Citation Nr: 1620691 Decision Date: 05/20/16 Archive Date: 05/27/16 DOCKET NO. 10-40 208 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to nonservice-connected pension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had active military service from March 1975 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran appeared and testified at a Board video-conference hearing held before the undersigned Veterans Law Judge in March 2016. A copy of the transcript of this hearing has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks service connection for a left knee disorder on the basis that he was medically discharged from the Army because of his knee. The RO has denied service connection on the basis that the Veteran's left knee disorder pre-existed service and was not aggravated by service. At the March 2016 Board hearing, the Veteran essentially testified that, while on active duty, he injured his knee and, thereafter, it became so problematic that they put him on profile and then medically discharged him. The Veteran testified that he did not have a problem with his knee prior to entering service. Alternatively, his representative argued that, the records show he did have a problem prior to service but that the records show that it increased due to his rigorous training. Finally, the Veteran testified that, after service, his knee pain never stopped and has continued since then. A veteran is presumed to have been sound upon entry and then the burden falls on the government to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) a veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. Id. In the present case, the Veteran underwent an enlistment examination in February 1975. The report of that examination shows no abnormalities of the lower extremities were noted. Consequently, the Board finds that the presumption of soundness attaches and the burden shifts to VA to rebut the presumption. The Board further finds the evidence does not clearly and unmistakably establish that the Veteran's left knee pain noted during service pre-existed service and was not aggravated during service as the service treatment records merely contain reports by the Veteran of having knee pain prior to service and the treatment records demonstrate a worsening in his knee pain due to the rigors of basic combat training. Hence the Board finds that the presumption of soundness is not rebutted and the Veteran's claim for service connection should be adjudicated on a direct basis rather than on an aggravation basis. In looking at the Veteran's claim on a direct service connection basis, the evidence establishes he was treated for knee pain in service, which was initially diagnosed as chondromalacia. In addition, VA treatment records show the onset of treatment in July 2010 for left knee pain and swelling with a report of a history of injury (torn ligaments and tendons) to the knee 20 years before with a diagnosis of tricompartmental osteoarthritis. That would appear to indicate an injury may years after service. Furthermore, at the March 2016 Board hearing, the Veteran testified to a continuity of symptomatology since service. This evidence is sufficient to trigger VA's duty to assist in obtaining a VA examination and medical opinion. See 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Furthermore, as evidence indicates that the Veteran may have had treatment for his left knee due to an injury in approximately 1990, these treatment records may be relevant to the Veteran's claim but it is unclear whether these are VA or private treatment records. On remand, the Veteran should be asked to identify the medical care provider who treated him, and to provide a release if they are non-VA records, so that VA may try to obtain these records. Finally, as to the Veteran's claim for entitlement to nonservice-connected pension, he contends that he is not subject to the 90-day requirement because he was medically discharged due to his knees. In other words, his claim is that he has a service-connected disability. To date, he has not been adjudged to have a service-connected disability. However, as his claim for service connection for a left knee disorder is still pending, the claim for nonservice-connected pension is inextricably intertwined with that claim and must be remanded pending the outcome of the service connection claim. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify the medical care provider(s) who treated him for a left knee injury in or around 1990, whether VA or private. Any VA treatment records identified should be obtained. After securing the necessary release, take all appropriate action to obtain these records. 2. After all additional available evidence has been obtained, schedule the Veteran for an appropriate VA examination to determine the current nature and likely etiology of any left knee disability. The claims file must be provided to and reviewed by the examiner. After reviewing the claims file and examining the Veteran, the examiner should render an opinion as to whether it is at least as likely as not (i.e., at least a 50 percent probability) that the Veteran's current left knee disorder is related to any disease or injury incurred during service. The examiner should specifically address whether there was any intervening injury and the effects, if any, of such injury on the Veteran's current left knee disorder compared to effect of the signs and symptoms seen in the service treatment records. In rendering an opinion, the examiner should also consider the Veteran's statements as to a continuity of symptoms. The examiner should provide a complete explanation for all opinions. If the examiner cannot provide an opinion without resorting to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Thereafter, the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his representative. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). _________________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).