BVA9507301 DOCKET NO. 93-13 721 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Arizona Veterans Service Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa F. Marquez, Associate Counsel INTRODUCTION The appellant had active service from July to September 1942. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a September 1992 rating decision of the Phoenix, Arizona Regional Office (hereinafter RO), of the Department of Veterans Affairs (hereinafter VA), which denied entitlement to service connection for a right knee disability. Pursuant to the appellant's request, a personal hearing was conducted in March 1993. In his argument on appeal, the appellant's representative argued that the presumption of soundness should have been considered and adjudicated by the RO. However, he did not assert, nor does the Board infer, that failure to do so constituted clear and unmistakable error. See Fugo v. Brown, 6 Vet.App. 40, 44 (1993). Upon review of the record, it is apparent that while the appellant was provided laws and regulations as well as a discussion pertaining to service connection based upon aggravation of a pre-existing condition, the same was not provided for the presumption of soundness and rebuttal thereof. However, as the representative has demonstrated awareness and consideration of such applicable laws and regulations on appeal, the Board concludes that no prejudice exists with respect to adjudication of such issue at this time. Bernard v. Brown, 4 Vet.App. 384 (1993). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that he is entitled to service connection for a right knee disability. He asserts that his pre-existing right knee disability was aggravated by his wartime service. Alternatively, he argues that he incurred a right knee disability during such service. 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 appellant'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 appellant's claim for entitlement to service connection for a right knee disability. FINDINGS OF FACT 1. All available, relevant evidence necessary for disposition of the appeal has been obtained by the RO. 2. A right knee disability clearly existed prior to active service, but did not increase in severity therein. There is no competent clinical evidence of a current right knee disability attributable to service. 3. The appellant does not have a current right knee disability attributable to his active wartime service, or to any event or occurrence therein. CONCLUSIONS OF LAW 1. Clear and unmistakable evidence has been submitted to rebut the appellant's presumption of soundness. 38 U.S.C.A. §§ 1110, 1111 (West 1991); 38 C.F.R. § 3.304 (1994). 2. A right knee disability was not incurred in or aggravated by the appellant's active wartime service. 38 U.S.C.A. §§ 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.306 (1994) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, we find that the appellant's claim is well grounded within the meaning of 38 U.S.C.A. §5107(a) (West 1991), in that he has presented a claim which is plausible. This being so, we must examine the record to determine whether the VA has a further obligation to assist in the development of facts pertinent to such claims. 38 U.S.C.A. §5107(a) (West 1991). During a March 1993 personal hearing, the appellant testified that after considerable effort, he was unable to obtain any pre- service medical records from Dr. Estes, who was now deceased, and Dr. Stephens pertaining to a right knee injury . The record also contains May 1992 requests for reported medical records from Dr. Estes and Dr. Stephens. While the letter to Dr. Estes was returned due to an insufficient address, the RO has never received any response from Dr. Stephens. No such private records are currently associated with the claims folder. However, as the appellant testified that such records were apparently unavailable, and neither he nor Dr. Stephens has submitted any medical records to date, the Board does not find a necessity to attempt a second time to obtain such records. The Board's duty to assist the appellant is not "a license for a fishing expedition," nor is it a "one-way street." See Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (duty to assist does not extend to determinations of whether "there might be some unspecified information which could possibly support a claim."); Wood v. Derwinski, 1 Vet.App. 190, 193 (1991), reconsideration denied, 1 Vet.App. 406 (1991). Accordingly, it is concluded that the pertinent facts have been developed, and that the duty to assist in developing those facts is completed. 38 U.S.C.A. § 5107. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1994); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Service connection may be granted for a chronic disability resulting from a disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991). If a disorder is not shown to be chronic during service, continuity of symptomatology after service is required to establish that a disorder is chronic. 38 C.F.R. § 3.303 (1994). A veteran who served in a period of war is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304 (1994). See Atkins v. Derwinski, 1 Vet.App. 228 (1991); Kinneman v. Principi, 4 Vet.App. 20 (1993). A pre-existing disease or injury will be considered to have been aggravated by military 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 (West 1991); 38 C.F.R. § 3.306(a) (1994). See Green v. Derwinski, 1 Vet. App. 320, 322-23 (1991). Moreover, in the case of wartime service, clear and unmistakable evidence is required to rebut the presumption of aggravation when the preservice disability underwent an increase in severity during service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(b) (1994). Temporary or intermittent flare-ups of a pre-existing 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). See Browder v. Brown, 5 Vet.App. 268, 271-72 (1993) (citing Hensley v. Brown, 5 Vet.App. 155 (1993)). Upon examination prior to entry into active service in July 1942, a scar on the inside of the appellant upper right knee measuring 3/4 inches was noted. At this time, the appellant did not report a history of a right knee injury, nor were there any complaints, findings or diagnosis of a right knee disability or related symptomatology indicated on such examination report. Service medical records dated in August 1942 indicate the appellant was treated for dislocation of the articular cartilage of the right knee. At that time, he reported a history of a pre- service football injury to the right knee occurring approximately two years earlier which resulted in a cast, braces and several associated aspirations of that knee. He further reported continuing trouble with that knee since that injury. Currently, he reported that while performing routine duty at the Marine Base, he hit soft dirt and reinjured the knee. It was noted that his knee gave way and had locked on him several times. Upon examination, the examiner noted some pain on extension and flexion, but with no swelling. Accompanying x-ray of the knee indicated no fracture or bony pathology. (While the service record specifies x-ray of the left knee, it is presumed that such a notation was a typographical error as all other clinical findings and diagnosis were of the right knee). The examiner diagnosed dislocation of the articular cartilage of the right knee which existed prior to service and was not aggravated therein. Moreover, such examiners opined that the appellant was unfit for duty. As the aforementioned right knee disability, which manifested during service, was not detected on the appellants' entrance examination, a presumption of soundness attached to the appellant at that time. 38 U.S.C.A. §§ 1110, 1111 (West 1991); 38 C.F.R. § 3.304 (1994); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). A subsequent report dated in August 1942 from a Board of Medical Survey indicated that following a review of the appellant's medical records, including a statement signed by the appellant that his right knee disability existed prior to enlistment and was not aggravated by such active service, it was their opinion that the right knee disability existed prior to service, and had not been aggravated by service conditions. They further concluded that the appellant was unfit for duty, and recommended a discharge from active duty. Separation documents indicate the appellant was honorably discharged "upon report of medical survey from disability" in September 1942. The appellant filed an initial application for disability compensation in February 1992. At that time, he reported relevant treatment for a right knee disability from 1942 to 1943 from Dr. J. Stephens, but did provide an address. In a subsequent statement, the appellant stated that he would provide an address for Dr. Stephens, and further indicated that he had received no additional relevant treatment. Subsequently, the appellate submitted signed authorization for release of information forms indicating treatment from 1939 to 1942 from Dr. Estes, Team Physician of Hardin Simmons University, as well as treatment from 1942 to 1943 from Dr. Stephens. In May 1992, the RO attempted to obtain such aforementioned private medical records. However, the letter to Dr. Estes was returned due to an insufficient address. Statements from the appellant dated in June, July, and August 1992 indicated that Dr. Estes was deceased, but an address where such records might be located was not provided. In addition, the appellant requested that copies of his service medical records be sent to Dr. Stephens. The record reflects that copies of such records were mailed to Dr. Stephens by the RO in July 1992, and also by the appellant in August 1992. However, no response from Dr. Stephens has been received to date. During a March 1993 personal hearing, the appellant testified that he suffered a right knee injury while playing collegiate football before entering service, which had completely healed with no residuals prior to entering active duty. He further testified that during service, he re-injured that knee after unloading cement box cars and performing routine marching drills of more than one mile. He stated that at that time, he received inservice treatment consisting of traction of the right leg, and had considerable associated pain as well as a limp. In addition, he testified that at that time, he signed all papers he was requested to sign, without question. Finally, he stated that in his opinion, his right knee was aggravated during service due to the strenuous physical requirements of Marine boot camp. As stated above, the appellant testified that after considerable effort, he had been unable to obtain pre-service medical records from Dr. Estes or Dr. Stephens. Upon review of all the evidence of record, there is simply no evidence to support a finding of service connection for a right knee disability. Initially, the Board finds that the service medical records including the 1942 Medical Board report indicating a pre-existing right knee disability are clear and unmistakable evidence that the appellant incurred a right knee disability prior to entering active duty. While the entrance examination did not indicate a reported previous right knee injury nor were there any objective findings related thereto, a scar on the right knee was noted. Furthermore, the appellant reported such pre-service injury and extensive treatment related thereto and continuing knee problems since in conjunction with necessary inservice medical treatment, and is therefore more credible than his current assertions to the contrary. Finally, both the inservice attending examiners and the medical review board determined that such right knee disability pre-existed service, and there is absolutely no competent credible evidence to the contrary currently of record. Therefore, the Board concludes that such right knee disability pre-existed service. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304 (1994). See Atkins v. Derwinski, 1 Vet.App. 228 (1991); Bagby, 1 Vet.App at 227 (1991); Kinneman v. Principi, 4 Vet.App. 20 (1993). The issue before the Board therefore becomes whether the appellant's pre-existing right knee disability was aggravated during military service. As such, there is absolutely no competent credible evidence of record that the appellant's right knee disability permanently increased in severity during service, or that the appellant currently has such disability. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a) (1994). See Green v. Derwinski, 1 Vet. App. 320, 322-23 (1991); Hunt v. Derwinski, 1 Vet.App. 292, 297 (1991). See also Browder v. Brown, 5 Vet.App. 268, 271-72 (1993) (citing Hensley v. Brown, 5 Vet.App. 155 (1993)). In fact, the only medical evidence of record specifically indicated that such right knee disability, diagnosed as dislocation of the articular cartilage, existed prior to service and was not aggravated therein. Furthermore, the appellant has not presented any competent clinical evidenced that he currently has a right knee disability. See Brammer v. Derwinski, 3 Vet.App. 223 (1992). He has stated that he received no treatment for his right knee since 1943, indicating that the symptoms reported in service improved and that there was no increase in pathological severity of the disability. Although the appellant's statements and sworn testimony are probative of symptomatology, they are not competent or credible evidence of a diagnosis, date of onset, or medical causation of a disability. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-495 (1992); Miller v. Derwinski, 2 Vet.App. 578, 580 (1992). Furthermore, as there is no competent medical evidence of an increase in severity of the appellant's right knee disability during service, the appellant is not entitled to the wartime presumption of aggravation. See 38 C.F.R. § 3.306 (1994). Alternatively, the appellant argues that he did not have a pre- existing right knee disability, and that he incurred a chronic right knee disability following an inservice injury resulting in a medical discharge. As the Board has concluded that clear and unmistakable evidence has been presented to rebut the appellant's wartime presumption of soundness, such argument is futile. Nevertheless, there is absolutely no competent credible postservice evidence demonstrating a current right knee disability attributable to an inservice injury. See Grottveit. 5 Vet.App. at 93; Espiritu, 2 Vet.App. at 494-495 (1992); Miller, 2 Vet.App. at 580; Brammer, 3 Vet.App. 223 (1992). In fact, the appellant has stated that he has not received any relevant medical treatment since 1943, and currently rides a bicycle approximately 15 to 20 miles a day. Therefore, the Board concludes that a pre-existing right knee disability did not increase in severity, and was therefore not aggravated, during military service, nor does the appellant have a current chronic right knee disability attributable to such service. ORDER Service connection for a right knee disability is denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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. 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.