Citation Nr: 18140302 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 14-21 755 DATE: October 2, 2018 REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to service connection for a bilateral hip disability is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. INTRODUCTION The appellant served on active duty in the Army from August 1972 to October 1972. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The appellant filed a timely Notice of Disagreement (NOD), received in October 2013. A Statement of the Case (SOC) was issued in June 2014. A timely substantive appeal was received in June 2014. The appellant was afforded a hearing by videoconference before the undersigned in May 2018. A.Z. also offered testimony. A transcript is of record. REASONS FOR REMAND The appellant contends that he incurred a left knee injury during basic training, which caused him to develop secondary bilateral hip, knee, and foot disabilities, in addition to rendering him unemployable. As an initial matter, the Board notes that the RO denied the appellant’s claims on the basis that he was ineligible for any VA benefits because he did not complete a minimum period of active duty. See 38 C.F.R. § 3.12a. However, the appellant’s active service was prior to September 7, 1980, which renders 38 C.F.R. § 3.12a inapplicable. Thus, the claims must be adjudicated on the merits. At the appellant’s July 1972 enlistment examination, he completed a Report of Medical History on which he endorsed a history of swollen or painful joints, cramps in the legs, bone, joint, or other deformity, and “trick” or locked knee. He noted that he was unable to perform any motions or assume any positions which had to do with bending the legs or knee. He reported that he had previously undergone a cartilage removal from his knee, or general correction. The examining clinician noted that the appellant’s knee pain and swelling had occurred two years prior and that the appellant had not experienced anything recently. The appellant’s July 1972 enlistment Report of Medical Examination itself was essentially normal, including the lower extremities and feet. The medical officer stated in August 1972 that no disqualifying defects or communicable diseases were noted. The Veteran was found suitable for enlistment/induction. His PULHES was “1” for each category. Under these circumstances, the appellant is legally presumed to have been in sound condition at service entrance. 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994); Miller v. West, 11 Vet. App. 345, 348 (1998). In cases such as this, where the presumption of soundness has initially attached, the burden shifts to the Secretary to show by clear and unmistakable evidence that: “(1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service.” Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). The second prong of the presumption of soundness is rebutted if there is clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. The appellant’s service treatment records include an August 31, 1972, clinical notes indicating that the appellant complained of bilateral knee pain, which he had dealt with for some years. The assessment was genus valgum. He was referred to the orthopedic clinic. An August 31, 1972, orthopedic note states that the assessment was bilateral Osgood-Schlatter disease, history of bilateral subluxating patella, and genus valgum. An August 31, 1972, Physical Profile Record states that the appellant had Osgood-Schlatter disease and could not walk farther than one-half mile for two weeks. A September 5, 1972, clinical note states that the appellant had recurrent Osgood-Schlatter disease. A September 5, 1972, orthopedic note states that the appellant had a well-established history of Osgood-Schlatter disease. He has experienced a dislocation of the left patella three years prior. The impression was Osgood-Schlatter disease. A September 5, 1972, Physical Profile Record states that the appellant had Osgood-Schlatter disease and had a “3T” PULHES score for the legs. He could not perform any crawling, stooping, running, jumping, prolonged standing, or marching. He could not walk farther than one-half mile. A September 7, 1972, orthopedic note states that the diagnosis included bilateral genus valgum. A September 1972 report of Medical Board proceedings states that the appellant was found to have bilateral genu valgum with patella alta, chondromalacia of the knees, and history of dislocated left patella. The causes of such were not incident to service. Rather, these disabilities existed prior to entry onto active duty and were not aggravated by active duty. The appellant reported that he had a history of Osgood-Schlatter’s disease for several years and also had problems with both kneecaps. He noted that he has always walked with his legs in a genu valgum position. Approximately three years prior, he was seen at the Philadelphia Naval Hospital for dislocation of the left patella. He was treated with closed reduction and casted. He noted also having been in casts for bilateral Osgood-Schlatter’s disease. Due to knee pain, he must severely restrict his physical activities. Since entry onto active duty, he experienced increasing symptoms and pain in the knees. Examination revealed that the appellant walked with a genu valgum bilaterally. He had approximately 15 degrees of genu valgum bilaterally. The patella rode laterally bilaterally on flexion and extension of the knee with a palpable click as the patella rode over the femoral condyle. He experienced crepitus and pain bilaterally on palpation of the patella. The patellae rode high and were abnormally lax, nearly allowing lateral dislocation with extreme pain. He also had tenderness over the tibial tubercles bilaterally. X-rays revealed bilateral genu valgum with a valgus deformity located in the proximal third of the tibia. The patellae rode high bilaterally and laterally. He was diagnosed with bilateral genu valgum with patella alta, chondromalacia of the knees, and history of dislocated left patella, all of which existed prior to service. The appellant was found to be unfit for induction under Army Regulation 40-501, Chapter 2, paragraph 10d(2) and was to be separated under provisions of AR 635-200, paragraph 5-9. He was medically cleared for separation. In a September 12, 1972, memorandum, the appellant requested that he be separated from the service for reasons of a physical condition which rendered him unfit for induction. Had the condition been known at the time of induction, it would have permanently disqualified him from entry into the service. An September 1972 Report of Medical Examination states that the appellant’s lower extremities were abnormal. Physical examination revealed that the appellant walked with a genus valgum bilaterally. He had 15 degrees of genu valgum bilaterally. The patella rode laterally bilaterally on flexion and extension of the knee with a palpable click as the patella rode over the femoral condyle. He had crepitus and pain bilaterally on palpation of the patella. The patellae rode high and were abnormally lax, nearly allowing lateral dislocation with extreme pain. He also had tenderness over the tibial tubercles bilaterally. Bilateral genu valgum with patella alta, chondromalacia of the knees, and history of dislocated left patella were noted to have existed prior to service. The recommendation was separation and it was noted that the appellant was not qualified for induction. His PULHES score for “L” was “3.” On the accompanying Report of Medical History, the appellant endorsed swollen or painful joints, leg cramps, bone, joint, or other deformity, and “trick” or locked knee. He endorsed an inability to bend knees or walk straight. He had previously undergone a knee operation. A September 27, 1972, memorandum from the Deputy Adjutant General states that the appellant was to be separated for the convenience of the government, under the provisions of Chapter 5, paragraph 5-9, AR 635-200. During his May 2018 Board hearing, the appellant testified that he injured his left knee in service when he slipped on an inverted ladder, fell into a sandpit, and twisted his knee. He was still able to walk following this injury. However, later that night, he was walking fire watch and his knee swelled up. He was sent to the hospital clinic the next day, where he was issued aspirin and ice. The clinician told him that discharge would be recommended. In the attorney’s August 2018 brief, it is argued that the appellant is entitled to the presumption of soundness because his entrance examination report states that he had no disqualifying defects upon entry. The attorney stated: There is no clear and unmistakable evidence that indicates that a condition existed before [the appellant] was inducted into service. [The appellant] contends that[,] while in basic training[,] he suffered an injury that disqualified him from continuing his service. Unfortunately, no record exist [sic] of the claimed injury[;] and the only records that do exist indicate that [the appellant] had a condition that preexisted service. Because nothing was noted on entry, but service treatment records from two months after the entrance examination indicate that the appellant had several diagnoses which preexisted his service, the attorney contends that the appellant “did in fact suffer an injury in-service that was not documented and instead was treated as a pre-existing condition to avoid having to pay [the appellant] future benefits for his injuries in basic training.” In the alternative, the attorney contends that, even if the appellant had a disability which clearly and unmistakably preexisted service, VA has not yet considered whether such a disability was aggravated by the appellant’s service. The Board notes the June 2016 private medical opinion submitted by the attorney. The clinician opined that it was more likely than not that the appellant’s posttraumatic osteoarthritis of the left knee and chronic left knee pain were caused by an injury sustained while on active duty. The clinician also opined that it was more likely than not that the appellant had a pre-existing condition prior to his active service which was aggravated by such active service because the appellant had a long history of knee pain since a boot camp injury. By way of rationale, the clinician simply stated: “see medical records.” The Board find that this opinion is inadequate to grant service connection for a left knee disability because such is merely conclusory in nature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The appellant was scheduled for a contracted examination to determine the nature and etiology of any and all knee disabilities in October 2013. However, he failed to appear. In a November 2013 letter, the appellant’s former attorney reported that the appellant had not received notice of the examination. November 2013 email correspondence from a VA Congressional Liaison indicated that the examination would be rescheduled after the appellant updated his contact information with VA. The examination has not yet been rescheduled. The Board finds that the appellant should be afforded an appropriate examination to determine the nature and etiology of any and all knee disabilities present. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). As resolution of the claim of entitlement to service connection for a bilateral knee disability may have an impact on the appellant’s claims of entitlement to service connection for bilateral hip and foot disabilities and entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. The appellant should be afforded an appropriate examination to determine the nature and etiology of any bilateral knee disabilities that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the appellant’s service treatment records, post-service medical records, and lay assertions. He or she should also consider the brief summary of facts provided in this remand. It should be noted that the appellant is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current bilateral knee disabilities. The examiner is advised that under the law, the appellant is presumed to have been in sound condition at enlistment. That legal presumption may be rebutted if it is clear and unmistakable that the disease existed prior to service; and it is clear and unmistakable that the disease was not aggravated by service. Thus, for each knee disease identified, he or she should state whether it clearly and unmistakably preexisted the appellant’s military service. (In responding to this question, the examiner is advised that “clear and unmistakable” means that the conclusion is undebatable, unconditional, and unqualified, and cannot be misinterpreted or misunderstood). If the knee disease clearly and unmistakably preexisted service, the examiner should state whether it is also clear and unmistakable that the disease was not aggravated by service. If any identified knee disease did not clearly and unmistakably preexist the appellant’s service, the examiner should state whether it is at least as likely as not that the disease manifested during service or whether the current knee disability is otherwise causally or etiologically related to any in-service knee disease or injury. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel