Citation Nr: 1311372 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 06-11 002A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a right knee disability. 3. Entitlement to service connection for variously diagnosed psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from July 1981 to July 1984. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from February 2005 and August 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Newark, New Jersey and Columbia, South Carolina. Jurisdiction over this case was subsequently transferred to the VARO in Montgomery, Alabama. In February 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In September 2011, the Board remanded the appeal for additional development. The case has since returned to the Board. For the reasons indicated below, there was substantial compliance with the remand directives. See Dyment v. West, 13 Vet. App. 141 (1999). The Virtual VA eFolder has been reviewed. The issue of entitlement to service connection for a right knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran currently has a left knee disability that is related to active military service or events therein; and there is no evidence of left knee arthritis manifested to a compensable degree within one year following discharge from service. 2. The Veteran did not serve in combat; however, his reported stressor related to the processing of bodies in Germany following the bombing of the Marine barracks in Beirut, Lebanon is sufficiently corroborated. 3. Resolving reasonable doubt in the Veteran's favor, evidence of record shows a diagnosis of PTSD related to his in-service stressor. CONCLUSIONS OF LAW 1. A left knee disability was not incurred in or aggravated during service, nor may arthritis be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309(a), (2012). 2. PTSD was incurred during active military service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application form or completeness of the application. By letters dated in August 2004, January 2006, and September 2011, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The Veteran has been notified of how VA assigns disability ratings and effective dates. The claims were most recently readjudicated in the June 2012 supplemental statement of the case. VA has also satisfied its duty to assist. The claims folder contains service treatment records, service personnel records, Social Security Administration (SSA) records, and identified post-service medical records. In September 2011, pursuant to the Board's remand instructions, the AMC asked the Veteran to identify any private treatment records related to his knees, in particular, the records that he referred to during his Board hearing. The Veteran did not respond to this request. Given that the Veteran declined to provide identifying information with regard to the records sought, the AMC was not required to take additional action pursuant to its duty to assist. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street"); 38 C.F.R. §§ 3.159(c)(1)(i) (requiring claimant to cooperate fully with VA's efforts to obtain non-federal records, including providing identifying information). The Veteran was provided VA psychiatric examinations in September 2004 and September 2011; and VA joint examinations in July 2006 and August 2010. In the January 2013 brief, the representative argued that the examinations of record were not adequate. Review of the August 2010 joints examination shows that the claims folder, which includes treatment history and in-service findings, was reviewed. The examiner discussed objective testing and provided an opinion which addressed the currently diagnosed left knee disorder. For the reasons discussed below, the examination and opinion were adequate and the medical evidence adequate to make a determination regarding the claimed left knee disability. With regard to the right knee disability, this issue is being remanded for further opinion. With regard to the psychiatric examinations, the representative argued that based on the most recent examination, it was unclear whether the examiner was unable to diagnose the Veteran with PTSD because VA had not verified the stressor, and that the examiner failed to provide a description of the psychiatric testing. The Board acknowledges the representative's arguments, but in light of the favorable decision to grant service connection for PTSD, additional examination is not warranted. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Laws and Regulations In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. 38 C.F.R. § 3.303(b) applies only to chronic disease as listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection or service-connected aggravation for a present disability the Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection will be presumed for certain chronic diseases, including arthritis and psychoses, if manifest to a compensable degree within one year after discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Additional regulations applicable to PTSD claims will be discussed in further detail below. Analysis Left knee disability In September 2005, the Veteran reported that he was having trouble with his knees due to climbing and jumping in and out of trucks during service. In August 2006, the RO denied entitlement to service connection for a left knee disability. The Veteran disagreed with the decision and subsequently perfected this appeal. Review of service treatment records shows that on enlistment examination in May 1981, the Veteran's lower extremities were normal on clinical evaluation. On April 8, 1983, the Veteran was seen with complaints that both of his knees were aching for one week. There was no history of trauma or running long distance. The knee examination was objectively normal. Family history, however, was suspicious for arthritis and assessment was rule out arthritis. On April 12, 1983, the Veteran was seen with complaints of his right and left knees aching for 8 or 9 days. He was evaluated by a medical doctor who recommended no running, jumping or squatting for one week. In May 1983, the Veteran was seen with complaints of his knees aching for one month. He reported pain above the patella when he does knee bends and that his right knee occasionally gives out. The knee examination showed crepitus with extension of the right knee. He had positive patellar displacement maneuver worse on right. Assessment was congenital dislocation of the patella. He was referred to physical therapy for quadriceps setting exercises and progressive resistance exercises. A separation examination does not appear to be of record. A June 1984 note indicates that he needed an "ETS" waiver. He was given the waiver and referred to the medical officer for signature. Notwithstanding, service records do contain an April 1986 examination (physical for school), which appears to have been conducted in connection with Reserve service, that describes the lower extremities as normal on clinical evaluation. On the report of medical history given contemporaneous to this examination, the Veteran indicated that he did not have and had never had a "trick" or locked knee, arthritis, rheumatism,, or bursitis, bone, joint, or other deformity, or lameness. The Veteran underwent a VA examination in July 2006. At that time, he reported that his knee pain started in 1983 while he was in service. He stated that he jumped off the truck a lot but does not know if he had any trauma or injury to his knee at that time. The pain became worse over time. Following examination, impression was chronic bilateral knee pain likely secondary to strain/sprain in the right knee and mild osteoarthritis in the left knee. X-rays showed a posterior tibial osteophyte in the left knee. In a January 2007 statement, the Veteran reported that he was quite sure that running and exercising in military boots contributed to the pain he has been experiencing for the past 20 plus years. He specifically noted road marches, running, and jumping out of trucks. In his November 2007 VA Form 9, the Veteran stated that he did not experience any type of pain or knee problems before he entered the service. The Veteran most recently underwent a VA joints examination in August 2010. The claims folder was reviewed. He stated that he climbed and jumped out of trucks during service and injured his knees. He described the course since onset as "progressively worse." X-rays of the knees showed the following: (1) left tibial osteochondroma arising posteromedially. No specific radiographic findings suggest malignant degeneration; and (2) no degenerative changes at either knee joint. Diagnosis was left tibial osteochondroma arising posteromedially. The examiner stated that current left knee disorder was less likely as not (less than 50/50 probability) caused by or a result of knee pain. In support of this opinion, the examiner stated that radiographic studies did not support arthritis and there was no support that the Veteran had an osteochondroma while in service. At the February 2011 hearing, the Veteran testified that he started to notice knee problems when he was driving for transportation and slipped off the back of the truck and trailer. He never had any knee problems before he went in the service. He reported continuous knee pain and swelling since the incident. Review of the Virtual VA eFolder shows that VA medical records dated in May 2012 document the Veteran's reports of bilateral knee pain since 1981. Impression was knee pain, chronic. Initially, the Board notes that there is no evidence of left knee arthritis that manifested to a compensable degree within one year following discharge from service and service connection on a presumptive basis as a chronic disease is not warranted. As noted, the Veteran complained of left knee pain during service and apparently attended physical therapy. On review, positive findings, including the diagnosis of congenital patellar displacement, pertained to his right knee. There was no diagnosis of any disease, including arthritis, in service. Moreover, the most contemporaneous evidence, the April 1986 Physical for School examination, indicated that the left knee was normal. There is thus no evidence of any left knee disability in service or a chronic disease of the left knee within the one year presumptive period. The Board must also determine whether any current left knee disorder is related to service. As discussed, the August 2010 VA examiner provided a negative nexus opinion. The examiner's reasoning was not extensive, as she indicated as her rationale that the radiographic studies did not support arthritis and there was no evidence that the Veteran had an osteochondroma (which was diagnosed on the August 2010 examination) in service. However, reading the report as a whole and in the context of the evidence of record, the examiner's opinion indicates that her conclusion of a lack of nexus between current disability and service was based on her review of the relevant information from the claims file and a determination that this evidence did not reflect a nexus between any current disability and service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). There is no contrary medical opinion in the record. The Board must consider the Veteran's own statements indicating a nexus between his current left knee disability and activities during service including running and jumping out of trucks. The Veteran and his representative also indicated that the Veteran experienced left knee symptoms since service and service connection was warranted based on continuity of symptomatology. As noted, the Federal Circuit has clarified that the rules of 38 C.F.R. § 3.303(b) apply only to chronic disease listed in 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). By its terms, 38 C.F.R. § 3.303(b) indicates that a continuity of symptomatology analysis must be performed when a condition that is noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. In this case, as shown above, neither arthritis nor any chronic disease was noted in service or during the presumptive period and the continuity of symptomatology rules of 38 C.F.R. § 3.303(b) would therefore not appear to apply. Assuming that the continuity of symptomatology rules did apply, however, the Board finds that the Veteran's statements in this regard, while competent, are not credible because they conflict with other, more probative evidence of record. Specifically, while the Veteran indicated he experienced left knee symptoms in a since service, he specifically indicated on the April 1986 report of medical history that he did not have and had never had symptoms relating to the left knee, including a trick or locked knee, and examination of the left knee was normal at that time. The Board finds the contemporaneous evidence, in particular statements made by the Veteran in the context of a physical examination to be of greater probative weight than statements made many years later during the course of an appeal of the denial of compensation benefits. See Pond v. West, 12 Vet. App. 341, 345 (1999); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). The Veteran's statements as to continuity of left knee symptomatology are therefore not credible and there is no basis for a finding entitlement to service connection on the basis of continuity of symptomatology. As to the Veteran's statements indicating that his current left knee disability is otherwise related to service, lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's testimony as to a relationship between a current left knee disability and service is testimony as to an internal medical process which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Compare Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007) (lay testimony is competent to establish the presence of varicose veins); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n.4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In any event, even if competent, the Board finds that the probative value of the specific opinion of a trained health care professional in August 2010 is of greater probative weight than the Veteran's general lay assertions. For the foregoing reasons, the preponderance of the evidence is against finding that the Veteran currently has a left knee disability that is related to active military service or events therein. The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. Variously diagnosed psychiatric disability, to include PTSD In February 2005, the RO denied entitlement to service connection for an acquired psychological disorder to include PTSD, schizophrenia and depression. The Veteran disagreed with the decision and subsequently perfected this appeal. Service treatment records do not show any treatment for or a diagnosis of chronic psychiatric disability. Establishing entitlement to service connection for PTSD generally requires: (1) medical evidence diagnosing PTSD in according with 38 C.F.R. § 4.125 (for VA purposes, all mental disorder diagnoses must conform to American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the validity of the averred stressor, the evidence necessary to establish that the claimed stressor actually occurred varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." When the Veteran is found to have engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §§ 3.304(d), (f). If the claimant did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Notably, the regulations governing PTSD were amended, effective July 13, 2010. 75 Fed. Reg. 39843-52 (July 13, 2010). Specifically, this amendment eliminates the requirement for corroborating that the claimed in-service stressor occurred if a claimed stressor is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. Id. Pursuant to regulation, "fear of hostile military or terrorist activity" means that the Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Service records show that the Veteran served during peacetime, to include service in Germany from February 1983 to July 1984 as a heavy vehicle driver assigned to a transportation company. He did not receive any awards or decorations showing combat participation and he does not contend as such. Throughout the appeal, the Veteran has asserted essentially the same noncombat stressor. That is, while he was stationed in Germany, he helped with the bodies of dead Marines that were processed through the Rhein Main Air Base (AB). He states that members of his unit volunteered to assist in response to the terrorist attack on the Marine barracks in Lebanon. In an August 2004 statement, the Veteran reported that ever since that time, he has been unable to clear his mind of the sights. He cries, has sleepless nights, nightmares, and is depressed a lot. The RO made attempts to verify the Veteran's stressor. Response from the Joint Services Records Research Center (JSRRC) indicates that they were unable to locate any unit records submitted by the Veteran's company or higher headquarters that would allow them to document the unit's participation in the stated stressor. A June 2010 memorandum indicates that the evidence was not considered adequate to concede that a stressful event occurred. The Board acknowledges the findings made by the RO. Notwithstanding, the Veteran was stationed in Germany in close proximity to the referenced air base during the relevant time period. Articles contained in the claims folder show that the barracks bombing occurred in October 1983 and that the initial identification of the bodies was at a temporary facility at Rhein Main AB with completion of the final process and final preparation of the remains at the Frankfurt mortuary. The article notes that "[i]nvaluable assistance was provided by approximately 800 volunteers from local commands." The Veteran's reports of transporting bodies are arguably consistent with his duties as a truck driver. Resolving reasonable doubt in the Veteran's favor, the Board finds the reported stressor sufficiently corroborated. Cf. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (corroboration of every detail of a claimed stressor, including personal participation, is not required, and independent evidence that the incident occurred is sufficient). The Board further notes that the September 2011 VA examiner found that the Veteran's reported stressor meets Criterion A and was related to the Veteran's fear of hostile military or terrorist activity. Having determined that the reported stressor is sufficiently corroborated and/or related to hostile military or terrorist activity, the Board must consider whether the Veteran has a confirmed diagnosis of PTSD related to such stressor. SSA records show disability beginning in November 2002 based on a primary diagnosis of schizophrenia, paranoid and other functional psychotic disorders. On examination conducted in March 2003 for SSA purposes, diagnosis was schizoaffective disorder, depressed type. The Veteran underwent a VA examination in September 2004. At that time, he talked about having to transport dead bodies that were brought from Germany. He did not see people actually getting killed. He did not report any post military stressors, but stated that he was affected by seeing the bodies. Subjectively, he reported nightmares, bad dreams, hypervigilance, easy startle reflex, depression, diminished interest, poor energy, poor concentration, poor sleep and hallucinations. Following mental status examination, diagnosis was PTSD. The examiner further noted that the Veteran's symptoms were more consistent with depression than schizophrenia. At the February 2011 hearing, the Veteran testified that he had psychiatric problems starting in 1983. He reported that he was dispatched to the air base to help with the bodies and that he did the detail periodically for about one month. He started feeling depressed in the mid 1990's. The Veteran most recently underwent a VA examination in August 2011. The claims folder was available for review. The Veteran reported that he processed bodies from the Beirut bombing in Germany during 1982, but admitted that records of the process do not exist. The examiner stated that this stressor was adequate to support the diagnosis of PTSD and was related to fear of hostile military or terrorist activity. The examiner stated, however, that the Veteran's symptoms did not meet the diagnostic criteria for PTSD. Current diagnoses were listed as schizophrenia paranoid type (by record; in remission with medication) and depressive disorder not otherwise specified with anxiety. The examiner further commented: Review of the VA record reveals diagnoses of non-service-connected schizophrenia - paranoid type and a non-service-connected mood disorder. The [V]eteran's purported stressor with regard to potential PTSD is not confirmed, because "...there aren't any records" or words to this effect. In addition, results of objective psychological testing the [V]eteran completed during the present interview did not support his symptoms reports. As such, the examiner cannot assert the [V]eteran suffers from PTSD or any other psychiatric disorder that is as likely as not (at least 50/50 probability) caused by or the result of military service. VA medical records shows multiple Axis I diagnoses to include: anxiety (January 2000); panic disorder, rule out major depressive disorder, rule out adjustment disorder (September 2002); schizoaffective disorder (December 2002); dysthymic disorder (February 2005); rule out anxiety disorder, not otherwise specified, history of cocaine abuse and alcohol abuse (March 2005); PTSD (notes vivid memory of preparing Marine bodies to be shipped back home) (November 2005); schizophrenia, and PTSD, noncombat related (July 2007 and November 2008); history of being treated for schizophrenia paranoid type, mood disorder not otherwise specified and PTSD by history (January 2011); and adjustment disorder (May 2012). On review, there is evidence both for and against finding a confirmed diagnosis of PTSD. That is, noncombat PTSD is noted on numerous occasions in the outpatient records and PTSD was also diagnosed by the 2004 VA examiner. The most recent examiner, however, stated that the Veteran did not meet full criteria for the diagnoses. As pointed out by the representative in argument submitted in January 2013, however, it was unclear from the opinion whether the examiner was unable to diagnose the Veteran with PTSD because the VA reportedly had not verified his stressor. On review, the Board does not find any basis upon which to favor one report or diagnosis over the other and the evidence is at least in relative equipoise as to whether the Veteran has a confirmed diagnosis of PTSD related to his in-service stressor. The Board further notes that the Veteran submitted various lay statements from individuals who describe his behavior following service and provide their observations as to how his claimed stressor affected him. Resolving any reasonable doubt in the Veteran's favor, service connection is warranted for PTSD. 38 C.F.R. § 3.102. As set forth, the Veteran's psychiatric complaints have been variously diagnosed. Evidence of record, however, does not show any psychosis manifested to a compensable degree within one year following discharge from service; and the preponderance of the evidence is against finding that an acquired psychiatric disorder, other than PTSD, is related to active military service or events therein. ORDER Service connection for a left knee disability is denied. Service connection for PTSD is granted. REMAND The Veteran contends that service connection is warranted for a right knee disability. As discussed, a right knee disability was not noted on enlistment. However, service records include a diagnosis of congenital dislocation of the patella, which appears to pertain to the right knee. The July 2006 VA examination included an impression of chronic knee pain likely secondary to strain/sprain in the right knee. An etiology opinion was not provided. In August 2006, the RO denied entitlement to service connection for a right knee disability. The Veteran disagreed with the decision and subsequently perfected this appeal. In May 2007, the representative requested consideration of aggravation pursuant to 38 C.F.R. § 3.306(a). The representative specifically noted that the Veteran had mild crepitus in the right knee and that an assessment of right congenital dislocation of the patella was shown. The August 2010 VA examination noted that x-rays did not show any degenerative changes. A diagnosis pertaining to the right knee was not specifically noted. In January 2013, the representative argued that the examinations were inadequate and that aggravation should be considered. Again, the representative pointed out the congenital patellar displacement in the right knee. In addressing this claim, the Board notes that congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c). Rather, a defect of congenital, familial or hereditary origin by its very nature pre-exists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If the defect is congenital, therefore, the presumption of sound condition at service entrance does not attach. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed.Cir.2003) (holding that the presumption of soundness does not apply to congenital defects). If it is determined that a Veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have pre-existed service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). The VA General Counsel's opinion notes that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes in that congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. A congenital or developmental "defect," on the other hand may not be service-connected although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service. Id. Although the Board sincerely regrets the delay imposed by another remand, it finds additional development is needed. See 38 C.F.R. § 3.159(c)(4). Specifically, a VA examination is necessary to determine whether the congenital dislocation of the right patella is a defect or disease and whether there is any evidence of in-service aggravation. Evidence of record suggests that the Veteran receives VA treatment. VA records were last obtained in June 2012. On remand, any additional relevant records should be obtained. See 38 C.F.R. § 3.159(c)(2). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain relevant records from the VA Medical Center in Montgomery, Alabama, for the period from June 2012 to the present. All records obtained should be associated with the claims folder or Virtual VA eFolder. 2. Thereafter, the AMC/RO should schedule the Veteran for a VA examination to address the nature and etiology of any right knee disability, to include consideration of the findings of a congenital condition during service. The claims folder must be available for review by the examiner. Additionally, all relevant medical records must be made available to the examiner for review, either in the Virtual VA eFolder, or if the eFolder is not available, then via paper copies. The examiner is requested to identify any disability of the right knee and to answer the following questions: (a) Is the congenital dislocation of the right patella identified during service a "defect" or "disease"? For VA purposes, a defect differs from a disease in that the former is considered "more or less stationary in nature" while the latter is "capable of improving or deteriorating." (b) If the congenital dislocation of the patella is a defect, is there evidence of superimposed disease or injury of the right knee during service which resulted in additional disability? (Please note the Veteran's lay statements regarding road marches, running, and that he frequently jumped on and off of trucks.) (c) If the congenital dislocation of the right patella is a disease, (i) is there clear and unmistakable (obvious or manifest) evidence that the right patella dislocation pre-existed service? (ii) if so, is there clear and unmistakable (obvious or manifest) evidence that the disease was not aggravated during service? and (iii) if the examiner determines that the congenital dislocation of the right patella did not pre-exist service, it is at least as likely as not (50% or more probability) that the Veteran currently has a right knee disability that is related to active military service or events therein. A complete rationale must be expressed for any opinion provided. 3. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. If the report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 4. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). 5. Upon completion of the above development, and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to service connection for a right knee disability. All applicable laws, regulations, and theories of entitlement should be considered. If the benefits sought on appeal remain denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2012). ______________________________________________ J. HAGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs