Citation Nr: 1123865 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 09-02 471 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to service connection for residuals of a broken left toe, to include as secondary to a left knee disorder. ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1980 to September 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The record as it stands is currently inadequate for the purpose of rendering a fully informed decision as to the claims on appeal. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order for VA to fulfill its statutory duty to assist the Veteran to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In a December 2007 Application for Compensation and/or Pension, via a VA Form 21-526, the Veteran reported that he fell from a rope 16 feet high during training and injured his knee. The Veteran contends that service connection is warranted for a left knee disorder due to an in-service injury. Every Veteran shall 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 acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West Supp. 2010). This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. § 3.304(b)(1) (2010); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In cases where the disease or injury at issue is not noted on the entrance examination, a two-pronged test is for consideration in determining whether the presumption of soundness has been rebutted. First, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service. Second, VA must show by clear and unmistakable evidence that the preexisting disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. See Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004); 38 U.S.C.A. § 1153 (West Supp. 2010). Review of the June 1980 entrance examination report revealed the notation of a scar on the Veteran's left knee; however, no abnormalities of the Veteran's left knee was noted. Subsequently, in two July 1980 service treatment records, the Veteran complained of knee pain and the inability to train and stand on his left knee for one day due to such pain. Following an examination of the Veteran's left knee, the examiner noted mild edema, full range of motion, no erythema or crepitus, and the provisional diagnosis was knee condition, existed prior to service. There is no separation examination of record. Upon separation from service, the Veteran's DD Form 214 lists the reason for his separation as the Trainee Discharge Program (TDP) Marginal or nonproductive. Post service treatment records from the Department of Correctional Health Services (DCHS) reflect the Veteran's conflicting reports regarding his left knee disorder. In October 1982, the Veteran's locomotor was assessed as within normal limits and his gait was noted as good, steady, and coordinated from May 1987 to June 1987. In September 1988, he reported his lower extremities as normal. A March 1994 x-ray report showed the left knee as normal, and his extremities were noted as full range of motion, pulses intact and symmetrical, and no evidence of muscle wasting in November 2006. On the other hand, in a March 1992 record, the Veteran complained that an officer shut the cell door on his left knee and that "it just barely hurts." A small red mark to the left knee cap was documented, but there was evidence of active range of motion and no swelling. In August 1994, the Veteran gave a history of sustaining an injury to his left knee when he was in a motorcycle accident in 1979, and was diagnosed with internal derangement of the left knee, most likely a torn medial meniscus. Then in November 2003, torn cartilage in the left knee in a motorcycle accident at the age of 17 was noted under the Veteran's history of trauma. In an undated record, the Veteran reported "some story of pain with his left knee while in the service, that he has discomfort with it from time to time, but denies that it affects his physical functioning in any significant way." In two July 1994 records, the Veteran complained of constant left knee pain, and reported being discharged due to torn cartilage in his knee in a September 2000 record. In April 2008, the Veteran requested medical treatment for his left knee pain which he again reported as injured in service. Then, in May 2008, he noted a history of over 20 years for left knee pain localized at the medial joint line, no recent history of trauma or swelling, and that he injured his left knee while in military service. The Veteran was diagnosed with chronic left knee pain and there was evidence of limited range of motion in the left lower extremity. The Veteran also contends that service connection is warranted for residuals of a broken left toe, to include as secondary to his left knee disorder. In a January 2009 substantive appeal, via a VA Form 9, he asserted that he broke his toe in 1986 because his left knee gave out due to the in-service injury. Post service treatment records from the DCHS reflect the Veteran's complaint of left toe pain and prior trauma to his left toe. In October 2001, the Veteran's left foot was examined pursuant to his complaint of toe pain and the examination revealed evidence of a mild bunion, but no evidence of significant bony changes or significant hallux valgus deformity. And a November 2003 record documents the Veteran's history of trauma, specifically a fracture, of the left second toe. The Board notes that the Veteran is competent to assert that he has experienced symptoms of a left knee disorder during and since his military service, as well as residuals of a broken left toe since separation from service. As such there remains some question as to whether the Veteran's left knee disorder and residuals of a broken left toe are attributable to his active military service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Thus, given the Veteran's personal statements, service treatment records, and post service treatment records from the DCHS, the Board finds that a VA examination is necessary prior to final appellate review for the claims on appeal. See Charles v. Principi, 16 Vet. App. 370 (2002) (Under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination where, the claimant had been diagnosed to have tinnitus, and had proffered competent lay evidence that he had had continuous symptoms of the disorder [i.e., ringing in the ears] since his discharge.). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, this matter is REMANDED for the following actions: 1. Schedule the Veteran for the appropriate VA examination to determine whether the Veteran has a current left knee disorder, and if so, did it originate in, or was aggravated by, his active military service. All efforts made to schedule this examination should be documented and incorporated into the claims file. The claims file must be made available to the examiner for review, and the examination report should reflect that such review has been accomplished. All appropriate testing should be conducted and all diagnoses rendered. The examiner should indicate whether any current left knee disorder existed prior to service. If it is determined that a left knee disability existed prior to service, the examiner is requested to offer an opinion as to whether the evidence is clear and unmistakable that it was not aggravated during, or as a result of, his service. If aggravation is found, the examiner should address whether the permanent increase in severity was due to the normal progression of the disorder, or whether such worsening constituted chronic aggravation of the disorder due to service. (Note: aggravation connotes a permanent worsening above the base level of disability, not merely acute and transitory increases in symptoms or complaints.) If it is determined that the Veteran's left knee disorder did not exist prior to service, the examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) the disability had its origin in service or is in any way related to the Veteran's active service. The examiner should also indicate whether the Veteran has any currently diagnosed left toe disability. If so, the examiner must provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) the current left toe disability had its origin in service or otherwise related to service or is due to or caused by the current left knee disorder. A rationale for any opinion reached must be provided. If the VA examiner concludes that an opinion cannot be offered without engaging in speculation then he/she should indicate this and explain the reason why an opinion would be speculative. 2. Thereafter, the issues on appeal should be readjudicated. If the benefits sought on appeal are not granted, the Veteran should be provided with a supplemental statement of the case (SSOC) and afforded the appropriate time period within which to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims 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. 2010). _________________________________________________ K. J. ALIBRANDO 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) (2010).