Citation Nr: 1757048 Decision Date: 12/11/17 Archive Date: 12/20/17 DOCKET NO. 14-16 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left knee disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from September 1976 to September 1979 and from January 1981 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified at a hearing before the Board in April 2017. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the claim can be reached. The Veteran was afforded a VA examination in September 2012. The examiner diagnosed the Veteran with degenerative joint disease of the left knee status post knee replacement. The examiner opined that the Veteran's left knee disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's rationale was that the Veteran had a significant knee injury prior to service requiring surgery. The examiner indicated that it was noted on the Veteran's entrance examination that the Veteran still had pain over the left knee with heavy use. No significant injury was noted in service that would be anticipated to cause the early onset of arthritis or other knee problems. The examiner concluded that the Veteran's current left knee condition is most likely due to his injury and subsequent surgery prior to service. A veteran who served in the active military, naval, or air service after December 31, 1946, is 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. § 1132 (West 2014). Only those conditions recorded in examination reports can be considered as noted and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b) (2017). Determination of the existence of a pre-existing condition may be supported by contemporaneous evidence, or recorded history in the record, which provides a sufficient factual predicate to support a medical opinion or a later medical opinion based upon statements made by the veteran about the pre-service history of the condition. Miller v. West, 11 Vet. App. 345 (1998); Harris v. West, 203 F.3d. 1347 (Fed. Cir. 2000). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a) (2017). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b) (2017). The Board notes that, "[t]he clear-and-unmistakable-evidence standard is an 'onerous' one ... and requires that the no-aggravation result be 'undebatable.'" Cotant v. Principi, 17 Vet. App. 116. A review of the Veteran's January 1976 entrance examination reveals that clinical evaluation of the lower extremities was normal. The examiner noted that the Veteran had an operative scar of the left knee. The Veteran reported that he underwent a knee surgery on a report of medical history form prepared in conjunction with the entrance examination. The examiner noted that the Veteran still had occasional pain with heavy use of the left knee. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the VA examiner who conducted the September 2012 VA examination, or another qualified medical professional if that examiner is unavailable. The examiner must review the entire claims file and answer the following questions: 1) did the Veteran's claimed left knee disability clearly and unmistakably (obvious and manifest) preexist service, and 2) if so, did the left knee disability clearly and unmistakably (obvious and manifest) not undergo an increase in severity beyond natural progression during either period of service? If any medical profession determines that another VA examination is necessary prior to rendering the requested opinion, another examination should be scheduled. The medical professional is reminded that the "clear and unmistakable" standard is an "onerous" standard and that any opinion rendered must be phrased in that terminology. See Cotant, supra. All opinions must be supported by a complete rationale. 2. Then, readjudicate the issue on appeal. If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then, return the case to the Board. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ KELLI A. KORDICH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 2014), 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) (2017).