Citation Nr: 1336503 Decision Date: 11/08/13 Archive Date: 11/22/13 DOCKET NO. 13-04 004 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel REMAND The appellant served on active military duty from March 16 to June 17, 1971. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The instant appeal must be remanded for additional development. Specifically, outstanding VA treatment records must be obtained before adjudication of the claims, a VA examination detailing the nature and onset of the appellant's left knee disability must also be undertaken and it must also be determined whether the Veteran wishes to have a hearing before the Board. In a December 2012 telephonic contact with VA, the appellant indicated that he was receiving medical treatment relating to his appeal at the VA Medical Center (VAMC) in Columbia, under the care of Dr. T. To date, the latest treatment record from the VAMC in Columbia associated with the claims file is dated in September 2009. Further, no treatment records authored by Dr. T have been associated with the claims file. As such, an attempt to obtain those records must be made prior to adjudication of the appellant's claims. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Further, the appellant maintains that his left knee disability was incurred during his period of active service. Specifically, the appellant contends that he injured his left knee after falling out of a top bunk during his period of active service. See March 2009 statement of the appellant. However, a review of the evidence from the service department suggests that the appellant left knee disability pre-existed his short period of service. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled in 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. History provided by the claimant of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under § 1111 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. A presumption is an assumption of fact resulting from a rule of law that requires such fact to be assumed from another fact found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands - that is, that the Veteran was in sound condition at entry to service as to the disability for which he seeks service connection - must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under § 1111, the Veteran's claim must be considered one for service incurrence or direct service connection. See Wagner v. Principi, 370 F.3d 1089, 1094, 1096 (Fed. Cir. 2004). In this instance, the appellant underwent an entrance medical examination in January 1971. That examination included a clinical evaluation, and no abnormal findings were noted as to the appellant's lower extremities. However, in June 1971, the appellant was discharged from active service, apparently on the basis of an erroneous enlistment. Relying on service treatment records dated in May 1971, a medical board determined that the appellant had a small osteochondroma that pre-dated his entrance into active service. As discussed above, the appellant disagrees with that conclusion and contends that his left knee condition was caused by or aggravated by a fall from a top bunk during his period of active service. See March 2009 Statement of the Veteran. VA's duty to assist includes affording the claimant an examination or obtaining a medical opinion when there is competent evidence that a claimant has a current disability, or persistent or recurrent symptoms of a disability; there are indications that the disability may be associated with active service; and the record is insufficient to decide the claim. See 38 U.S.C.A. § 5103A (d) (West 2002). Under relevant VA regulations, action should be undertaken by way of obtaining a medical opinion if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but: 1) contains competent evidence of diagnosed disability or symptoms of disability; 2) establishes that the appellant suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, which may be established by competent lay evidence; and 3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c) (4) (2012). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong of Section 3.159(c) (4), which requires that the evidence of record "indicate" that the claimed disability or symptoms may be associated with service, is a low threshold. In this instance, there is insufficient medical evidence to resolve whether the appellant's current knee condition is related to a knee disability that may have pre-existed service, whether any current left knee disability is related to what the appellant experienced in service, and whether there was any aggravation of a pre-existing disability of the left knee. The appellant has presented recurrent symptoms of a left knee disability, as evidenced by various treatment records indicating complaints of left knee pain. He has explained that, while in service, he fell from a top bunk and injured his left knee. See March 2009 statement of the appellant. That statement has not been rebutted by any other evidence within the claims file. Finally, the appellant's service treatment records, as discussed above, show complaints of knee pain during his period of active service. This evidence indicates that the present complaints of knee discomfort may be associated with an in-service incurrence of some knee injury or that the appellant's current discomfort may be the product of an in-service aggravation of a pre-existing left knee disability. As such, a VA examination addressing the nature and onset of the appellant's current left knee disability is required. See 38 C.F.R. § 3.159(c) (4) (2012); McLendon, 20 Vet. App. 79 (2006). Lastly, as the matter is being remanded for further development, the appellant's desire to have a hearing should be ascertained. The Board notes that the appellant personally submitted a VA Form 9 in response to the RO's September 2009 rating decision. On that VA Form 9, the appellant indicated that he wanted a hearing before a member of the Board at the St. Louis RO. However, in a January 2013 VA Form 9 submitted by the appellant's representative, it was noted that the appellant did not want a hearing before a member of the Board. This is curious because the representative completed the form as though he was the appellant, but signed in block 13 as the representative. As such, clarification of the appellant's desire to have a hearing is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA medical records, including those records authored by Dr. T. at the Columbia VAMC, and associate them with the Veteran's claims file or the Virtual VA claims file. All efforts to obtain these records must be documented in the file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. Inform the Veteran of the unavailability of any records. Obtain all service personnel records in order to ascertain the basis for the appellant's separation from service-whether it was an erroneous enlistment or a medical discharge. 2. Thereafter, schedule the appellant for a VA examination for the purpose of ascertaining the nature and onset of any left knee disability he may have. The claims folder and a copy of this remand must be provided to the examiner and reviewed as part of the examination. The examiner is requested to provide an opinion as to whether the Veteran had a left knee disability that existed prior to the Veteran's period of active service, as noted in the June 1971 findings of the medical board. Based on the examination and review of the record, the examiner is requested to answer the following questions: (a) Does the evidence of record clearly and unmistakably (undebatably) show that the Veteran had a left knee disability that existed prior to entry into active service? (b) If so, does the evidence of record clearly and unmistakably (undebatably) show that the pre-existing left knee disability did not undergo a worsening during service? (c) Is it at least as likely as not that any currently diagnosed left knee disability had its onset in service? (Specifically cite to the evidence relied on to support the answers given to the questions above.) The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the appellant's recitation of events and symptoms, the medical reasons for the examiner's determination must be set forth in detail. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. 3. The AOJ must ensure that all requested actions have been accomplished in compliance with this remand. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 4. Contact the appellant and his representative to determine whether a hearing is desired and, if so, what type of hearing is desired. Then, schedule any hearing consistent with the appellant's wishes. The AOJ should also readjudicate the appeal. If any benefit sought remains denied, both the appellant and his representative should be furnished a supplemental statement of the case. The appellant and his representative should be given the opportunity to respond before the case is returned to the Board. 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 case 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. 2013). ________________________________ MARK F. HALSEY 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).