Citation Nr: 1805254 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-08 417 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Smart, Associate Counsel INTRODUCTION The Veteran had active service from February 1988 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran filed a notice of disagreement in February 2012 and was provided with a statement of the case in February 2013. The Veteran perfected his appeal with a March 2013 VA Form 9. The Veteran testified before the undersigned in September 2017 and a copy of that transcript is of record. This appeal was processed using the Veterans Benefits Management System (VBMS). A review of the Veteran's Legacy Content Manager Documents file reveals documents that are either duplicative or irrelevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran contends that he had a preexisting right knee condition that was aggravated by his military service. A December 1987 private report of medical examination shows that it was noted that the Veteran underwent orthoscopic surgery and was treated from October 1986 to December 1986. It was noted that as of January 1987, the diagnosis was resolved patellar malalignment syndrome. It was noted that the current status of the condition was resolved and the prognosis was good. The Veteran's January 1988 enlistment report of examination noted that the Veteran had arthroscopy right knee in 1986. A March 1988 Entrance Physical Standards Board Proceedings shows that it was noted that the Veteran sustained a right knee injury in October 1983 in an automobile/bicycle accident. It was noted that he had a lateral release patella by an orthopedic surgeon in October 1986. It was noted that the Veteran has pain since with essentially no improvement with treatment and worse with all running and PT. Knee x-rays were within normal limits. The examiner diagnosed patella femoral joint syndrome. It was recommended that the Veteran be separated from service. It was noted that service did not aggravate the condition. Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that '[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 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). The presumption of aggravation applies only when a pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306 (b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition itself, as contrasted with mere symptoms, has worsened. See Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In this case, the Board finds that pursuant to McLendon v. Nicholson, 20 Vet. App. 79 (2006), the claim should be remanded for an examination to obtain a medical opinion regarding the nature and etiology of the Veteran's right knee disability. Accordingly, the case is REMANDED for the following action: 1. Contact and ask the Veteran to identify the provider(s) of any and all evaluations and/or treatment he has received for his right knee and to provide authorizations for VA to obtain records for any such private treatment. Obtain for the record complete clinical records of all pertinent evaluations and/or treatment (records of which are not already associated with the record) from the providers identified. If any records sought are unavailable, the reasons for their unavailability must be noted in the record. If a private provider does not respond to the VA's request for identified records sought, the Veteran must be so notified, and reminded that ultimately it is his responsibility to ensure that private treatment records are received. 2. Then, schedule the Veteran for a VA examination to determine the nature and etiology of his right knee disability. The Veteran's claims file, including this remand, should be made available for review by the examiner in conjunction with the examination. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. The examiner should respond to the following: a) Please identify (by diagnosis) each right knee disorder found/shown by the record. b) For each right knee disorder entity diagnosed, did any such disorder exist prior to the Veteran's entry into military service? If so, please identify, if possible, the approximate date of onset of that disorder. c) If any such disorder preexisted the Veteran's period of military service, did that disorder progress at a rate greater than normally expected during his military service? In responding to this question, the examiner should comment on whether the Veteran suffered temporary or intermittent right knee symptoms in service; or whether the Veteran suffered a permanent worsening in the underlying pathology of that disorder due to any incident that occurred during his military service. If a preexisting right knee disorder is deemed to be permanently worsened in its underlying pathology, the examiner should comment on whether such worsening is due to the natural progression of that disorder. d) If a right knee disorder entity diagnosed DID NOT exist prior to the Veteran's entry into military service, please identify the likely cause for any such disorder. Specifically, is it at least as likely as not (a 50 percent or greater probability) that any such disorder began in (or is otherwise related to) the Veteran's military service? If a right knee disorder shown is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explain why this is so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. (Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). 3. The, the AOJ should review the record, conduct any additional development deemed necessary, and readjudicate the issue of service connection for a right knee disorder. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The case should be returned to the Board for further review, if otherwise in order. 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). _________________________________________________ DEBORAH W. SINGLETON 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).