Citation Nr: 1454211 Decision Date: 12/09/14 Archive Date: 12/16/14 DOCKET NO. 12-23 806 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service from April 1971 to April 1991. The matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In a January 2014 decision, the Board remanded the issues of entitlement to service connection for a right knee disability and a left knee disability. In a July 2014 rating decision, the Appeals Management Center (AMC) granted service connection for osteoarthritis of the right knee. To date the Veteran has not disagreed with the assigned rating or effective date for this issue. As such, the issue is no longer before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). This case was processed using the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As part of the January 2014 remand, the Veteran was afforded another VA examination in April 2014 to determine the nature and etiology of his left knee disability. The examiner noted that the Veteran's service treatment records revealed a left knee injury in September 1985, which was diagnosed as a left knee strain. The examiner also noted that the Veteran was seen for left knee pain in August 1990 and had positive examination findings. The examiner noted that X-rays revealed an "accessory patella lateral to patella, otherwise, WNL" (within normal limits). The examiner further noted that the accessory patella, also referred to as a bipartite patella was found in both of the Veteran's knees. The examiner concluded that this finding was most likely a congenital finding. The Board notes that diseases (but not defects) of congenital, development or familial (hereditary in) origin may be recognized as service-connected if the evidence as a whole establishes that the familial conditions in question were incurred in or aggravated during service within the meaning of VA regulations. VAOPGCPREC 82-90. In other words, if the evidence as a whole establishes that a disease (but not a defect) of congenital, developmental or familial (hereditary in) origin was first manifested during service, or pre-existed service and progressed at an abnormally high rate during service, then service connection may be granted for such a disease. See, e.g., VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990); VAOPGCPREC 1-90 (March 16, 1990). In turn, defects of congenital, development or familial (hereditary in) origin may not be service-connected, because they are not diseases or injuries under the law. 38 C.F.R. § 3.303(c) (2014). However, many such defects can be subject to superimposed disease or injury. If, during service, superimposed disease or injury does occur, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. In the above context, VAOPGCPREC 82-90 initially points out that the terms "disease" and "defect" do in fact share many common elements and, as such, are often used interchangeably within the medical community. However, the opinion went further in its inquiry to parse out the distinctions in the definitions of those terms for the purposes of VA disability claims adjudication. According to the opinion, a "disease" may be defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs, and whose etiology, pathology, and prognosis may be known or unknown, which is capable of improving or deteriorating. In turn, a "defect" is definable as a structural or inherent abnormality or condition, which is more or less stationary in nature, and not considered capable of improving or deteriorating. VAOPGCPREC 82-90; 55 Fed. Reg. 45711 (1990). Defects of congenital, development, or familial (hereditary in) origin are normally static conditions which are incapable of improvement or deterioration. Id. A disease, on the other hand, even one which is congenital, development, or familial (hereditary in) origin, is usually capable of improvement or deterioration. Id. As such, the terms "defect" and "disease" have very specific meanings within the context of VA disability claims adjudication, with the former denoting a nature of being static and the latter denoting a nature of change. Accordingly, VAOPGCPREC 82-90 and VAOPGCPREC 67-90 make clear that the term "disease" in 38 U.S.C.A. §§ 1110 and 1311, and the term "defect" in 38 C.F.R. § 3.303(c) must be interpreted as being mutually exclusive. In this function, when considering a condition of congenital, development, or familial (hereditary in) origin, close attention must be paid to whether the condition is properly classified as a "disease process" or is simply a "defect or abnormality." In this case, the medical evidence of record does not clearly identify whether the Veteran's left knee accessory patella, or bipartite patella, is a congenital "disease process," or is simply a congenital "defect or abnormality" within the definition of those terms as set forth above. For this reason, the Board finds that a clarification opinion, which takes into consideration the aforementioned distinction between a congenital "disease process" and a congenital "defect or abnormality", is necessary in order to make decision in this case. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the April 2014 examination, or (if unavailable) to another qualified examiner, to determine the nature and etiology of the Veteran's left knee disability. The entire file should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review. All clinical findings must be reported in detail and correlated to a specific diagnosis. For the purposes of this examination, "defects or abnormalities" of congenital, developmental, familial, or hereditary origin are normally static conditions which are incapable of improvement or deterioration. VAOPGCPREC 67-90 (1990). A "disease process" of congenital, developmental, familial, or hereditary origin is usually capable of improvement or deterioration. Id. As such, the terms congenital "defect or abnormality" and congenital "disease process" have very specific meanings, with the former denoting a nature of being static and the latter denoting a nature of change. The examiner is to furnish an opinion with respect to the following questions: a). Is the Veteran's left knee "accessory patella," or "bipartite patella", congenital, developmental, familial, or hereditary in origin? If the answer is "Yes," is the Veteran's left knee "accessory patella," or "bipartite patella," a "disease process," or is it simply a "defect or abnormality?" The examiner is to consider the definitions set forth above, and if deemed warranted may seek guidance from medical text or literature, regarding the proper classification of this condition. b). If the proper classification of the Veteran's left knee accessory patella, or bipartite patella, is a "defect or abnormality" of congenital, developmental, familial, or hereditary origin, did this condition, which was subject to the September 1985 left knee strain, result in any other condition of the left knee? If the answer to this question is "Yes," please specify the diagnosis of the resultant condition. c). If the proper classification of the Veteran's left knee accessory patella, or bipartite patella, is a "disease process" of congenital, developmental, familial, or hereditary origin, the examiner is asked to address the following questions: (i) Did the Veteran's left knee accessory patella or bipartite patella, which was not noted upon entry into service, clearly and unmistakably exist prior to the Veteran's entry into military service? (ii) If the answer to question (i) is "Yes," was the Veteran's left knee accessory patella, or bipartite patella, clearly and unmistakably NOT aggravated (permanently worsened) by service, based on the September 1985 left knee strain during service? If aggravation of this condition is found to exist, does evidence of record clearly and unmistakably show that such permanent worsening of this condition is due to its natural progress? (iii) If the answer to either (i) or (ii) is "No," assume for the purposes of answering the following question that this condition did not exist prior to service. Was the Veteran's left knee accessory patella, or bipartite patella, caused by, or is it the result of, the Veteran's September 1985 left knee strain? The reasons and bases for each opinion are to be fully explained with a complete discussion of the evidence of record and sound medical principles, including the use of any medical literature, which may reasonably explain the medical analysis in the study of this case. 2. After completing the above action, the claims must be readjudicated. If any of the claims remain denied, a supplemental statement of the case should be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal should be returned to the Board for appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2014). _________________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).