Citation Nr: 1333467 Decision Date: 10/24/13 Archive Date: 10/24/13 DOCKET NO. 10-25 419 ) 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 disorder. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for bilateral pes planus (claimed as disorder of the ankles and feet). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The appellant served on active duty from April 1976 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a left knee disorder, a right knee disorder, and bilateral pes planus (claimed as disorder of the ankles and feet). The appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of that hearing is of record and associated with the claims folder. 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 appellant claims that service connection for a disorder of the left knee, right knee, and pes planus is warranted based on service incurrence. He maintains that although he ran into a pole and hit his left knee at age 14, he did not sustain an injury and he subsequently played high school and college basketball without any complaints. Upon service entrance, his examination showed no findings related to his left or right knee. He was noted to have mild pes planus of both feet, not considered disabling. He relates that he injured his left knee after jumping off a two story platform in service, and his right knee, which was not as severe, became more severe when he was forced to use it more because of the level of pain he endured of the right knee. His knees, and ankles were noted to be popping and he was released from service as unfit due to his knees and pes planus. He also asserts in the alternative, that he had a preexisting left knee disorder, which was aggravated during his active service. The Board notes that when no preexisting medical condition is noted upon entry into service, an appellant is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Accordingly, "[o]nce the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexisting and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness ... the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). This burden must be met by affirmative evidence demonstrating that there was no aggravation. See Id. The burden is not met by finding that the record contains insufficient evidence of aggravation. See Id. In this regard, it is not clear from the evidence of record as to whether the appellant's left and/or right knee disorder preexisted service, or that any increase in the appellant's preexisting pes planus (claimed as ankles and feet) was due to the natural progress of the disease. Additionally, in the alternative, it is not clear whether the right knee disorder was alternatively due to or aggravated by the appellant's left knee disorder. See 38 C.F.R. § 3.310. The appellant was not offered VA examinations in connection with this claim. The Board acknowledges that the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, a VA examination and opinion is necessary prior to final adjudication of the claim. Further, the appellant testified at Travel Board hearing in November 2011, that he was seen and treated at the Third Street Hospital for his bilateral knee and feet complaints approximately 2 months after his service discharge. No attempt has been made to obtain those records on behalf of the instant claim. The appellant should provide the name and address of the facility and an appropriate attempt should be made to obtain those records. Accordingly, the case is REMANDED for the following action: 1. The appellant should provide the appropriate name and address of the hospital where he sought treatment for his bilateral knees and pes planus (claimed as ankles and feet) immediately after service. After obtaining the necessary release of information from the appellant, AMC/RO should seek any 1976 treatment records from that facility referring to the appellant's knees and feet and if located, associate those medical records with the claims folder. If those records cannot be located, any negative response should be included in the claims file. 2. Schedule a VA orthopedic examination to determine the nature, severity, and etiology of any current bilateral knee and pes planus the appellant may have. All indicated testing and studies should be made. The examiner should specifically address the following questions: (a) whether the disability (left knee) clearly and unmistakably (i.e., obvious or manifest) preexisted service; (b) whether the disability (knees pes planus) increased in severity during the appellant's active service; (c) if so, whether there is clear and unmistakable evidence that the disability was not aggravated (i.e., permanently worsened) beyond the natural progression during or as a result of service; (d) if not, whether it is at least likely as not (a 50 percent probability or greater) the disability (left and right knee) had its onset in service or is otherwise medically related to the Veteran's service. (e) alternatively, whether it is at least as likely as not (a 50 percent probability or greater) that the left knee caused or aggravated his claimed right knee disorder. If it is determined that his right knee disorder is not caused by the aforementioned left knee disorder, but that aggravation beyond the natural progression of the right knee disorder exists based on his left knee disorder, the examiner should be asked to identify the baseline level of severity of the symptoms prior to aggravation and the current level of severity of symptoms due to aggravation. The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. Supporting rationale must be provided with all requested opinions. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of all the evidence. If the benefit sought on appeal is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable 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). _________________________________________________ F. JUDGE FLOWERS 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).