Citation Nr: 1330055 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-09 486 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from July 25, 1969, to September 4, 1969. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The issues of entitlement to service connection for a heart condition, a left arm disability, residuals of a neck injury, and arthritis have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are 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 Reasons for Remand: To attempt to obtain additional VA treatment records; medical records from the Social Security Administration (SSA); and service personnel records, including the DD Form 214; and to request another VA medical opinion. VA treatment records: In a statement received in August 2011, the Veteran contended he injured his left knee during his training at boot camp in Fort Bliss, Texas. He stated that doctors told him that he needed surgery on his knee, but that he was sent to San Antonio and received physical therapy on his knee. He indicated that he did not have the surgery on his knee and that he was told at the Audie Murphy VAMC that he did not need surgery. In another statement received in January 2012, the Veteran indicated that "x-rays from 1970-72 were lost in fire [and divorce]" and he again wrote "Audie L. Murphy [VAMC]", perhaps meaning that he was treated at that facility in early 1970s. On his March 2012 notice of disagreement, he indicated that he went to "San Antonio Audie Murphy" 30 days after coming home from service. On an August 2012 VA examination report, the examiner noted that the Veteran reported that he injured his left knee in service in 1969 when he fell off a rope at Fort Bliss. Given the above information from the Veteran, the AMC/RO must: * Attempt to obtain VA treatment records from the Audie L. Murphy Memorial VAMC, San Antonio, for the period from September 1969 through December 1972. SSA records, if any: On the Veteran's application form, received in June 2011, he indicated that he had either claimed or was in receipt of disability benefits from the SSA. On remand, the RO must: * Attempt to obtain treatment records, if any, from the SSA that may pertain to a left knee disability. Service personnel records: The claims file includes a DD Form 214 with a separation date which appears to have been altered, i.e., the typewritten year of separation appears to have been whited out and "70" written in by hand. Moreover, this date differs from the year of separation of "1969" verified with the service department by the RO. The Veteran alleged in his NOD and VA Form 9 that his date of discharge is "wrong" and that there is "confusion on the dates". On remand, the RO should: * Attempt to obtain the Veteran's complete personnel file, including a valid copy of his DD Form 214, if possible, from the National Personnel Records Center (NPRC) or other appropriate repository of records. A new VA medical opinion needed: On an August 2012 VA examination report, the examiner checked a box indicating that the "claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness." The rationale for this opinion included the examiner's conclusions (1) that the "induction physical stated that he had the left knee problem prior to service as unfit for service"; (2) that "[the Veteran] failed to report on exam 17 April 1969 left knee problems yet attempted to enter service with severe left knee problems"; and (3) that a current left knee disorder, left knee symptoms, and "direct injuries" to the left knee existed prior to service." (Emphasis added.) Although the examiner was requested to provide an opinion about whether "left knee condition symptoms in active duty [were] aggravated beyond the normal progression during the 40 days on active duty", the examiner did not fill out the portion of the report on aggravation, nor did he provide any opinion on aggravation of a pre-existing condition. Consequently, because this opinion is based on inaccurate facts, as shown below about statement #2, and because it is incomplete, the opinion is inadequate. Concerning this, the Board notes that the service treatment records reflect that there were no complaints or findings pertaining to the left knee on an April 1969 Pre-Induction examination report. Specifically, on the Report of Medical History, the Veteran checked "no" for having, or having ever had, "a 'trick' or locked knee", and on the Report of Medical Examination, the examiner indicated that clinical evaluation of the lower extremities was normal. However, the typewritten word "Pre-Induc[tion]" was crossed off on these reports, and "Ind[uction]" was hand-written above it, indicating that the same report was used at the time of actual entrance onto active duty a few months later in July 1969. On the second page of the Report of Medical Examination is a stamp indicating that the Veteran underwent a "Physical Inspection" on July 24, 1969, one day before entering onto active duty. The stamp indicated that "[n]o additional defects" were discovered and that the Veteran was found fit for military service. However, below the stamp, a handwritten note stated, "X-ray knee-OK [within normal limits]." Dated the same day, July 24, 1969, is an x-ray report pertaining to the left knee which reflects a clinical history of "knee injury-[rule out] fracture." The x-ray findings were "left knee-no significant abnormality." The Report of Medical Examination shows that the Veteran was found qualified for induction, and he entered onto active duty the next day, July 25, 1969. Thus, the additions to the "Pre-Induction" report made at the time of actual Induction in July 1969 indicate that-unlike the August 2012 VA examiner's conclusion that the Veteran "attempted to enter service with severe left knee problems"--it appears that the Veteran informed examiners about a left knee injury because the examiners noted a "knee injury" and sent him for an x-rayof the left knee to "[rule out] fracture." In addition, the service treatment records show that six days later, on July 31, 1969, the Veteran was seen with a history of his left knee having been hurt in a rodeo in 1969, although it is not clear whether this injury occurred between the April 1969 Pre-Induction Examination and the July 1969 "Physical Inspection" or at some point earlier in 1969. X-rays and an orthopedic consult were ordered. An x-ray report dated the same day showed "no bone pathology." The orthopedic consultation conducted the next day, August 1, 1969, showed that the Veteran reported that he injured his left knee at a rodeo one year earlier and then "just a couple of months ago." Findings on examination included synovia; one-inch of quadriceps atrophy; no instability; and tenderness of the medial joint line. The diagnosis was "IDK (internal derangement, knee), left knee, most likely a torn medial meniscus." The examiner noted, "[t]his man is unfit for induction and enlistment in his present condition" and concluded that the left knee condition existed prior to service and did not occur in the line of duty. An August 5, 1969, separation examination contains a diagnosis of "internal derangement, left knee, most likely a torn medial meniscus." It was noted that the Veteran "did not meet procurement medical fitness standards at time of entry on active duty." The separation examination report and a Clinical Record Cover Sheet, dated in September 1969, showed that the knee condition was the reason for the Veteran's separation from service. The law provides that 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; 38 C.F.R. § 3.304(b). Before the presumption of soundness is for application, there must be evidence that a disease or injury that was not noted upon entry to service manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F.3d 1089 (Fed.Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable". Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261-263 (Nebeker, C.J., concurring in part and dissenting in part). Assuming that there is clear and unmistakable evidence that a left knee injury pre-existed service, the next question in order to rebut the presumption of soundness is whether there is clear and unmistakable evidence that such an injury was not aggravated during service. Clear and unmistakable evidence that the disease or injury was not aggravated by service 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. Wagner, 370 F.3d at 1096 (Fed.Cir. 2004); 38 C.F.R. § 3.304(b) (2012). In cases where the presumption of soundness cannot be rebutted, the claim for service connection must be adjudicated on a direct service incurrence basis. In other words, adjudicators must determine whether the current disability was "incurred" in service rather than whether it was "aggravated" during service. See Wagner, 370 F.3d at 1094-1096 (Fed.Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain VA treatment records from the Audie L. Murphy Memorial VAMC, San Antonio, for the period from September 1969 through December 1972. 2. Attempt to obtain treatment records, if any, from the SSA that may pertain to a left knee disability. 3. Attempt to obtain the Veteran's complete personnel file, including a valid copy of his DD Form 214, if possible, from the NPRC or any other appropriate repository of records. 4. Obtain VA treatment records pertaining to the left knee from Audie Murphy and Kerrville VAMCs from December 2011 to present and associate them with the electronic file that is accessible to the Board (Virtual VA). 5. If VA concludes, after continued efforts to obtain Federal records, such as the VA and SSA records noted in paragraphs 1-4 above, that they do not exist or that further efforts to obtain them would be futile, provide the Veteran with notice of that fact. 38 C.F.R. § 3.159(e). 6. Schedule the Veteran for a VA examination by an examiner other than the examiner who conducted the DBQ examination in August 2012 who is able to answer the questions below which follow a brief summary of some of the evidence in this case: Summary: The Veteran was given a Pre-Induction Examination in April 1969 on which there were no complaints or findings of a left knee condition. The same examination report was used for a Physical Inspection at the time of Induction a few months later on July 24, 1969, at which time there is a clinical history of a left knee injury. The Veteran was sent for an x-ray to rule out a fracture on the same day; no significant abnormality was shown on x-ray, and he was accepted for enrollment and entered onto active duty the next day, July 25, 1969. Six days later, on July 31, 1969, the Veteran was seen with left knee complaints. X-rays and an orthopedic consult were ordered. An x-ray report dated the same day showed no bone pathology. The orthopedic consultation conducted the next day, August 1, 1969, showed that the Veteran reported that he injured his left knee at a rodeo one year earlier and then "just a couple of months ago." Findings on examination included synovia; one-inch of quadriceps atrophy; no instability; and tenderness of the medial joint line. The diagnosis was "internal derangement, left knee, most likely a torn medial meniscus," and the Veteran was discharged from service in September 1969 because of this knee condition. Recent diagnoses pertaining to the left knee include "left knee, stable joint, degenerative arthritis" (August 2012 C&P Joints DBQ report) and "minimal degenerative changes of the knees" (May 2011 VA Imaging Study). Question # 1: Assuming that the Veteran sustained an injury or injuries to the left knee before entering onto active duty in July 1969, is it clear, certain, and undebatable that the pre-existing injury to the left knee was NOT aggravated during active duty? (Temporary or intermittent flare-ups of symptoms of a preexisting condition alone do not constitute aggravation unless the underlying condition worsened.) If your opinion is that it is clear, certain, and undebatable that a pre-existing left knee condition was NOT aggravated, please provide a reason for your opinion, pointing to the evidence in the record and/or providing medical information about the condition itself which led you to the conclusion that the pre-existing left injury was clearly NOT aggravated during active duty. Question #1a: If it is your opinion that a pre-existing left knee condition was aggravated during active duty, is it as least as likely that a current left knee disorder (to include degenerative arthritis of the left knee) is the result of the aggravation to the left knee condition in service as it is the result of any other cause or factor? If your opinion is that it is MORE likely that the current left knee disorder is the result of some cause or factor other than the aggravation of the left knee condition in service, please provide a reason for your opinion by pointing to evidence in the record and/or providing medical information about the condition itself that has persuaded you that the current left knee condition is MORE likely the result of a cause or factor other than aggravation of the left knee injury during active duty. Question # 2: Assuming for the sake of this question (and despite the evidence to the contrary in the record) that there was NO evidence in this case of a pre-existing left knee injury or left knee condition and that instead the Veteran first sustained an injury to the left knee during active duty which was diagnosed as "internal derangement, left knee, most likely a torn medial meniscus," is it as least as likely that a current left knee disorder (to include degenerative arthritis of the left knee) is the result of the knee condition shown in service as it is the result of any other cause or factor? If your opinion is that it is MORE likely that the current left knee disorder is the result of some cause or factor other than the left knee condition shown in service, please provide a reason for your opinion by pointing to evidence in the record and/or providing medical information about the condition itself that has persuaded you that the current left knee condition is MORE likely the result of a cause or factor other than the left knee injury sustained during active duty. If the examiner is unable to provide the opinions requested above without resorting to speculation, the examiner must provide an explanation for the basis of that determination. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). 6. Thereafter, readjudicate the claim. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The claim should be returned to the Board as warranted. 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). 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). _________________________________________________ KATHLEEN K. GALLAGHER 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) (2012).