BVA9505194 DOCKET NO. 92-18 187 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for bilateral knee disability. ATTORNEY FOR THE BOARD Lori J. Wells-Green, Associate Counsel INTRODUCTION The veteran served on active duty from July 1990 to March 1991. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In June 1993 the Board remanded the case for further development. Thereafter, the veteran's claims file was transferred to the RO in Phoenix, Arizona, as the veteran had up and moved to Arizona. The requested development has been completed and the case has been returned to the Board for further appellate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that, while he experienced minor pain in his right knee in 1984, he had no problems with either of his knees in the seven years preceding his enlistment in the service. After his entry into the service, he began to experience pain in his right knee and later developed pain in his left knee. He asserts that his bilateral knee disability was incurred during service. With respect to the right knee, he argues in the alternative that service connection is warranted on the basis of aggravation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for service connection for bilateral knee disability. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's bilateral knee disability clearly and unmistakably preexisted service. 3. The veteran's bilateral knee disability did not clinically intensify during service. CONCLUSION OF LAW The veteran's pre-existing bilateral knee disability was not aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 1132, 1153, 5107 (West 1991); 38 C.F.R. § 3.306(b) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has found that the veteran's claim for service connection for bilateral knee disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed with respect to this issue and that no further assistance to the veteran is required to comply with the duty to assist mandated by statute. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131. Furthermore, every veteran should be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before service. 38 U.S.C.A. § 1132. To ascertain whether service connection may be established for a disability, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The veteran's history portion of his November 1989 service induction medical examination shows no complaints of injury, disease or treatment concerning his knees. Unfortunately, a report of the actual physical examination is not of record. The veteran's service medical records show that he first complained of bilateral knee pain of three weeks duration in August 1990. At that time he indicated that he had had knee pain before entering the service while playing football. He complained of pain when running. The examiner noted that the veteran was in acute pain and treated with Motrin. His service medical records show that the veteran continued to complain of and was treated for bilateral knee pain. A Medical Board report completed in February 1991 shows that veteran was evaluated by a United States Navy hospital orthopedic department and diagnosed as having bilateral patellofemoral syndrome. The report shows that the veteran complained of bilateral knee pain, but with greater pain in the right knee. He was unable to run or squat and had increased pain when he walked further than 1/4 mile or when he used stairs. The report further reflects that the veteran had injured his knees as a result of trauma incurred while playing high school football. The veteran had been placed on light duty since August 1990 with no running, prolonged walking or marching. He had had several months of physiotherapy and anti-inflammatory medication without improvement. Beyond pain, the objective findings were essentially normal, except for some crepitus on the right. X- rays were said to be normal, and it was indicated that an MRI was suspicious for a partial anterior cruciate ligament tear on the right side. The veteran's final diagnoses were bilateral patellofemoral syndrome and partial anterior cruciate ligament tear of the right knee. The Medical Board found that both diagnosed disabilities existed prior to enlistment and had not been aggravated by the veteran's service. The Medical Board recommended that the veteran be separated from service due to his physical disability. In March 1991, the veteran was involuntarily separated from service due to a physical disability existing prior to his entry into service. The Board notes that the case was remanded in June 1993 to afford the veteran an orthopedic examination. Subsequently, the RO scheduled an examination and notified the veteran. However, the veteran failed to report to the VA orthopedic examination that was scheduled. He also failed to respond to the RO's request that he identify preservice and postservice clinical providers. Although the Board must assist a veteran who has submitted evidence of a well-grounded claim, this duty to assist is not always a one-way street, and a veteran may not passively wait for assistance in those situations in which he may or should have information that is necessary in the development of his claim. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). In light of the veteran's failure to cooperate with the Board's efforts to assist him with the factual development of his claim, no further effort will be expended to assist him in that regard. The claim must be evaluated on the evidence of record. Because the veteran's preinduction examination report is not of record and the November 1989 history portion thereof was negative, the veteran is entitled to a presumption of soundness at entry. However, the presumption may be rebutted by clear and unmistakable evidence that the disease or injury pre-existed service. The service medical records reflect that the veteran provided data for treatment purposes to the effect that he had suffered football injury to both knees during high school. This history, repeated for treatment purposes while in service, must be given significant probative weight and clearly and unmistakably establishes that the veteran's bilateral knee disability existed prior to service. Further, the history given in service was freely given by the veteran at a time when he would have been highly motivated to accurately report past clinical events. The Board finds that the presumption of soundness is rebutted. A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). Proceeding, as we must, on the current record, there is no basis for conceding aggravation of any preservice knee disability to service. The veteran began to complain of knee pain about a month after service began, and he was immediately profiled so that he engaged in no further strenuous activities. No service trauma is shown. Medical Board objective findings were essentially normal, and there is no documentation of a need for post-service care. All of this argues against aggravation during service. As the preponderance of the evidence is against the veteran's claim, service connection for bilateral knee disability is not warranted. ORDER Service connection for bilateral knee disability is denied. J. J. SCHULE 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 of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals 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 of Veterans' Appeals.