Citation Nr: 18140743 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 17-39 669 DATE: October 5, 2018 REMANDED The issue of entitlement to service connection for a bilateral patella recurrent subluxation is remanded for further development. REASONS FOR REMAND The Veteran served on active duty from July 1974 to September 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran originally submitted his claim for service connection for bilateral patella recurrent subluxation in November 1974, and the claim was denied by a January 1976 rating decision. The March 2016 rating decision currently on appeal denied the application to reopen the claim, finding the evidence submitted since the January 1976 rating decision was not new and material. In October 2017, the Board determined that new and material evidence sufficient to reopen the claim had been submitted, but denied service connection on the merits, finding that the evidence demonstrated that the Veteran’s bilateral knee disability clearly and unmistakably preexisted military service, and was not aggravated by his service. In April 2018, a Joint Motion for Partial Remand (JMPR) was filed with the United States Court of Appeals for Veterans Claims (Court). The JMPR requested that the Court not disturb that part of the Board’s decision that reopened the Veteran’s claim for service connection for bilateral patella recurrent subluxation based on the submission of new and material evidence, but requested remand on the issue of service connection for the Veteran’s bilateral knee disability. In June 2018, the Court ordered the JMPR be granted, and vacated and remanded the Board’s decision on the issue of service connection for bilateral patella recurrent subluxation. The Veteran asserts that his current bilateral knee disability was either incurred in or aggravated by his active duty service. By a statement submitted in August 2017, the Veteran asserted that he was healthy when he entered service. In support of this assertion, the Veteran submitted statements from individuals who knew him prior to service, all of whom attest that he was healthy upon entering service in July 1974. The Board notes that a knee disorder was not indicated on his examination for entrance to service in July 1974. Therefore, the Veteran is presumed sound with respect to his knees. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). While the Board regrets the additional delay, due to deficiencies in the April 2017 VA examination, the Veteran’s claim of entitlement to service connection for bilateral patella recurrent subluxation must be remanded. It has been stipulated that the Board relied on an inadequate April 2017 VA examination to rebut the presumption of soundness in this case. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Multiple factual inaccuracies appear in the April 2017 VA examiner’s report. The examiner stated that there is evidence of bilateral patellar subluxation with chondromalacia that the Veteran acquired when he was 16 years old. No evidence of record indicates a diagnosis of bilateral patellar subluxation with chondromalacia prior to the Veteran’s service. The examiner stated in the opinion that during the years between 1974, when the Veteran was discharged, and 2015, when he sought medical attention, there are no medical records. That statement is not consistent with the record, as the Veteran was hospitalized at a VA facility in November 1975 for bilateral chronic dislocating patella, contradicting the statement that there were no medical records between service discharge in 1974 and treatment in 2015. The examiner states that the Veteran “was only in service from July 18, 1974 to August 16, 1974...” The Veteran was in the service from July 18, 1974 to September 3, 1974. Relying upon the factual inaccuracies described above, the April 2017 VA examiner concluded that the Veteran’s bilateral knee conditions clearly and unmistakably preexisted service and were not aggravated. The rationale for this opinion was that the Veteran “was only in service from July 18, 1974 to August 16, 1974, he didn’t complete his basic training.” However, the examiner did not provide a thorough rationale for the conclusion, but simply made a logical leap that the Veteran’s short time in service could not possibly have caused his bilateral knee conditions. It is imperative that the VA examiner fully explain the rationale behind the conclusion, based on accurate factual and medical evidence, not simply jump to a conclusion without fully addressing why that conclusion was reached. Medical evidence is considered probative when it is factually accurate, fully articulated, and provides sound reasoning for the conclusion. See Nieves–Rodriquez v. Peake, 22 Vet. App. 295, 304 (2008). The VA examiner’s opinion was used to rebut the presumption of soundness, despite the acknowledgement in the October 2017 decision that the “opinion is not a model of clarity.” The Board has conceded that the October 2017 decision failed to provide well defined reasons or bases for its finding that the presumption of soundness was rebutted by clear and unmistakable evidence that the Veteran’s bilateral knee disability preexisted service and that the bilateral knee conditions were not aggravated during service. See Horn v. Shinseki, 25 Vet. App. 231 (2012); Wagner v. Principi, 370F.3d 1089, 1097 (Fed. Cir. 2004); Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). Therefore, the Board finds that the Veteran should be afforded another VA examination in order to adequately address whether the Veteran’s bilateral patella recurrent subluxation is related to his service. Upon remand the RO should keep in mind that in reviewing the adequacy of the new VA examiner’s opinion, the clear-and unmistakable-evidence standard is an “onerous” one, and requires that the no aggravation result be “undebatable.” See Quirin, 22 Vet. App. at 396; Vanerson, 12 Vet. App. at 258. Accordingly, the case is REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain and associate with the claims file all outstanding VA treatment records and VA hospital records related to the Veteran’s claim. 2. Schedule the Veteran for an orthopedic VA examination, to be conducted by a different examiner if possible, to determine whether the Veteran’s bilateral knee conditions, to include bilateral patella recurrent subluxation and arthritis, are related to his service. The examiner is asked to review the pertinent evidence, including the Veteran’s lay assertions regarding his symptomatology, buddy statements, and undertake any necessary studies or tests. Then, based on the results of the examination(s), the examiner is asked to address each of the following: a. The examiner should diagnose all current right and left knee disabilities found to be present. b. The examiner must opine as to whether it is at least as likely as not that any diagnosed right or left knee disabilities are related to or had their onset in service. In issuing the bilateral knee opinion, the examiner is reminded that the Veteran is competent to report symptoms such as knee pain during and post service. The examiner should provide a complete rationale or explanation for all opinions reached. 3. After completing the requested actions, and any additional action deemed warranted, readjudicate the claim on appeal. If the benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. If the RO finds that the presumption of soundness is rebutted and that the Veteran’s bilateral knee condition preexisted his service, it must find that clear and unmistakable evidence shows that this condition preexisted service; and that clear and unmistakable evidence shows the condition was not aggravated by service. See Horn v. Shinseki, 25 Vet. App. at 231, 234 (2012). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Temple, Associate Counsel