Citation Nr: 1332860 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-16 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The appellant's sole period of active service was active duty for training from July 1957 to January 1958, with additional service in the Marine Forces Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for a right knee disorder. This matter was previously before the Board in January 2013 and was remanded for additional development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 After having carefully considered the matter, the Board believes the appellant's claim must be remanded for further procedural development. It is necessary to ensure that there is a complete record upon which to decide the appellant's claim so that he is afforded every possible consideration. To be clear, the Board notes that the presumptions pertaining to chronic diseases, sound condition at entrance into service, and aggravation during service of preexisting injuries do not apply to periods of ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 45-47 (2010). However, the appellant may still establish service connection by proving the three Shedden requirements: "(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 - the so-called 'nexus' requirement." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A claim for aggravation of a preexisting condition during ACDUTRA must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. In his Form 9 appeal, the appellant argued that VA focused on the injury prior to service, but that he "was accepted for enlistment into the USMC and [he] did hurt [his] knee while on active duty." A December 2012 Written Brief Presentation by the American Legion notes that it is the appellant's "contention that his knee condition was caused by, is due to, or was aggravated [by] time he spent on active duty while serving in the United States Marines." A September 2013 Appellate Brief Presentation makes a similar argument, contending both that the appellant did not have a pre-existing condition and the current arthritis was caused by an in-service injury, and that the appellant did have a pre-existing condition that was aggravated by service. At the appellant's August 2013 VA examination, the examiner's opinion stated that the appellant's "right knee arthritis is unlikely to be caused by an injury incurred during a period of active service or ACDUTRA[,] or due to an injury sustained during a period of active duty training." When VA undertakes the effort to provide an examination for an appellant's claim, even when not statutorily obligated to do so, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board finds that this opinion is inadequate, as it does not address the appellant's contention that a pre-existing knee injury was aggravated by service. The record indicates that the appellant had cartilage surgically removed from his knee prior to service. This procedure was noted on the appellant's July 1957 enlistment examination. Additionally, service treatment records indicate that the appellant was treated for a contusion of the right knee after he was struck by a pugil stick in training. The appellant had swelling of the right knee, but did not recall twisting his knee. The treating professional also noted that he believes the appellant had a minimal medial collateral ligament weakness that existed prior to enlistment. X-rays taken at the time revealed Pelligrini's disease of the right knee with an arthritic spur of the posterior surface of the right patella. Due to the actual injury suffered by the appellant in-service, the Board is concerned that the examiner's opinion did not adequately address the possibility of aggravation of a pre-existing knee condition. As a result, a clarifying opinion is required to adequately address the possibility of aggravation due to the appellant's in-service injury. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Return the claims file to the examiner that examined the appellant in August 2013. If that examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. The examiner should conclude whether it is at least as likely as not (50 percent or greater) that the appellant's right knee disorder is related to his military service. In addition, the examiner should determine whether it is at least as likely as not that the appellant's preexisting right knee disorder was aggravated by service beyond its natural progress. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 2. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 3. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL LANE 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).