BVA9507996 DOCKET NO. 92-07 854 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The veteran had active military service from November 1982 to April 1983. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a January 1991 rating decision of the Seattle, Washington Regional Office (hereinafter "the RO") which denied service connection for a right knee disorder. In January 1993, the Board remanded the veteran's claim to the RO for additional development of the record. The veteran has been represented throughout this appeal by the Disabled American Veterans. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in denying service connection for a right knee disorder as he sustained a significant right knee injury during his period of active military service which ultimately necessitated his medical discharge from the Army. He contends that he fell over ten feet from the top of a utility pole in February 1983 while undergoing advanced training and currently suffers from a chronic right knee disorder as a result of that trauma. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that the preponderance of the evidence is against the claim for service connection for right knee disability. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. Degenerative osteoarthritis of the right knee was not manifested during service or within one year of separation form service. Arthritis is not attributable to service. 3. The inservice right knee contusion was acute, transitory and resolved without disability. 4. The evidence of record clearly shows that right knee instability existed prior to service. 5. The right knee instability symptoms described in the service medical records represent continuing manifestations of the preservice disorder and do not establish an increase in severity in the basis preexisting disability. CONCLUSIONS OF LAW 1. Degenerative osteoarthritis of the right knee was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1994). 2. Right knee instability clearly and unmistakably preexisted service, and the presumption of soundness is rebutted. U.S.C.A. §§ 1111, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.303(d), 3.304(b) (1994). 3. The preexisting right knee instability was not aggravated during service. U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (hereinafter "VA") has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible and that all relevant facts have been properly developed. Accordingly, an additional remand in order to allow for further development of the record is not necessary. The veteran asserts that he initially manifested a chronic right knee disorder during active military service. Service connection may be granted for a chronic disability arising from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). A veteran who served during peacetime service after December 31, 1946 is presumed to be 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. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. §§ 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (1994). 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) (1994). At the veteran's September 1982 physical examination for service entrance, the examiner noted no right knee abnormalities. A February 17, 1983 Army treatment record indicates that the veteran complained of right knee weakness and an inability to lock the knee. He related that he had fallen ten feet from a pole on February 16, 1983 and "reinjured" his right knee. A history of chronic knee pain was noted. Treating medical personnel observed a full range of motion of the right knee with mild crepitus; some medial joint line tenderness; stable ligaments; good muscle strength and no effusion. An impression of a right knee contusion was advanced. A February 24, 1983 treatment entry conveys that the veteran complained of a throbbing pain under the right patella and right knee weakness. He reported that he had experienced right knee complaints prior to entering active military service including "giving out" and buckling of the knee with a sensation of lateral movement of the patella. He clarified that his pre-service complaints were aggravated by the requirements of military training. Treating medical personnel observed that the veteran exhibited a full range of motion of the right knee with discomfort at full flexion and mild crepitus; a positive Perkin's test; stable ligaments; and no effusion. A March 1983 Army orthopedic evaluation diagnosed the veteran as suffering from chronic instability of the right knee. Contemporaneous X-ray studies of the right knee revealed no abnormalities. An April 1983 Army Entrance Physical Standards Board report indicates that the veteran related that: he experienced right knee problems including giving way of knee since he was fourteen or fifteen; his knee gave out once during basic training; and his February 1983 fall from a pole was caused by his right knee giving out while he was climbing. The Board diagnosed the veteran as suffering from chronic instability of the right knee which rendered him unfit for continued active duty. It was the decision of the medical officer that the veteran should be separated from the service for a condition that existed prior to service. At the July 1991 hearing before a VA hearing officer, the veteran testified that he sustained a right knee injury during active military service when he fell from a pole and currently experiences occasional right knee pain, swelling and locking associated with activity. He stated that although he experienced "kinking" of the right knee during high school, he was able to perform prolonged marching and other physical activities required of a drummer in his high school marching band. At the December 1991 hearing on appeal, the veteran testified that his right knee is painful and occasionally becomes stiff and swells. He recalled that he first began to have significant right knee complaints during the preceding three years. At a September 1993 VA examination for compensation purposes, the veteran complained of an occasional dull aching pain in the anteromedial aspect of the right knee and infrequent episodes of "buckling backwards" of the knee. On examination, the veteran exhibited a range of motion of the right knee from 0 to 150 degrees; very mild genu varum of the knee; good medial and lateral joint stability; and no retropatellar crepitus, joint line tenderness or other abnormalities. An impression of possible chondromalacia patella of the right knee by history was advanced. A contemporaneous X-ray study of the right knee shows very mild degenerative osteoarthritis. A January 1994 addendum to the September 1993 VA examination report clarifies that the veteran suffers from mild osteoarthritis of the right knee. The examiner commented that: It cannot be stated that, on a more probable than not basis, the mild degenerative changes present by X-ray of his right knee can be attributed to the injury sustained in 1983 when he fell from the pole while on active duty. (emphasis added). The Board has weighed the probative evidence of record including the veteran's testimony and argument on appeal. The report of the September 1982 physical examination for enlistment does not note that the veteran exhibited degenerative osteoarthritis or any other right knee abnormality. Given this fact, the veteran is entitled to the presumption of soundness as to the claimed disorder. 38 U.S.C.A. §§ 1111, 1137 (West 1991); 38 C.F.R. § 3.304(b) (1994). It is therefore necessary to determine whether the presumption is rebutted by clear and unmistakable evidence establishing that the veteran's current right knee disability was manifested prior to service. See Crowe v. Brown, No. 93-550 (U.S. Vet. App. Dec. 20, 1994). The Board observes that the clinical documentation does show that the veteran reported to treating Army medical personnel that he had experienced right knee complaints while an adolescent. However, the veteran has clarified on appeal that his pre-service right knee complaints were not significant enough to have prevented him from performing strenuous physical activities. The record is devoid of any clinical documentation showing diagnosis of or treatment for a right knee disorder prior to service. However, the inservice statements were contemporaneous with inservice treatment. We presume that the veteran was seeking proper medical care and that such statements are usually truthful. In addition, the veteran's comments were statements against interest. On balance, the veteran's inservice statements are considered to be very probative as to the origin of the disability and competent. See Doran v. Brown, 6 Vet.App. 283, 286 (1994). The Board further concludes that the inservice statements are more probative than the veteran's remote testimony entered in conjunction with a claim for monetary benefits. We also note that an inservice medical professional concluded that the veteran should be separated from service for a condition that had preexisted service. The examiner was present at the time and was competent to enter such opinion. Based upon the record before the Board, we conclude, as a matter of law, that the presumption of soundness was rebutted by clear and unmistakable evidence consisting of appellant's own admissions during clinical evaluations of a preservice history of knee problems and the inservice opinions of a medical professional. Doran v. Brown, 6 Vet.App. 283, 286 (1994). The next issue is whether there was an increase in severity (aggravation) during service. Although there is clear and unmistakable evidence that the right knee instability preexisted service, there is no indication that there was an increase in severity during service. The medical evidence establishes that there had been numerous instances of the knee giving out prior to service. The fact that the knee may have given out on one occasion during service merely establishes that the veteran continued to exhibit manifestations characteristic of the preservice disability rather than an increase in severity. The mere fact that veteran was asymptomatic at time of entry is not controlling. The baseline against the BVA measures any worsening of appellant's disability is the appellant's disability as shown in all his medical records, not on the happenstance of whether he was symptom-free when he enlisted. Green v. Derwinski, 1 Vet.App. 320, 323 (1991). Also supporting the conclusion that there was no increase in severity is the fact that the veteran's ligaments remained stable during service and that there was no service department finding that there had been an increase in severity. Lastly, there is no post service medical evidence that the knee instability is currently more severe than the preservice episodes. Because there was no increase in severity during service, there was no aggravation and no presumption of aggravation. During service the veteran did sustain a contusion, a superimposed trauma. However, there is no evidence that the contusion resulted in disability. Since service, the evidence has established that the veteran has arthritis in the knee. But, arthritis was not manifest during service or within 1 year of separation from service. Furthermore, competent medical authority has not attributed the remote onset of arthritis to the veteran's period of service or any incident of service. The opinion of the VA examiner, in 1994, is competent, constitutes negative evidence, and has not been rebutted by other competent authority. The veteran, as a layman, is not competent to enter a diagnosis or establish the etiology of the arthritis. The Board concludes that the preponderance of the evidence is against the claim. Clear and unmistakable evidence establishes that right knee instability preexisted service. The preponderance of the evidence establishes that there was no increase in severity of instability during service; and that the arthritis is not attributable to service. There is no doubt to be resolved and service connection is not warranted. ORDER Service connection for right knee disability is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the Court within 120 days from the date of mailing of notice of the decision, provided that a notice of disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board.