Citation Nr: 1803385 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 09-41 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for patellofemoral syndrome of the bilateral knees. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his mother ATTORNEY FOR THE BOARD K. Lynch, Associate Counsel INTRODUCTION The Veteran served on active duty from January 26, 1987 to March 6, 1987. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2011, a Board videoconferecence hearing was conducted. A transcript of the hearing testimony is in the claims file. In February 2014, the Board reopened the claim for service connection for patellofemoral syndrome of the bilateral knees and remanded the claim for additional development. In February 2015, the Board denied the Veteran's claim. In September 2015, the Veteran appealed the February 2015 Board decision to the United States Court of Appeals for Veterans Claims (Court). In October 2016, the Court issued a Memorandum Decision that set aside and remanded the Board's February 2015 decision for the reasons set forth below. In a July 2017 letter, the Veteran was given the opportunity to have another Board hearing with a current Veterans Law Judge (VLJ) since the Acting VLJ who conducted the April 2011 hearing is no longer with the Board. In July 2017, the Veteran stated that he did not want another Board hearing. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran's claim of entitlement to service connection for patellofemoral syndrome of the bilateral knees must be remanded for an addendum VA medical opinion in accordance with the terms of the October 2016 Court order. The February 2015 Board decision noted that the presumption of soundness applied to the Veteran because his November 1986 entrance examination was silent as to any defect or diagnosis related to the knees. The Board concluded that there was clear and unmistakable evidence that the Veteran's knee condition pre-existed service and that the knee condition was not aggravated beyond its natural progression in service. On these bases, the February 2015 Board denied the Veteran's claim. In the October 2016 Memorandum decision, the Court determined that the Board did not err in finding that the Veteran's knee condition clearly and unmistakably pre-existed service. See October 2016 CAVC decision, p. 77. However, the Court found two reasons to set aside the Board's finding that the Veteran's pre-existing knee condition clearly and unmistakably was not aggravated during service. First, the Board erred in relying upon on a May 2014 VA examination. The Court found the May 2014 VA examination inadequate since it did not provide a reasoned medical explanation as to why the Veteran's knee condition was not aggravated beyond its natural progression. Specifically, the May 2014 VA examiner stated that the Veteran's in-service knee symptomatology represented "progression" of the Veteran's knee condition, but did not explain how this "progression" was no more than "natural progression." Id. at 78. Second, the Court found that the Board failed to identify precisely any other evidence, aside from the May 2014 VA examination, on which it relied when it found that the Veteran's pre-existing condition was not aggravated beyond its natural progression. Id. at 78-79. In sum, since the February 2015 Board decision relied on an inadequate examination report and failed to identify the other evidence on which it relied, the Court found that the Board decision provided an inadequate statement of reasons or bases in denying the Veteran's claim. As such, the Court set aside the February 2015 Board decision. The Court then remanded the Veteran's claim for further proceedings consistent with the Court's decision. Id. at 79. In light of the foregoing, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records since they were last associated with the claims file in August 2014. 2. Thereafter, obtain an addendum to the May 2014 VA examination report. The Veteran should be scheduled for another VA examination only if determined necessary. The claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. After a review of the record, the examiner should offer his or her opinion as to the following inquiry: The examiner should offer an opinion as to whether the Veteran's pre-existing bilateral patellofemoral syndrome clearly and unmistakably underwent no permanent aggravation during active service, to include as due to activities such as walking, running, and training in combat boots during boot camp. The examiner should explain whether any in-service findings pertaining to the knees were the result of the natural progression of his patellofemoral syndrome, or were the result of permanent aggravation that was beyond the natural progression. The examiner must explain why. The examiner should be advised that "clear and unmistakable" evidence means with a much higher degree of certainty than "as likely as not" or "very likely." Also, the term "aggravation" means that the disability increased in severity beyond its natural progression. The examiner should provide a reasoned medical explanation, clear conclusions, and supporting data for any opinion expressed. If the examiner is unable to reach an opinion as to any of the information requested above without resorting to speculation, he or she should explain the reasons for such inability and comment on whether any further tests, evidence, or information would be useful in rendering the opinion being sought. 3. After completing the development requested above, in addition to any other development deemed necessary by the AOJ, re-adjudicate the Veteran's claim. If the benefit sought is not granted in full, furnish the Veteran and his representative a Supplemental Statement of the Case, and return the case to the Board, if otherwise in order. The Veteran 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 (2012). _________________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).