Citation Nr: 18145452 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 13-17 104 DATE: October 29, 2018 ORDER New and material evidence having been received, the claim of service connection for a right knee disorder is reopened; the appeal is granted to this extent only. REMANDED Service connection for a right knee disorder is remanded.   DECISION The Veteran served on active duty from May 1979 to September 1982. The case is on appeal from an August 2011 rating decision. The Veteran requested a Board hearing in his May 2013 VA Form 9 substantive appeal. The hearing was scheduled for December 2017; however, the Veteran notified the Board he was withdrawing this request. Therefore, the Board finds that the Veteran’s hearing request has been withdrawn. 38 C.F.R. § 20.704. The Board considers the Veteran’s representative the state veterans service organization (VSO)—Georgia Department of Veterans Affairs. They were the most recently appointed entity by way of a June 2014 VA Form 21-22. There was some confusion as to this given the participation of a prior attorney representative after that date. In a July 2018 letter, the Board informed the Veteran that the state VSO would be considered his representative unless he expressly made a change. There was no response. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right knee disorder. The Veteran’s claim for a right knee disorder was initially denied in a September 1988 rating decision. The Veteran appealed the rating decision and in April 1990, the Board denied the claim. The April 1990 Board decision is final on the date issued and mailed. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. The Board finds that since the April 1990 decision, new and material evidence has been submitted so that the previously denied claim of service connection for a right knee disorder is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see also September 2011 Veteran’s statement; September 2012 VA treatment record; and the March 2013 VA examination report. The reopened claim is further addressed below. REMAND The Veteran contends that his pre-existing right knee disorder was aggravated by service. The Veteran’s service treatment records (STRs) contain numerous entries of complaints and treatment for right knee problems. At his April 1979 entrance examination, the Veteran gave a history of a previous surgery on his right knee for a fracture knee cap. This was also noted on the entrance examination as an existing condition. Examination revealed his knee was asymptomatic, although x-rays showed status post excision of a bipartite patella. Because surgery for a fractured knee cap was noted at entrance, this aspect of the claim is one for service aggravation. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. STRs also show that, in June 1979, the Veteran reported right knee pain for the previous two weeks, secondary to marching. He reported effusion and giving way of the right knee. X-rays showed no evidence of a prior surgical procedure and he was diagnosed with right knee chondromalacia. The Veteran continued to report pain, swelling and other problems with the right knee throughout service, including in July 1980, November 1980, January 1981, October 1981, April 1982 and June 1982. The Board notes the April 1982 STR indicated chondromalacia and an x-ray showed a large bony projection on the medial aspect of the patella, which most likely represented an old fracture, subsequently healed. After service, a July 1988 VA examination was conducted in connection with the Veteran’s initial claim. The diagnosis was right knee pain and arthritis was ruled out after x-ray. In an August 1988 letter, a Dr. Greer noted complaints of pain in the right knee area from October 1985. It was felt that the Veteran had possible patellar tendinitis. Following his December 2010 claim to reopen, the Veteran was afforded a March 2013 VA examination in which the Veteran was diagnosed with degenerative joint disease (DJD) of the right knee. He reported a pre-service knee injury which was worsened by the physical activities from service. With regard to the issue of potential aggravation of the pre-existing disorder, the examiner stated he could not resolve such issue without resorting to mere speculation. He noted the service records clearly state the right knee condition is secondary to the Veteran’s right knee surgery which pre-existed service. The Board finds additional relevant evidence has been received related to the right knee disorder. Further, the March 2013 VA examination report lacks adequate rationale. Therefore, the Board finds a remand is warranted for a VA examination to determine the nature and etiology of the Veteran’s right knee disorder, including whether it pre-existed service and was aggravated during such. In light of the remand, updated VA treatment records should be obtained. Accordingly, this issue is REMANDED for the following actions: 1. Obtain VA treatment records since September 2012. 2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to determine the nature and etiology of the right knee disorder. (i) The examiner should first identify the Veteran’s current right knee disorder(s). (ii) Then, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s pre-existing right knee disorder (surgery for a fractured knee cap) increased in severity during service. Consideration should be given to the STRs pertaining to the right knee and the Veteran’s lay contentions of worsening symptoms due to marching and other physical activities during service. (iii) If yes to (ii), then the examiner should provide an opinion as to whether it is undebatable (reasonable minds could not differ from a medical perspective) that the increase in severity was due to the natural progress of the disease or was a temporary flare-up. (iv) In any case, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently identified right knee disorder had its onset during, or is otherwise related to, the Veteran’s service. Consideration should be given to whether the current disorder(s) are a continuation of the pre-existing right knee condition or are distinct disorders that were not part of the pre-existing condition. A complete rationale should be provided for all opinions reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel