Citation Nr: 1802185 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-07 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Costello, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1966 to December 1967. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In March 2014, the Veteran requested a travel Board hearing. A hearing was scheduled for October 20, 2016. On October 5, 2016, the RO sent to the Veteran and his representative notice regarding the time, date, and location of the scheduled hearing. The Veteran did not appear for the scheduled hearing. Neither the Veteran nor his representatives have indicated a desire for a rescheduled hearing and neither has provided any cause for failure to attend the scheduled hearing. The Board may proceed to consider the merits. 38 C.F.R. § 20.704 (d). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets additional delay in the adjudication of this claim, a remand is necessary for further development to ensure that there is a complete record upon which to decide the Veteran's claim. The Veteran is seeking entitlement to service connection for a right knee disability. Specifically, stating he fell during service and injured his right knee. At the time of the service entrance examination, every veteran shall be 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 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. § 1111 (2014). Only such conditions as are recorded in examination reports are considered as "noted." 38 C.F.R. § 3.304 (b) (2017). When determining whether a defect, infirmity, or disorder is "noted" at entrance into service, supporting medical evidence is needed. Crowe v. Brown, 7 Vet. App. 238 (1994). The Veteran's November 1965 entrance examination report is silent regarding the presence or history of right knee complaints/injuries/diseases. When the Veteran is presumed sound at entrance, the burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Even when there is clear and unmistakable evidence of preexistence, the Veteran need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Rather, the burden is on VA to establish by clear and unmistakable evidence that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress" of the preexisting condition. See id. Clear and unmistakable evidence means evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting Vanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The Veteran's service treatment records reflect in August 1966 he reported falling on his left knee 48 hours ago and currently had a swollen and tender knee. The record further notes the Veteran had a history of Osgood-Schlatter disease. A subsequent August 1966 record states x-rays revealed bilateral Osgood-Schlatter disease. The Veteran was afforded a VA examination in July 2012. The examiner diagnosed the Veteran with degenerative joint disease and Osgood-Schlatter's disease and opined that it was less likely than not that his current disability was related to service, noting his service treatment records revealed a note that he had fallen on his left knee and x-rays indicated bilateral Osgood-Schlatter; however, there "is no link between the osgood schlatter's found incidentally in the right knee during the service and the current degenerative changes found in the right knee." A February 2014 VA medical opinion concurred with the July 2012 VA examiner and noted the Veteran almost certainly had Osgood-Schlatter upon entering service because this condition occurs almost exclusively as a teenager, while playing sports. Also, it was not a condition that causes life-long pain or disability. The Veteran's degenerative joint disease "is almost certainly an age-related change and is NOT related to his Osgood Schlatter's disease." When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). As a history of Osgood-Schlatter and diagnosis of bilateral Osgood-Schlatter was noted in service treatment records, and the February 2014 VA examiner found the Veteran almost certainly had Osgood-Schlatter's disease upon entering service, a new VA examination is necessary to determine the etiology of any currently diagnosed right knee disability to include whether Osgood-Schlatter's disease had its origin in service or pre-existed service and was aggravated therein. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to submit, or authorize VA to obtain, all pertinent medical records from any VA or private facility where he has been seen for right knee treatment since his separation from service in 1967. If the Veteran provides the requisite authorization, make reasonable attempts to obtain any such records. Such attempts should include a follow-up request if such records from the facility during this time frame are not received, or a finding that a follow-up request would be futile, pursuant to 38 C.F.R. § 3.159(c)(1) , as well as requisite notice to the appellant under 38 C.F.R. 3.159(e)(1) that VA was unable to obtain such records. 2. Only AFTER obtaining as many of the medical records as the Veteran identifies, to the extent they are available, schedule a VA examination to evaluate the Veteran's claimed right knee disability. After reviewing the Veteran's claims file including service treatment records, lay statements and the VA medical opinions, as well as a complete copy of this remand, the examiner must answer the following inquiries: (a) Does the evidence of record clearly and unmistakably show that the Veteran's right knee disability existed prior to his entrance onto active duty? The examiner is specifically requested to consider the August 1966 service treatment records finding a history of Osgood-Schlatter and diagnosis of bilateral Osgood-Schlatter and the February 2014 VA examiner's finding that the Veteran almost certainly had Osgood-Schlatter's disease upon entering service. (b) If the examiner finds that the Veteran's right knee disability clearly and unmistakably existed prior to the Veteran's entrance onto active duty, is there clear and unmistakable evidence that the disorder was NOT aggravated by his active service? The term "aggravated" means an increase in disability during active service beyond the natural progress of the preexisting condition. (c) If the examiner determines that the Veteran's right knee disability did not pre-exist military service, or if it did, that such injury was aggravated, beyond the natural progression of the disorder by military service, the examiner should opine whether it is as least as likely as not (50 percent or higher probability) that the Veteran's current right knee disability is directly related to the Veteran's military service. The examiner must provide a complete rationale for any opinion expressed that is based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner must explain why this is so and note what, if any, additional evidence would permit an opinion to be made. 3. After the above development is completed, readjudicate the Veteran's claim. If the benefit sought continues to be denied, the RO should provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow an appropriate period of time. 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 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 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).