Note: Pursuant to 38 U.S.C. § 4067(d) (1988),

this decision will become the decision of the

Court thirty days from the date hereof.

**UNITED STATES COURT OF VETERANS APPEALS**

No. 90-543

[William F. Hunt, Jr., Appellant,]{.smallcaps}

[v]{.smallcaps}.

[Edward J. Derwinski,]{.smallcaps}

[Secretary Of Veterans Affairs, Appellee]{.smallcaps}.

On Appeal from the Board of Veterans\' Appeals

(Submitted February 8, 1991Decided June 5, 1991)

*Jean M. Hunt* (non-attorney) was on the brief for appellant.

*Raoul L. Carroll,* General Counsel, *Barry M. Tapp,* Assistant General
Counsel, *Andrew J. Mullen,* Deputy Assistant General Counsel, and
*Deborah W. Singleton* were on the brief for appellee.

Before NEBEKER, *Chief Judge*, and HOLDAWAY and IVERS, *Associate
Judges.*

HOLDAWAY, *Associate Judge*: Entitlement to service connection for
aggravation of a right knee disability was denied by the Veterans\'
Administration (now Department of Veterans Affairs) (VA) in October
1954, in February 1978, and in June 1989. On March 2, 1990, after
conducting a review of the entire record of the case, the Board of
Veterans\' Appeals (BVA) determined that the preexisting right knee
condition was not aggravated in service. Appellant, William F. Hunt,
Jr., appeals the decision of the BVA.

The BVA denied service connection based upon aggravation of the injury
in service because it found that \"the status of the knee \[up\]on entry
into the service was comparable with its status at the time of
separation from service.\" *William F. Hunt, Jr.*, loc. no. 007992, at 6
(BVA Mar. 2, 1990). The BVA concluded that because there was no increase
in the severity of the knee injury during service, service connection
based upon aggravation in service was not warranted under 38 U.S.C. §
353 (1988). *Id*.

The issue before this Court involves both a question of fact and a
question of law. Whether the BVA\'s finding, that appellant\'s knee
injury did not worsen in service, is erroneous, involves a question of
fact. Whether the BVA correctly applied 38 U.S.C. § 353 and 38 C.F.R. §
3.306(a) (1990) (which define aggravation for compensation purposes) to
those findings involves a question of law. We hold that the factual
findings of the BVA as to the condition of the knee upon entry into
service and upon separation are plausible in light of the record viewed
in its entirety and are not clearly erroneous. We also hold that the BVA
did not err in applying the definition of \"aggravation in service\"
under 38 U.S.C. § 353 and 38 C.F.R. § 3.306(a) to the facts of the case.
Therefore, the Court affirms the decision of the BVA.

**Background**

Appellant served in the U.S. Army from July 22, 1952, to July 13, 1954,
with wartime duty in Korea. One month prior to his induction into the
service, appellant injured his right knee while at work as a
carpenter\'s apprentice. He was hospitalized for one week and placed in
traction. On appellant\'s induction exam report, dated July 22, 1952, a
\"trick\" right knee was noted. The report also stated there was \"No
evidence of quadriceps atrophy or instability of ligaments. Some
voluntary tension to movements.\"

Appellant\'s service records show he was hospitalized for knee problems
soon after entry into the Army. He was treated again in October 1952,
for knee discomfort and a click upon walking. An internal derangement of
the right knee, with possible torn cartilage was diagnosed at that time.
Appellant was placed on a light duty profile for eight weeks.

In November 1952, he was reevaluated at the U.S. Army Hospital
Outpatient Service,

Fort Dix, New Jersey. Internal derangement and possible torn cartilage
was again noted, however, these defects were considered temporary by the
medical officers. In February 1953, appellant was treated at Camp Drake
Dispensary. Subsequent to this treatment, he was seen on four other
occasions in 1953 for a painful and swollen right knee or for orthopedic
evaluation. The orthopedic evaluations, which can be summarized, noted
frequent swelling and locking of the right knee, but no effusion,
atrophy or instability. The joint spaces were clear, no bony pathology
was seen, and weight loss was recommended. A \"normal profile\" for the
knee was given by his examiners.

Appellant\'s discharge exam of July 12, 1954, revealed he was treated in
1954 as an outpatient in a Korean Evacuation Army Hospital for a
\"trick\" right knee. In addition, the discharge exam report noted
possible derangement of the knee, and that appellant was still
\"bothered with \[a\] trick right knee.\" The report further stated
there were \"\[n\]o serious injuries, operations or diseases EPTE\"
(existing prior to entry); it also reveals, by comparison with his entry
exam, that appellant had gained weight during service.

On July 22, 1954, appellant filed a claim with the VA for entitlement to
service connection for the \"trick\" right knee. In that claim,
appellant noted three occasions in which he had been treated for knee
problems while in service: at Fort Dix and twice in Korea. The VA
requested information from the Army, including service medical records,
for these particular locations. No additional medical records were
found. In August 1954, the VA conducted a medical exam of appellant\'s
right knee pursuant to the claim.

The VA exam found the knee to be clinically normal. The examiner heard
no crepitation at the knee, nor was any felt on motion; no quadriceps or
calf atrophy was noted. The radiographic report revealed \"segmentation
of the tuberculum tibiae as a result of old, healed osteochondritis . .
. . Bone and joint structures otherwise are within normal limits.\" The
VA denied his claim on October 14, 1954, finding that the knee condition
pre-existed service: \"In the absence of a superimposed injury or
sufficient knee pathology over and above the degree existing at time of
induction, service connection either by direct occurrence or aggravation
is not established.\"

Twenty-four years later appellant reopened his claim submitting in
support private medical records which showed treatment for
chondromalacia (abnormal softness of cartilage) of the knee in 1977. The
record reveals appellant underwent surgery on the knee in December 1978;
it is, however, unclear whether those surgical and hospitalization
records were before the VA when it rendered its decision. The rating
decision, dated January 2, 1979, denied service connection, stating that
the evidence did not show the knee injury was \"actually aggravated by
service\": \"The first VA exam failed to indicate any evidence of a
chronic knee condition. The medical evidence covering the past year does
not support the contention that the veteran\'s knee injury was
aggravated by service.\" The VA also noted that chondromalacia was
diagnosed in the initial 1952 injury, based upon records dating from
1952 received by the VA pursuant to the 1978 claim; however, those
documents are not in the record before this Court. The prior rating
decision of October 14, 1954, denying service connection was upheld.

In May 1989, appellant once again reopened his claim. The evidence
considered by the VA included private medical records dated December
1978, showing surgery for a torn medial meniscus of the right knee. The
VA also considered a letter from appellant\'s physician to a life
insurance company dated July 1979. In that letter, the physician stated
that appellant \"should seek employment not requiring climbing ladders
or working on scaffolding. I think this will be an indefinite
restriction unless he loses a great deal of weight.\" On the surgical
records his physician indicated that appellant sought treatment for knee
pain which \"developed after he had done a great deal of activity going
up and down scaffolding as part of his work.\" On his claim form dated
May 1, 1989, appellant indicated a history of \"chondromalacia
(patellafemoral) 1952 and succeeding through current date\" and noted
that \"Social Security awarded total and permanent disability \[in\]
January, 1986.\" His claim was again denied. At a hearing held on
September 26, 1989, appellant maintained that he was not placed on light
duty upon his return to the unit as prescribed by his in-service
physicians. Instead, he was required by his commanding officers to
participate in long marches and perform all his regular duties. This,
appellant asserts, was the cause of his purported in-service
aggravation.

The resulting decision of the hearing officer continued the denial of
appellant\'s claim on the grounds that, although he had been treated for
the knee condition while in service, the overall evidence did not show
aggravation in service. The hearing officer noted the fact that there
was injury to the knee prior to service and no evidence of a new injury
to the knee in service.

Appellant appealed the denial to the BVA, which denied his claim because
it found the knee condition was the same upon entry as upon separation
from service and thus was not aggravated in service. *William F. Hunt,
Jr.,* loc. no. 007992, at 6.

**Analysis**

**I.**

This Court is directed to review factual determinations by the BVA under
the \"clearly erroneous\" standard of 38 U.S.C. § 4061(a)(4) (1988). In
*Gilbert v. Derwinski*, U.S. Vet. App. No. 89-53, slip op. at 5 (Oct.
12, 1990), the Court stated that it is not the function of this Court
\"to decide whether a veteran was injured or whether any such injury
occurred in or was aggravated during military service.\" Rather, the
Court must determine whether a factual determination of the BVA is clear
error. *Id*. A finding is clearly erroneous when \"although there is
evidence to support it, the reviewing court on the entire evidence is
left with the definite and firm conviction that a mistake has been
committed.\" *Gilbert*, slip op. at 4 (quoting *United States v. United
States Gypsum Co.*, 333 U.S. 364, 395 (1948)). Furthermore, \"\[i\]f the
district court\'s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it .
. . .\" *Gilbert*, slip op. at 4 (quoting *United States v. Yellow Cab
Co.*, 338 U.S. 338, 342 (1949)).

In this case, the BVA found that although the right knee was
\"intermittently symptomatic with activity during service,\" the knee
condition did not increase in severity during service. *William F. Hunt,
Jr*., loc no. 007992, at 6. Although several in-service diagnoses noted
pain and swelling, possible torn cartilage, an unstable right knee and
possible internal derangement, those defects were considered temporary
by appellant\'s medical officers. Upon separation, no permanent injury
was noted, only \"a trick right knee\"\--the same injury appellant
claimed upon entry into service. The record reveals no serious injuries
or accidents involving the knee, nor any permanent damage, during
service. In fact, the record is clear that several in-service medical
officers had noted essentially a normal knee with only temporary defects
during service. It is also notable that after leaving the Army, and in
the twenty-four years between filing his first claim and his second
claim, appellant was able to hold a job in the construction industry
installing ceiling lighting. His position required frequent climbing up
and down scaffolding or ladders. After a review of the entire evidence
of record, this Court concludes that the BVA findings were plausible.

**II.**

The second issue which we must address is whether the BVA correctly
applied the law, 38 U.S.C. § 353 and 38 C.F.R. § 3.306(a), to its
findings of fact. Those provisions define \"aggravation in service\" for
purposes of awarding compensation under 38 U.S.C. §310 (1988).

The BVA found that temporary flare-ups of the knee condition were
insufficient to be considered \"aggravation in service\" under 38 U.S.C.
§ 353. The task before the Court is to determine, in effect, whether
temporary \"flare-ups\" not resulting in overall worsening of
appellant\'s condition during service constitutes \"aggravated in
service.\"

38 U.S.C. § 353 defines \"aggravation in service\" by stating: \"A
preexisting injury or disease will be considered to have been aggravated
by active . . . 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.\"
(Emphasis added). The regulation is identical in its wording. *See* 38
C.F.R. § 3.306(a).

As a preliminary point, we note that clear and convincing evidence is
required to rebut the presumption of aggravation in service where the
pre-service disability *underwent an increase in severity* during
wartime service. 38 C.F.R. § 3.306(b) (1990). *See Akins v. Derwinski*,
U.S. Vet. App. No. 89-115, slip op. at 6 (Apr. 23, 1991). However,
because the knee *condition* did not undergo an increase in severity, we
find that appellant is not entitled to the presumption. *Id*. While
there was temporary worsening of *symptoms*, the condition itself, which
lent itself to flare-ups, did not worsen. In short, the disability
remained unaffected by these flare-ups.

As the Supreme Court has \"repeatedly noted, \'the starting point for
interpreting a statute is the language of the statute itself.\'\"
*Hallstrom v. Tillamook County*, 439 U.S. 20 (1989) (quoting *Consumer
Product Safety Comm\'n v. GTE Sylvania, Inc*., 447 U.S. 102, 108
(1980)). From an examination of the language of the statute, and in view
of the overall statutory and regulatory scheme, it is clear that
aggravation in service is based upon a worsening of the pre-service
condition to the extent that a veteran\'s average earnings capacity has
been diminished.

Title 38 of the United States Code, section 353, states that an injury
will be considered aggravated in service when there is an \"increase in
disability.\" The term, \"disability\", as contemplated by the VA
regulations, means \"impairment in earning capacity resulting from such
diseases and injuries and their residual conditions . . . .\" 38 C.F.R.
§4.1 (1990). This definition comports with the everyday understanding of
the term, \"disability,\" which is defined in *Webster\'s Ninth New
Collegiate Dictionary* 359 (9th ed. 1990), as an \"inability to pursue
an occupation because of physical or mental impairment.\"

Such a definition of \"disability\" follows the overall statutory and
regulatory purpose of the veterans compensation law. This purpose is
reflected in the ratings system, which rates different mental and
physical maladies based upon diminished earning capacity. The United
States pays compensation to veterans when they have, in honorable
service to their nation, suffered a loss that is reflected in the
decreased ability to earn a living for themselves and their families.
Title 38 of the Code of Federal Regulations, section 4.1 states:

> This rating schedule is primarily a guide in the evaluation of
> disability resulting from all types of diseases and injuries
> encountered as a result of or incident to military service. The
> percentage ratings represent as far as can practicably be determined
> the average impairment in earning capacity resulting from such
> diseases and injuries and their residual conditions in civil
> occupations. Generally, the degrees of disability specified are
> considered adequate to compensate for considerable loss of working
> time from exacerbations or illnesses proportionate to the severity of
> the several grades of disability.

Hence, although \"disability\" is not defined by the statute for
compensation purposes, the regulatory definition adopted is a reasonable
one.

Appellant contends that the intermittent flare-ups during service of the
knee condition are sufficient to be considered aggravation in service.
Appellant argues that the knee did not have an opportunity to heal and
was severely aggravated because appellant\'s commanding officers
required him to perform all his normal duties despite the light duty
profile indicated by the medical officers. Because of his treatment in
service, appellant contends he was rendered unable to continue in his
civilian occupation, as reflected in the physician\'s statement of July
1979, that he should seek work not involving climbing up and down
scaffolding. Appellant also argues that his \"trick\" knee was
aggravated by his overweight condition in service, which the Army
medical officers helped worsen by not assisting him to reduce weight.

The Court rejects these arguments. First, as we have noted above, there
simply was no evidence showing the knee condition worsened during
service relative to the pre-service injury. The BVA\'s plausible finding
as to this issue is dispositive for the reasons noted, *supra*. Second,
appellant worked climbing ladders and scaffolding for twenty-five years,
notwithstanding his overweight condition, in the same industry in which
he was employed prior to service.

Given the plain meaning of 38 U.S.C. § 353, and the purposes of the
veterans disability laws, we hold that 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.

The BVA was not clearly erroneous in its finding that the knee condition
did not worsen in service, and also did not err in applying the
provisions of 38 U.S.C. § 353 and 38 C.F.R. § 3.306(a). Therefore, we
AFFIRM the decision of the BVA.