severe destruction and non- uniformity of articular cartilage along the anterior aspect of the distal femur; and focal marrow edema in the anterior- nonweightbearing portion of the distal femur. Based on the evidence of record, and the grant herein of service connection for the one knee, the Board finds that it is not unreasonable to return the case for a thoughtful and reasoned reevaluation of the impact that the service- connected disability may or may not have had on the other knee. Accordingly, the case is REMANDED for the following action: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). If the veteran has additional post-service clinical information with regard to care for his knees, he should provide it, and the RO should assist to the extent possible. Up-to-date VA clinical records for both knees should also be acquired and attached to the file. 2. The veteran should then be scheduled for another orthopedic examination. The claims file must be made available, to include all post- service evidence with regard to the knees. All indicated tests and studies should be performed, and the physician should review the results of any testing prior to completing the report. A complete diagnosis should be given. a. In the examination report, the physician should discuss the nature and extent of any current left knee disorder and then set forth the medical probability of whether it is at least as likely as not that any currently demonstrated left knee disorder has been caused, contributed to, or in any way impacted and/or aggravated by the service-connected right knee disability. b. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. c. Note: The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. 3. The case should then be reviewed by the RO, and if the decision remains unsatisfactory, an SSOC should be issued and the veteran and his representative provided a reasonable opportunity to respond. The case should then be retuned to he Board for further appellate review. The veteran need do nothing further until so notified. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _______________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs