Citation Nr: 1304288 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 08-20 406 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. ATTORNEY FOR THE BOARD M. Harrigan Smith, Counsel INTRODUCTION The appellant served on active military duty from September 22, 1992 to November 25, 1992. These issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied claims for service connection for: left thigh quadriceps strain (claimed as left leg injury); tension headaches; patellofemoral arthralgia of the left and right knees (claimed as pain in both knees); neck pain; and middle to lower back pain. In March 2010, the Board remanded these issues to the agency of original jurisdiction (AOJ) for further development. In March 2012, the Board denied entitlement to service connection for left quadriceps strain, tension headaches, and disabilities exhibited by neck, mid-back and lower-back pain. In addition, the Board again remanded to the AOJ the issues of entitlement to service connection for left and right knee disabilities for additional development 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 Board remanded this case in March 2012 for an opinion regarding the Veteran's claimed left and right knee disabilities. Specifically, the Board found that service treatment records reflect treatment for patellofemoral arthralgia (knee pain), which, on its own, is not considered a disability. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In addition, the Board noted that an August 2010 VA examination addendum reflected the examiner's opinion that the appellant's patellofemoral disease was not likely caused by or a result of service because an in-service examination in 1992 concluded that his patellofemoral disease pre-existed his active duty service. The Board notes here that there was no evidence of pre-existing left or right knee disorders. VA law states that a veteran is presumed sound upon entry into service unless a condition is noted on the entrance examination. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). In this case, the May 1992 entrance examination for the appellant does not note any knee disability. As a result, the appellant is presumed sound upon entry into his service unless VA can rebut the presumption of soundness. Id. This would be done by showing: by clear and unmistakable evidence the chondromalacia of the knees (or any knee disability) pre-existed service and by clear and unmistakable evidence either that (1) the condition did not increase in severity in service or that (2) any increase in severity was due to the natural progression of the disease. 38 C.F.R. § 3.304(b). The Board instructed the AOJ to obtain an opinion as to whether any chronic left or right knee disability had its onset prior to service or increased in severity in service. In addition, the Board requested that the examiner opine whether any current knee disability (chondromalacia) is otherwise related to active duty. In an April 2012 opinion, a VA examiner opined that the Veteran's left and right knee disorders were less likely as not caused by or related to the single episode of injury during his military service. While the examiner noted that there was no documented pre-enlistment history of injury or abnormal findings in his legs, he did not provide any opinion regarding whether there was clear and unmistakable evidence that the Veteran's knee disabilities preexisted service, or whether there was clear and unmistakable evidence that any left or right knee disorder was not aggravated while on active duty. In addition, while the examiner found that the Veteran's x-rays taken in 2010 revealed normal knees, he did not specifically discuss the Veteran's diagnosis of chondromalacia of both knees. Finally, in his rationale, the examiner noted that there was no documentation of treatment that since service; however, he did not discuss the Veteran's contentions of ongoing symptoms since service, provided at the time of his May 2010 VA examination. As such, this case must be remanded for adherence to the Board's instructions included in the March 2012 remand as the opinion is not wholly adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one); Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following actions: 1. Provide the claims file to an appropriate examiner for review and to provide an addendum opinion. The examiner should review the claims file, including this remand. The examiner should opine as to: (a) whether it is at least as likely as not (50 percent probability or more) that any current knee disability (including chondromalacia) is related to active duty; (b) whether the Veteran exhibited an acquired knee disability in service-i.e., whether the patellofemoral arthralgia (knee pain) represented the presence of an acquired knee disability, and if so, did it involve the right knee also (complaints were limited to the left lower extremity). If so, (c) whether there is clear and unmistakable evidence that a knee disability pre-existed entrance into service and (e) whether there is clear and unmistakable evidence that the disease did not increase in severity during service beyond the natural progression of the disease. The examiner should identify the clear and unmistakable evidence in giving an opinion. The examiner should consider the lay statements provided by the Veteran. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. Thereafter, re-adjudicate the claims of service connection for a right and left knee disability. If the decision remains in any way adverse to the appellant, provide him with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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 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. 2012). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2012).