Citation Nr: 18140796 Decision Date: 10/09/18 Archive Date: 10/05/18 DOCKET NO. 18-32 855 DATE: REMANDED Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran had active duty from November 1975 to November 1979. The matter is before the Board of Veterans’ Appeals (Board) on appeal of an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Entitlement to service connection for a left knee disability is remanded. The Veteran contends that his current left knee disability was caused by a left knee strain in 1976 during active duty military service. The Veteran underwent a VA examination in February 2015 to address the etiology of this disability. Regrettably, a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that an addendum opinion is required regarding whether or not there is a nexus between the Veteran’s current left knee disability and the in-service left knee strain. The record raises the issue of whether the Veteran had a pre-existing injury to his left knee before service. The Veteran’s 1975 enlistment examination reflects that the Veteran reported he had a swollen left knee four years prior to enlistment. See October 1975 Report of Medical History, p. 2. According to his August 1976 service treatment record (STR), while in service, the Veteran reported feeling a “click” in his left knee when he squatted down. He went to sick call and was diagnosed with a left knee strain and an examiner placed him on crutches for two days. At the outset, the Board notes that a prior knee injury was noted on the Veteran’s enlistment examination. However, the Veteran reported in his 1975 enlistment examination that he had “no problem” in the four years between the injury and the time of enlistment. In this regard, the Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. §1111. Given that the left knee injury was noted upon entry, but the Veteran reported in the body of the examination report that he had no problems since, the Veteran is presumed sound at entry in this case absent rebuttal of that presumption. In order to rebut the presumption of soundness under 38 U.S.C. §1111, VA must demonstrate by clear and unmistakable evidence that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). To satisfy the second requirement of rebutting the presumption of soundness, VA must rebut a statutory presumption of aggravation by a showing of 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. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim is one for service connection rather than compensation based upon aggravation. Wagner v. Principi. Because the record indicates that the Veteran suffered an injury to his knee prior to service, an opinion as to whether or not he had a pre-existing injury is required. Accordingly, the matter is REMANDED for the following action: 1. Arrange for an examination with an appropriate VA examiner. The claims file, including a copy of the Remand, must be made available to the examiner for review of the case, and the examiner’s report should include a discussion of the Veteran’s documented medical history and lay assertions. A notation to the effect that this record review took place must be included in the report. An examination is not required unless the examiner deems it necessary in order to render the requested opinions. The examiner should provide the following opinions: (a.) Whether it is at least as likely as not (50 percent or more that) the Veteran’s current left knee disability is etiologically linked to his service or the in-service left knee strain. And (b.) Whether there is clear and unmistakable evidence that a left knee injury and disability occurred prior to service. i. If there is clear and unmistakable evidence that a left knee disability pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing knee condition was not aggravated, i.e., permanently worsened beyond its natural progression, during service. The examiner should note that “clear and unmistakable evidence” means that the evidence cannot be misinterpreted and misunderstood, i.e., is undebatable. (c.) If the examiner determines that a left knee condition pre-existed service and was worsened beyond its natural progression during service, please provide an opinion as to whether it is at least as likely as not that the Veteran’s current left knee disability is related to his service or the in-service left knee strain. (d.) If the examiner determines that a left knee disability did not pre-exist service please provide an opinion as to whether it is at least as likely as not that the Veteran’s current left knee disability is related to his active service or the in-service left knee strain. In addition to the Veteran’s medical history, all conclusions and rationales should take into consideration the Veteran’s assertions regarding his symptoms prior to, during, and after service. A complete rationale should be provided for all opinions and conclusions expressed. 2. Upon completion of the above, readjudicate the claim on appeal. If the benefit sought is not granted in full, provide the Veteran with a Supplemental Statement of the Case (SSOC) and allow an appropriate opportunity to respond thereto before returning the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. C. Slaughter, Associate Counsel