Case A26030264

PAUL SORISIO · 2026 · Case ID: A26030264

MIXED

Summary

The veteran, who served from April 2010 to April 2015, appeals the denial of service connection for headaches, a dental condition, and a back disability, as well as the dismissal of the left knee issue. The Board granted service connection for headaches, finding that the veteran's testimony and post-service reports of continuing headaches, despite a negative VA opinion, established the claim. The Board found the VA examiner's opinion inadequate for failing to consider the veteran's reports and for relying on a lack of continued care, thus resolving doubt in the veteran's favor. Service connection for a dental condition was denied, as the Board found the evidence, including a VA dental examination, weighed against the claim and did not meet VA criteria for compensation. The Board dismissed the left knee issue due to the veteran's withdrawal at the hearing. The back disability claim was denied, as the Board found the evidence, prior to the rating decision, did not show a current disability or persistent symptoms, and a later submitted diagnosis of arthritis was not considered due to its submission after the rating decision. The case was remanded for further development on the neck disability, psychiatric conditions (including PTSD and anxiety), and the right knee disability. For the neck, the remand is for an adequate VA opinion on the link to service, considering the veteran's reports and the inadequacy of the prior opinion. For psychiatric conditions, the remand is for an adequate opinion on the PTSD stressor and other mental health diagnoses, addressing the examiner's failure to fully discuss the stressor. For the right knee, the remand is to determine if the worsening of the pre-existing condition was due to natural progression, as the prior VA examination was inadequate.

Special Benefit

NO SPECIAL BENEFIT

Docket No.

210301-143382

Full Decision Text

Citation Nr: A26030264
Decision Date: 04/02/26 Archive Date: 04/02/26

DOCKET NO. 210301-143382
DATE: April 2, 2026

ORDER

Service connection for a left knee disability is dismissed.

Service connection for headaches is granted.

Service connection for a back disability is denied.

Service connection for a dental condition is denied.

REMANDED

Entitlement to service connection for a neck disability is remanded.

Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD) and anxiety, is remanded.

Entitlement to service connection for a right knee disability is remanded.

FINDINGS OF FACT

1. On November 25, 2024, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran confirming that a withdrawal of the Veteran's appeal in the matters of entitlement to service connection for left knee was requested.

2. The Veteran currently has a diagnosis of headaches that caused functional impairment of earning capacity, he began to experience such headaches in service, and these headaches have continued to the present day.

3. The Veteran does not have and has had at any time during the appeal, a current disability, to include impairment of earning capacity, of the back nor did the record show an in-service event/injury.

4. The evidence of record persuasively weighs against finding that the Veteran has a current dental disorder for which VA disability compensation may be paid.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal seeking service connection for a left knee disability are met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

2. The criteria for service connection for headaches are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.

3. The criteria for establishing service connection for a dental disability for compensation purposes are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.381, 4.150.

4. The criteria for service connection for back condition are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303

5. The criteria for entitlement to service connection for right knee disability based on aggravation of a pre-existing disability, are not met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 2010 to April 2015.

This matter comes before the Board of Veterans' Appeals (Board) from December 10, 2020 December 21, 2020 (right knee only) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed this decision to the Board on March 1, 2021 by filing a VA Form 10182 Notice of Disagreement (NOD) in which he selected the Board's Hearing docket.

Based on this selection, the evidence for consideration by the Board is evidence of record at the time of the December 10, 2020 rating decision and, for the right knee, evidence at the time of the December 21, 2020 rating, and any evidence submitted at the Board hearing on November 25, 2024 or within 90 days following the hearing which is February 24, 2025. 38 C.F.R. § 20.302(a). If the Veteran submitted evidence that was added to the record after the December 10, 2020 rating decision or after the December 21, 2020 rating decision (concerning the right knee disability), and before the November 25, 2024 Board hearing, or more than 90 days following the Board hearing, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

Dismissal

Entitlement to service connection for a left knee disability

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal
the December 10, 2020 rating decision or after the December 21, 2020 rating decision (concerning the right knee disability), and before the November 25, 2024 Board hearing, or more than 90 days following the Board hearing, the Board did not consider it. If the Veteran wishes to have VA consider any evidence that was not considered, a supplemental claim should be submitted identifying such evidence. See 38 C.F.R. § 3.2501.

Dismissal

Entitlement to service connection for a left knee disability

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Withdrawal may be made by the Veteran or by his or her authorized representative. Id. For the veteran to withdraw an issue that is on appeal on the record during a Board hearing, the withdrawal must be 1) explicit, 2) unambiguous, and 3) done with a full understanding of the consequences of such action by the veteran. Acree v. O'Rourke, 891 F.3d 1009, 1012-13 (Fed. Cir. 2018).

In the present case, the Veteran withdrew the left knee issue at the November 25, 2024 Board hearing and expressed his desire to withdraw his appeal of the above listed issue. The Veteran affirmed the withdrawal of the issue and was informed that no decision would be made and the issues would be dismissed. The presiding VLJ discussed with the Veteran regarding the what a dismissal would entail. As such, the Board finds that such withdrawal was explicit, unambiguous, and done with a full understanding of the consequences.

Therefore, there remains no allegations of errors of fact or law for appellate consideration regarding the left knee disability. Accordingly, this issue is dismissed.

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 1) evidence of a current disability; 2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and 3) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

1. Entitlement to service connection for headaches.

The Veteran contends that his headache disability is related to active service. During the November 2024 Board hearing, the Veteran testified that his headache disability was also secondary to a cervical spine disability and lumbar spine disability.

The December 10, 2020 rating decision on appeal included a favorable finding that the April 2020 VA examination showed subjective pain resulting in functional impairment of earning capacity to constitute a disability. This rating decision further reflects that the Veteran was diagnosed with headaches per an April 2010 service treatment records. The Board sees no reason to disturb these favorable findings so it is bound by them. These favorable findings establish a current disability and an in-service event, injury, or disease.

The Veteran underwent a VA examination in April 2020 and reported a 2010 onset of his headaches and that he continued to have such headaches since their onset at a frequency of 4-5 times per week. The April 2020 VA examiner opined that it was less likely than not that the Veteran's headaches were incurred in or caused by active service. The VA examiner acknowledged the Veteran's reports of having headaches since separation from service 4 to 5 times per week lasting 1 or 2 days. In support, the VA examiner noted that during active service, the Veteran's headaches were acute only with no evidence of chronicity of care with no nexus established. Additionally, the VA examiner reported that headaches were listed under inactive problems. The VA examiner also determined there was no chronicity of care with no established headache disability. The VA examiner noted that headaches reported by the Veteran were subjective only.

Importantly, a nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). Migr
during active service, the Veteran's headaches were acute only with no evidence of chronicity of care with no nexus established. Additionally, the VA examiner reported that headaches were listed under inactive problems. The VA examiner also determined there was no chronicity of care with no established headache disability. The VA examiner noted that headaches reported by the Veteran were subjective only.

Based on the above, and resolving doubt in favor of the Veteran, the Board finds that service connection for migraine headaches is warranted. The weight of the evidence establishes that the Veteran currently has a diagnosis of migraine headaches, that he began to experience migraine headaches in service, and that these headaches have continued to the present day. The Board places less weight on the 2020 VA examination report as it appears to have ignored the Veteran's post-service report of continuing headaches and it rationale rests heavily on the lack of continued care. As such, the Board finds that all criteria for entitlement to service connection for migraine headaches are met. 38 C.F.R. §§ 3.102, 3.303(b), 3.309(a).

2. Entitlement to service connection for a dental condition

The Veteran contends that his dental disability is related to active service. During the November 2024 Board hearing, the Veteran testified that he received a filling during active service and eventually lost that tooth.

A February 2015 separation examination shows the Veteran reported dental and tooth conditions.

A November 2020 VA dental examination and medical opinion report shows that the VA examiner opined that it was less likely than not that any dental condition was related to active service. The VA examiner noted that nothing was revealed on examination regarding the Veteran's claimed condition. The VA examiner noted that the Veteran was not diagnosed with an oral or dental condition. The report reflects that the examiner's review of the Veteran's service treatment records showed that he had symptomatic tooth #30. Pain and Swelling on Tooth #12, and in July 2012 after RCT (root canal treatment) had been completed a localized SRP was completed. RCT was completed on tooth #30. Extraction was performed for tooth #12. Tooth #30 became symptomatic again and new restoration was recommended and completed in 2015. The Veteran was noted to be referred to get implant to restore edentulous area tooth #12. The Veteran reported that the tooth implant was placed in Navy in tooth #12 region. Imagining in July 2020 showed multiple large restorations, tooth #12 implant, and RCT and Crown regarding tooth #30. Additionally, a bridge upper tooth #4-d and bitewing x-rays showed several tooth restorations.

The Veteran's service treatment records do not reflect any injuries/trauma to the face or mouth. The Veteran does not allege, and the evidence does not demonstrate impairment of the mandible, loss of substance of the maxilla or mandible, osteomyelitis, or loss of teeth due to trauma during service. 38 C.F.R. § 4.150. Under current VA regulations, compensation is only available for certain types of dental and oral conditions listed under 38 C.F.R. § 4.150, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. Compensation is available for loss of teeth only if such is due to loss of substance of body of maxilla or mandible due to trauma or disease such as osteomyelitis, but not periodontal disease. Otherwise, a Veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; Simington v. West, 11 Vet. App. 41, 44 (1998) (noting the distinction between replaceable missing teeth which can be service connected for treatment purposes only and teeth lost "as a result of 'loss of substance of body of maxilla and mandible' which can be assigned
a Veteran may be entitled to service connection for dental conditions including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; Simington v. West, 11 Vet. App. 41, 44 (1998) (noting the distinction between replaceable missing teeth which can be service connected for treatment purposes only and teeth lost "as a result of 'loss of substance of body of maxilla and mandible' which can be assigned ratings

The Board finds the VA examination of record to be competent evidence as it was performed by a dentist. The Board also finds it to be probative that the Veteran does not have a dental disability under the VA criteria. The Board also finds it to be highly persuasive on the dental issue on appeal. In this regard, the Veteran's contentions were adequately addressed. The examiner conducted an in-person examination, showed knowledge of relevant facts, to include the Veteran's dental treatment in service, and reviewed diagnostic testing/imaging. Additionally, the examiner provided a supported rationale and included specific facts from the record, such as indicating that no soft tissue or bony defects were noted.

After review of the competent and probative evidence, the Board finds that most of the persuasive evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal) for service connection for a dental disorder. The examiner concluded that the Veteran did indeed have tooth removal, restorations, and a root canal that were not related to active service. As the Veteran did not have loss of the substance of the body of the maxilla or the mandible in service, the Board finds that the Veteran does not have any dental or oral condition for which service connection for compensation purposes can be awarded. See 38 C.F.R. § 4.150, Diagnostic Codes 9900, 9916. There is also no positive nexus opinion for service connection of record that addresses the Veteran's dental disorders. See 38 U.S.C. § 5107(a) ("Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.").

The Board recognizes the Veteran's belief that he has a dental disorder due to service, to include negligent treatment, but the competent and probative evidence of record does not establish that he is competent, by education, training, etc., to provide a nexus statement in a matter involving a complex medical matter, such as the dental process at issue here. As such, the Veteran's statements in this regard are not competent and lack weight.

Therefore, as most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable, and the claim for service connection for a dental disorder is denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

3. Entitlement to service connection for a back disability is remanded.

The Veteran contends that his back disability is related to active service. During the November 2024 Board hearing, the Veteran testified that his back disability was as a result of general wear of tear of active service to include having to carry heavy firefighting equipment. He testified that the weight of the equipment compressed his spine.

A review of the Veteran's service treatment records shows no reports or assessments of back or spine pain. The Board does note that in April 2010, the Veteran did report cervical spine and neck pain which will be addressed under the issue below.

A February 2015 separation examination shows that the Veteran self-reported tooth issues, chest pain, and foot pain. No spine pain was reported. The Veteran's was assessed with a clinically normal spine with notation of a prior right knee surgery.

Post-service, a May 2018 private treatment record shows that the Veteran was in a motor vehicle accident in 2017 that caused his neck and back to tighten up, but had dissipated over time.

An April 2021 VA treatment record, submitted in the open evidence window after the Board hearing, shows that the Veteran was assessed with lumbar spine arthritis via imagining/x-rays.

The record, at the time of the rating decision on appeal, did not tend to show a current disability or an in-service event/injury. With

VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability and the record indicates that the disability or signs
treatment record shows that the Veteran was in a motor vehicle accident in 2017 that caused his neck and back to tighten up, but had dissipated over time.

An April 2021 VA treatment record, submitted in the open evidence window after the Board hearing, shows that the Veteran was assessed with lumbar spine arthritis via imagining/x-rays.

The record, at the time of the rating decision on appeal, did not tend to show a current disability or an in-service event/injury. With

VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability and the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient information to make a decision on the claim. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The threshold for finding a link between a current disability and service is low. McLendon, 20 Vet. App. at 83.

Here, the record, prior to the rating decision on appeal did not show a current disability or persistent or recurrent symptoms related to a back disability. As such, VA's duty to assist was not triggered at that time. While in the open evidence window after the November 2024 Board hearing the Veteran submitted evidence of a diagnosis of back disability diagnosed as arthritis in April 2021, which is approximately 4 months after the rating decision on appeal. This evidence was not before the RO at the time of the December 2020 rating decision on appeal. As just explained, without competent evidence of a current disability, VA's duty to provide an examination was not activated.

As most of the evidence weighs against the claim (that is to say, is neither in approximate balance nor nearly equal), the benefit-of-the-doubt rule is inapplicable and the claim for service connection for a back condition is denied. Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021).

REASONS FOR REMAND

1. Entitlement to service connection for a neck disability is remanded.

The Veteran contends that his neck disability is related to active service. During the November 2024 Board hearing, the Veteran testified that his neck disability was as a result of general wear of tear of active service to include having to carry heavy firefighting equipment. He testified that the weight of the equipment compressed his spine.

An April 2010 service treatment record shows that the Veteran reported a pain in the neck and headaches when he woke up. The Veteran was diagnosed with headaches and the cervical spine was assessed as normal.

A February 2015 separation examination shows the Veteran self-reported tooth issues, chest pain, and foot pain. He was clinically assessed with a normal spine but with notations of a past right knee surgery.

An April 2020 VA medical opinion DBQ shows that the VA examiner opined that it was less likely than not that the Veteran's neck disability was incurred in active service to include reported of in-service neck pain. The VA examiner noted that the Veteran reported neck pain during active service in April 2010 which showed he complained of neck pain since waking in the morning. At the time of treatment, the Veteran reported that he would use Aleve at home and he was fine. The VA examiner reported a nine-year absence of treatment for a neck condition after service records and without medical records showing treatment or letters of support a nexus cannot be established.

A medical opinion based solely on the absence of documentation in the record is inadequate and a medical opinion is inadequate if it does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Nicholson, 21 Vet. App. 23 (2007). Because the April 2020 VA medical opinion does not consider the Veteran's lay statements and relied on an absence of documentation in the record, the Board finds that the opinion is inadequate. As such, the Board finds that the failure to afford the Veteran an adequate medical opinion constitutes a pre-decisional duty to assist error and that a new examination and medical opinions addressing direct service connection is required in order to cure this error. 38 C.F.R. § 20.802(a).

2. Entitlement to service connection for a psychiatric disability, to include PTSD and anxiety, is remanded.

The Veteran contends that his diagnosed PTSD was caused by various stressors events that occurred during active service. The Veteran's military occupational specialty as an electrical maintenance man.

Favorable findings noted on the rating decision on appeal showed that a stressor was conceded based on the Veteran's service in an area of potential hostile military or
. As such, the Board finds that the failure to afford the Veteran an adequate medical opinion constitutes a pre-decisional duty to assist error and that a new examination and medical opinions addressing direct service connection is required in order to cure this error. 38 C.F.R. § 20.802(a).

2. Entitlement to service connection for a psychiatric disability, to include PTSD and anxiety, is remanded.

Favorable findings noted on the rating decision on appeal showed that a stressor was conceded based on the Veteran's service in an area of potential hostile military or terrorist activity as report showed receipt of Hostile Fire/Imminent Danger Pay. Additionally, the Veteran was determined to have a current disability of PTSD per September 2020 VA examination report.

An October 2019 stressor statement submitted by the Veteran shows that he reported search and rescue operations in the middle east while aboard the USS Truxtun.

A September 2020 VA PTSD DBQ shows that the VA examiner diagnosed the Veteran with PTSD. The Veteran reported stressor incidents for an explosion aboard his ship that he thought was a missile attack that he had to respond to as part of the fire response team. The Veteran also reported being part of a search and rescue mission in 2014. He reported that he would board ships to confiscate drugs and other contraband. The Veteran described that he would board other ships due to his electrical skill and was not provided with a weapon or protective equipment. The VA examiner noted that the Veteran's stressor met the Criterion A to support a diagnosis of PTSD but that the stressor was not related to the fear of hostile military or terrorist forces but was related to search, rescue, and firefighting.

Service connection for PTSD may be granted if the evidence of record satisfies three basic elements. There must be: 1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125 (a); 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f).

After a review of the evidence of record the Board finds that the September 2020 VA PTSD examination report is inadequate for adjudication purposes. Here, the VA examiner did report that the Veteran's stressor was related to fire response and not to a fear of hostile military or terrorist forces. However, as noted in the Veteran's reported to the VA examiner, he reported that he thought a missile had struck his ship. Here, the Board finds that the VA examiner did not fully discuss the Veteran's stressor statement and therefore a pre-decisional error was committed by the AOJ. Accordingly, the Board finds the evidence of record is inadequate to resolve the claim of entitlement to service connection for PTSD. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made).

As such, a remand is required to obtain an adequate medical opinion as to outstanding questions of a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor.

3. Entitlement to service connection for a right knee disability

The Veteran contends that service connection is warranted for a right knee disability as during active service, he slipped and fell on the right knee.

At the time of the service entrance examination, 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, 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. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994).

When the veteran is presumed sound at entrance, 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. Wagner v. Principi, 370 F.3d 1089,
such service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304(b). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994).

When the veteran is presumed sound at entrance, 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. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The U.S. Court of Appeals for Veterans Claims (Court) in Horn v. Shinseki, explained that even when there is clear and unmistakable evidence of pre-existence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease.

On the other hand, where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). "If the presumption of aggravation under section 1153 arises, the burden then 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.' Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); Horn v. Shinseki, 25 Vet. App. at 235 (2012) ("Once the Veteran establishes worsening, the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease."); see also 38 C.F.R. § 3.306(b).

Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Vanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.").

As an initial matter, the record has raised the issue of whether the Veteran had a preexisting disability. As noted above, a veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not
. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected").

A pre-existing injury or disease noted at entry will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. The provisions of 38 C.F.R. § 3.306(b) provide that aggravation may not be conceded unless the pre-existing condition increased in severity during service.

An important distinction between section 1111's aggravation prong of the presumption of soundness and section 1153 presumption of aggravation is the burden of proof. Under section 1111, the burden is on the Government to show by clear and unmistakable evidence that there was no increase in disability in service or, that any increase was due to the natural progress of the disease. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under section 1153, however, the appellant bears the burden of showing that his pre-existing condition worsened in service. Once the veteran establishes worsening, the burden shifts to VA to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2014).

Here, a May 2009 report of medical examination reflects that a clinical evaluation of the lower extremities (except feet), in box #34, was normal. Meanwhile, box #37 for identifying body marks, scars, tattoos was abnormal and the clinical annotated "[s]urgical repair [r]ight anterior knee." Later in this report, in box #77 labeled as summary of defects and diagnoses, the clinician wrote "34) surgery right knee 11 yrs ago had repair of ACL." A notation in box #73 indicates "ortho consult" and that the Veteran was "able to part take in all activities" with no restrictions. At the Board hearing, the Veteran testified that he had right knee surgery when he was 21 years old, about 12 years prior to his active service period. The Board finds that, after a thorough analysis of the evidentiary showing and careful correlation of all material facts, the Veteran's right knee disability was noted upon entrance when he was examined, accepted and enrolled for service. In short, the Veteran's right knee disability was noted upon clinical examination for entrance to active duty service and was also noted to cause no restriction of activities. As such, the presumption of soundness does not attach concerning the right knee even though it appears to have been asymptomatic at entrance. See Amezquita v. Collins, 135 F.4th 1369 (Fed. Cir. 2025) (stating that the presumption of soundness under 38 U.S.C. § 1111 does not attach to noted defects, even if they were asymptomatic at the time they were noted at the time of examination, acceptance, or enrollment into service).

Next, the burden is on the Veteran to show that there was an increase during service. In this regard, a December 2010 service treatment record shows the Veteran slipped and hurt his right knee. The Veteran's right knee was noted to demonstrate post-surgical changes with no evidence of fracture or dislocation. A well preserved joint space was noted. X-rays of right knee show no dislocations or fractures. Post-surgical changes without evidence of acute fractures or dislocation were noted. Subsequently, an April 2011 service treatment record shows that the Veteran reported right knee pain for 3 months after fall. His ACL that was previously repaired was noted to be intact. The February 2015 separation examination shows that the Veteran reported tooth issues, chest pain, and foot pain. Clinical examination of the lower extremities was normal. The Veteran's history of a post ACL reconstruction was noted. The separation reports do not reflect a diagnosis of the right knee disability.

As noted above, the Veteran was treated for a right knee injury
fracture or dislocation. A well preserved joint space was noted. X-rays of right knee show no dislocations or fractures. Post-surgical changes without evidence of acute fractures or dislocation were noted. Subsequently, an April 2011 service treatment record shows that the Veteran reported right knee pain for 3 months after fall. His ACL that was previously repaired was noted to be intact. The February 2015 separation examination shows that the Veteran reported tooth issues, chest pain, and foot pain. Clinical examination of the lower extremities was normal. The Veteran's history of a post ACL reconstruction was noted. The separation reports do not reflect a diagnosis of the right knee disability.

As noted above, the Veteran was treated for a right knee injury after a slip and fall in December 2010. The Board notes that treatment alone does not establish a worsening, as it does not show an increase in frequency or severity of the condition. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Here the Board notes there was indeed an incident of right knee pain noted but no further reports or complications regarding the right knee provided by the Veteran or medical personnel. The Veteran's clinical separation examination was normal regarding the lower extremities and he did not report knees problems on the medical history form completed at separation.

After separation from service, a review of the VA treatment and private treatment record do not show further treatment for a right knee condition until the Veteran filed this claim many years after separation from service. An April 2020 VA knee condition and medical opinion DBQ shows that the Veteran reported right knee pain and arthritis. The VA examiner also noted that the Veteran was assessed with right knee status post ACL repair. The Veteran reported that during active service he slipped and injured his right knee. The Veteran reported he was given knee stabilizers and put on light duty. The Veteran reported that has dealt with right knee pain and popping since separation from service.

A December 2020 VA medical opinion DBQ shows that the VA examiner noted that there was no evidence to indicate that the Veteran continued to suffer from the right knee during service, which would be typical of the condition. The VA examiner noted that during active duty, he slipped on ice and hurt his left knee. The Veteran was treated with physical therapy and MRIs showed degenerative changes which were an expectant progression of a meniscal repair. The examiner noted that imaging (MRI) showed degenerative changes which would be an expected progression of the pre-existing knee surgery. However, the progression was not beyond normal progression for this disorder. No evidence of permanent aggravation beyond normal progression identified. The VA examiner cited to medical literature to support the provided opinion. The VA examiner also cited to additional medical literature that showed the risk of symptomatic knee osteoarthritis after arthroscopic meniscus repair vs partial meniscectomy versus the general population.

After a review of the evidence of record, the Board finds that the evidence shows an increase in service so the presumption of aggravation does attach. In support, after a slipping injury, a relevant service treatment records noted increased numbness and limited range of motion. Further, the April 2011 service treatment record provided an impression that after a fall 3 months ago, the Veteran had a complex multidirectional tear and degeneration of the bod and posterior horn including the root ligament of the medial meniscus. Now, the burden shifts to VA. However, the Board finds that the 2020 VA examination report to be inadequate as it did not address the correct question, based on the legal landscape, of whether there is clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. As such, this is a pre-decisional duty to assist error and a remand is required for correction. 38 C.F.R. § 20.802(a).

These matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination with an appropriate clinician to address the etiology and pathophysiology of the Veteran's claimed neck disability to include arthritis.

Following examination of the Veteran and a review of the Veteran's claims file, the examiner is asked to provide an opinion on the following:

(a.) Whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's cervical spine and/or neck disability is related to an in-service injury, event, or disease, to include in-service duties of carrying heavy fire response equipment.

Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered.
Schedule the Veteran for a VA examination with an appropriate clinician to address the etiology and pathophysiology of the Veteran's claimed neck disability to include arthritis.

Following examination of the Veteran and a review of the Veteran's claims file, the examiner is asked to provide an opinion on the following:

Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

2. Schedule the Veteran for an examination for his psychiatric conditions, to include PTSD and anxiety. The appropriate mental health examiner (licensed psychologist and/or psychiatrist) is to review the claims file to become familiar with the Veteran's relevant medical history.

(a.) Identify all acquired psychiatric disorders during the period on appeal. Note: the December (10th) rating decision made favorable findings that the Veteran has been diagnosed with PTSD and has a conceded stressor due to service in an area of potential hostile military or terrorist.

**The VA examiner is to pay attention to upon the various stressor statements submitted by the Veteran to assist in formulation of the opinion.

(b) Provide an opinion whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the diagnosis PTSD is related to an in-service stressor.

(c) For each non-PTSD mental health diagnosis, provide an opinion whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the diagnosis is related to service.

Inform the examiner that a comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered.

If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).

3. Obtain an opinion from a VA professional with appropriate expertise to determine the nature and etiology of the Veteran's right knee. Note: Only schedule an in-person examination of the Veteran if the clinician determines such is required to be responsive to these remand instructions.

Please review the claims file to become familiar with the Veteran's relevant medical history. After examination of the record, the following inquiry should be addressed:

(a) Was the increase in the Veteran's pre-existing right knee clearly and unmistakably (i.e., undebatable) due to the natural progression of the condition?

A comprehensive rationale for all opinions is to be provided and must not be based on the lack of an in-service record of the claimed disability. All pertinent evidence, including both lay and medical evidence, should be considered.

(Continued on the next page)

Paul Sorisio

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board J. Dworkin

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.

§ 20.1303.

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