KNEE IMPAIRMENT OF

Summary

The veteran, who served from July 2008 to February 2011, appeals the denial of service connection for a left knee condition. The Board acknowledged that the veteran has a current diagnosis of left knee tendonitis with patellofemoral pain syndrome and degenerative arthritis, and that there was evidence of a qualifying event during service, specifically left knee pain noted in service treatment records. However, the Board focused on the nexus element, finding that the evidence persuasively weighed against a service connection. The enlistment examination in August 2007 noted left knee pain aggravated by prolonged sitting, diagnosed patellar tendinitis, and recommended an orthopedic consult. The subsequent orthopedic visit diagnosed mild patellar tendinitis secondary to running, with no knee pathology or activity restriction. VA examinations in January and May 2021 opined that the condition was less likely than not incurred in or caused by service, and not aggravated beyond its natural progression. The May 2021 examiner found the condition existed prior to service and was not aggravated, citing normal range of motion and no instability. The Board found the January and May 2021 VA opinions probative and supported by adequate rationale, noting the pre-existing condition and lack of aggravation. The veteran's lay testimony about falls and aggravation was not considered medically competent to establish aggravation beyond natural progression. Therefore, service connection for the left knee condition was denied.

Rationale

Pre-existing left knee condition noted at enlistment examination.; Diagnosed with patellar tendinitis prior to service.; VA examinations opined condition was less likely than not related to service and not aggravated beyond natural progression.; Veteran's lay testimony regarding aggravation not considered medically competent.

Full Decision Text

Citation Nr: A22008333
Decision Date: 05/09/22	Archive Date: 05/09/22

DOCKET NO. 210618-167090
DATE: May 9, 2022

ORDER

Entitlement to service connection for a left knee condition is denied. 

FINDING OF FACT

The Veteran's left knee condition has not been aggravated by service and is not otherwise related to service.

CONCLUSION OF LAW

The criteria for entitlement to service connection for a left knee condition are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(b). 

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 2008 to February 2011. 

On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework.

In January 2021, the Agency of Original Jurisdiction (AOJ) issued a rating decision denying service connection for a left knee disorder.  In February 2021, the Veteran submitted a request for higher-level review of the issue.  In May 2021, the AOJ issued a higher-level review rating decision, denying service connection for a left knee disorder

In June 2021 the Veteran submitted a VA Form 10182 seeking review of entitlement to service connection for a left knee disorder.  The Veteran selected the Hearing Review Lane when he timely appealed this decision to the Board. The Hearing Lane permits the Board to review the evidence before the RO at the time of the original decision on appeal (here the January 2021 rating decision) and evidence submitted within 90 days from the Board hearing.

The Veteran provided testimony at a November 2021 Board hearing before a Veterans Law Judge.  A transcript of the hearing is associated with the claims folder.

Evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding the claim of entitlement to service connection for a left knee condition, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. The Veteran may file a Supplemental Claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran claims that his left knee condition is related to service. Specifically, during the November 2021 Board hearing, he indicated while stationed aboard the USS Crommelin, he fell down stairs due to the lack of stability on the ship, injuring his knee. He also noted that, during boot camp, he fell off of his bunk and injured his left leg. For the reasons discussed below, the Board finds the evidence weighs against a finding that the Veteran's current disability is related to service. Therefore, service connection is not warranted.

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 requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307, 3.309(a).  When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) for the showing
. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

In addition, for certain chronic diseases, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service.  38 C.F.R. §§ 3.307, 3.309(a).  When a chronic disease is not shown within one year after service, under 38 C.F.R. § 3.303(b) 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.  

When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. §§ 3.303(b), 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

When determining service connection, a presumption of soundness ordinarily applies. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). Pursuant to such presumption, 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the 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. § 1153; Wagner, 370 F.3d at 1096.

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. See 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Furthermore, temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to be considered aggravation of the condition, unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991).

Turning to the evidence, the Board acknowledges the favorable findings from the RO. Specifically, in its January 2021 rating decision, the RO found that the Veteran had a current diagnosis of left knee tendonitis with patellofemoral pain syndrome and degenerative arthritis. Therefore, the first element for service connection is met. See 38 U.S.C. §§ 1110, 1131. The RO also found there was evidence of a qualifying event, injury, or disease with its onset during service, as the September 2008 service treatment records (STRs) note a statement of continued left knee pain while in service. Therefore, the second element for service connection is met. Id. The Board is bound by these favorable findings. See AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07.

The remaining issue before the Board is whether the evidence supports a finding of a
 and degenerative arthritis. Therefore, the first element for service connection is met. See 38 U.S.C. §§ 1110, 1131. The RO also found there was evidence of a qualifying event, injury, or disease with its onset during service, as the September 2008 service treatment records (STRs) note a statement of continued left knee pain while in service. Therefore, the second element for service connection is met. Id. The Board is bound by these favorable findings. See AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07.

The remaining issue before the Board is whether the evidence supports a finding of a causal relationship between the present disability and the disease or injury incurred or aggravated during service.

Notably, the August 2007 enlistment examination noted a defect as the Veteran had pain in his left knee aggravated by sitting too long. It was recommended that he consult orthopedics. Under the comment section, the medical examiner noted stretching after prolonged sitting caused left knee pain. At a subsequent orthopedic clinic visit the Veteran was seen for pain in his left knee. He was diagnosed with patella tendinitis with no knee pathology and no restriction in activities. The doctor concluded there was mild patellar tendinitis secondary to running activity. 

Post service, a January 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. It was opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that the Veteran had documented left knee pain on enlistment with orthopedic consult and a diagnosis of left knee patella tendonitis with left knee patellofemoral pain syndrome (PFPS). Also, the examiner noted that an August 2007 record noted that stretching caused pain in the left knee and examination indicated patellar tendonitis and aggravated pain in the left knee. There was no knee pathology and no restriction in activity as a left knee X-ray was normal. Further, the examiner noted in October 2020 or 9 years post service, "the Veteran had an MRI of [the] left knee that showed the healed MCL sprain and degenerative changes of meniscus or degenerative arthritis." The examiner concluded, "that the left knee pain, PFPS, and left knee patella tendonitis were diagnosed prior to service and the other diagnosis of healed MCL sprain and degenerative arthritis were after service. A nexus has not been established."

A May 2021 VA examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. It was opined the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that the January 2021 examination demonstrated normal range of motion and normal lower extremity strength with no evidence of ankylosis or instability. The examiner concluded that "this falls within the projected natural history of the condition and does not represent aggravation (beyond natural progression)."

The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the current disability is not related to service.

In this regard the Board finds there is clear and unmistakable evidence that the left knee patellar tendinitis existed prior to service. Specifically, the August 2007 enlistment examination noted a defect as the Veteran had pain in his left knee aggravated by sitting too long. He was diagnosed with patellar tendinitis with no knee pathology and no restriction in activities. The doctor concluded there was mild patellar tendinitis secondary to running activity. Therefore, the presumption of soundness at service entrance did not attach regarding the preexisting left knee condition. 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304 (b). Now the question before the Board is whether the preexisting left knee condition was aggravated by active service.

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. Davis, 276 F.3d at 1342. Evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability. The mere occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Id.; 38 C.F.R. § 3.306 (a).

In this regard the Board finds the January and May 
existing left knee condition was aggravated by active service.

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. Davis, 276 F.3d at 1342. Evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability. The mere occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Id.; 38 C.F.R. § 3.306 (a).

In this regard the Board finds the January and May 2021 VA opinions probative. Notably the May 2021 VA examiner found the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. This opinion is supported by an adequate rationale as it was noted the January 2021 examination demonstrated normal range of motion and normal lower extremity strength with no evidence of ankylosis or instability and "this falls within the projected natural history of the condition and does not represent aggravation." A review of the remaining record shows no contrary competent opinions to refute this finding. 

The Board acknowledges the Veteran's belief that his left knee condition was aggravated by his service, to include multiple in-service falls. However, his statements alone do not establish a medical nexus. Indeed, while the Veteran is competent to provide statements regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions on questions of etiology.  In that regard, while the Veteran is competent to report that he fell and injured his left knee during service, he is not competent to report that the in-service events aggravated his pre-existing left knee disability beyond its normal progression. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007) (lay testimony is competent to establish the presence of observable symptomatology). As the Veteran has not provided any lay statements describing a permanent increase in symptomatology following his active duty service, his lay statements are not probative as to whether his pre-existing left knee disorder was aggravated by his active duty service.

For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether service connection for a left knee disorder is warranted.  Rather, the evidence persuasively weighs against the claim.  The benefit of the doubt doctrine is therefore not for application. Lynch v. McDonough, 21 F.4 th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application).

 

 

MICHELLE P. KATZ

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Jackman, Bridget

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.