Citation Nr: 1318460 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-06 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right knee disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from January to August 1981 and from July 1982 to February 1984. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2011, the Board reopened a claim for service connection for chondromalacia patella of the right knee and remanded the reopened claim, as well as the claim for TDIU, to the RO to obtain additional private treatment records, Social Security Administration reports, and a VA examination with nexus opinion. The Veteran's claim for TDIU is inextricably intertwined with the claim for service connection for a right knee disability and may only be considered when the development is completed on the claim for service connection for a right knee disability. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 193 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The issue of entitlement to service connection for a back disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 VA law provides that a Veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1132 (West 2002). The presumption of soundness attaches only where there has been an induction examination during which the disability about which the Veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. 38 C.F.R. § 3.304(b) (2012) requires that VA, rather than the claimant, bear the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. See also Cotant v. Principi, 17 Vet. App. 116 (2003). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a), (b) (2012). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service); Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). VA may show a lack of aggravation 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 pre-existing condition. 38 U.S.C.A. § 1153. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991). If VA fails to rebut the section 1111 presumption, the claim is one for service connection, not aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The Veteran's service treatment records reveal that although he reported knee pain prior to service, it was noted in January 1982 that he was able to run five miles a day and pursue full activity without knee pain; the impression in March 1982 was status post mild symptomatic bilateral chondromalacia patella, asymptomatic at present. The Veteran complained of right knee pain in service in July 1983, and recurrent chondromalacia was diagnosed. A December 1983 Medical Board report diagnosed chondromalacia patella of each knee, which existed prior to service and was not aggravated thereby. Chondromalacia patella was diagnosed several times post service, including in August 1984, September 2008, and November 2009. According to an August 2010 opinion from D. R. Cameron, M.D., the Veteran had chronic debilitating knee and back pain as a result of a fall in service, with his symptoms worsening over the previous year and aggravation passing the natural progression of the disorder. Although a VA examination was conducted in August 2011, in response to the Board's June 2011 remand, with an addendum obtained in March 2012, the Board finds this examination and addendum to be insufficient for the Board to provide a reasoned determination on the service connection issue on appeal. The VA examiner diagnosed right knee strain in August 2011 and concluded that the disability was less likely as not caused by or the result of service injury because there was no evidence of chronic disability in service and after active duty; this examiner concluded in March 2012 that the Veteran's right knee was not aggravated by service because the Veteran was seen in service only for a laceration of the right knee after a fall in a submarine and there was no evidence of chronicity and repeated treatments in service for the right knee. The VA examiner's opinion does not adequately address the findings of right knee disability in service and does not discuss Dr. Cameron's opinion in favor of the claim. The Board finds that, because there is medical evidence of preexisting chondromalacia patella of the right knee at service entrance in August 1995, the presumption of soundness on service entrance does not arise. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). However, because the Veteran's preexisting chondromalacia patella of the right knee was essentially asymptomatic at service entrance in July 1982 but did appear to worsen during service, with a diagnosis of chondromalacia patella on the December 1983 Medical Board report, there is a presumption of aggravation under 38 C.F.R. § 3.306 that must be rebutted by clear and unmistakable evidence that the worsening was due to the natural progression of the disease. Therefore, the August 2011 VA opinion which concluded that it was "less likely as not" that the Veteran's preexisting right knee injury was permanently aggravated by service, is an incorrect standard of proof. Consequently, the case must be remanded to obtain a new opinion. The Board notes that the Veteran has contended that he injured his right knee in service in 1982 but that these records are unavailable, being either "sealed, removed, or destroyed," because the injury occurred on a classified nuclear submarine. This appears to be the injury to which the VA examiner and Dr. Cameron have referred; the Board has been unable to find any reference in the Veteran's service treatment records to an injury of the right knee due to a fall while in a submarine. Consequently, additional development is needed prior to Board adjudication of the issues on appeal. Accordingly, the case is REMANDED for the following actions: 1. The VA examiner who evaluated the Veteran in August 2011 and provided an addendum in March 2012 should be asked to review the claims files and provide a new opinion in accordance with the above discussion. If the examiner who evaluated the Veteran in August 2011 is unavailable, the RO will obtain an opinion from another appropriate medical professional. If the reviewer determines that an additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled and the Veteran informed as to the consequences for failure to report for a VA examination without good cause in accordance with 38 C.F.R. § 3.158, 3.655 (2012). However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file, including a copy of this remand, must be made available to the reviewer in conjunction with the requested opinion. The health care provider should indicate whether or not the claims folder was reviewed. Following review of the record, the reviewer is requested to provide an opinion on whether there is clear and unmistakable evidence (obvious and manifest) that the Veteran's preexisting right knee disability was not aggravated by his military service. The reviewer should provide a complete rationale for any opinion provided. The above requested opinion must discuss the relevant evidence of record, to include treatment for the right knee in service and the August 2010 opinion from Dr. Cameron. Aggravation is defined as a permanent worsening beyond the natural progression of the disability. 2. After completion of the above and any other development the RO deems necessary, the RO will review the expanded record and determine if service connection is warranted for a right knee disorder. If, and only if, the RO determines that the Veteran is entitled to service connection for a right knee disorder, he will then be afforded a VA examination to determine the effect of his service connected disabilities on his employment, if the RO cannot determine this question from the evidence of record. If another examination is obtained, the claims folder and a copy of this remand will be made available to the examiner in conjunction with the examination. The examiner must evaluate and discuss the effect of all of the Veteran's service-connected disabilities, both singly and jointly, on his employability. The examiner will opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities, without consideration of his non-service-connected disabilities and without regard to his age, render him unable to secure or follow a substantially gainful occupation. All findings and conclusions need to be supported by a rationale, and the examiner should reconcile the opinion with all other clinical evidence of record. 3. If a new examination is obtained with respect to the issue of employability, the Veteran must be notified that it is his responsibility to report for the scheduled 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. §§ 3.158 , 3.655 (2012). 4. Thereafter, the RO should readjudicate the claims. If any benefit is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).