Citation Nr: 18145822 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 14-03 678 DATE: October 30, 2018 ORDER Entitlement to service connection for heart murmur is granted. REMANDED Entitlement to service connection for right knee disability is remanded. Entitlement to service connection for left knee disability is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veterans favor, the Veteran’s heart murmur had its onset during his active duty service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veterans favor, the criteria for service connection for heart murmur have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1980 to September 2003. In December 2016, the Veteran testified during a Board video-conference hearing before a Veterans Law Judge (VLJ) who is no longer before the Board; the hearing transcript is associated with the claims file. In September 2018, the Veteran was informed that the VLJ is no longer with the Board and that he could have an additional hearing and that he may submit a written statement instead of having a hearing. The letter also explained that if the Veteran did not respond within thirty days of the letter, the Board will assume he did not want an additional hearing and would proceed with the appeal. As the thirty days have passed without response from the Veteran, the Board will proceed with the appeal. In October 2017, the Board reopened and remanded the claims and the appeal has been returned to the Board for further consideration. During the pendency of the claim and prior to certification of the appeal to the Board, in a July 2018 rating decision, the RO granted service connection for hypertension, bilateral hearing loss, and post-inflammatory hyperpigmentation of the right and left lower extremities (claimed as lower leg wounds). As this represents a full grant of the benefits sought on appeal, these issues are no longer before the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. 1110; 38 C.F.R. 3.303(a). Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including cardiovascular diseases, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Certain disabilities, including cardiovascular diseases, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. The term “noted,” in 38 U.S.C. § 1111, refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, the veteran is presumed sound. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the Veteran asserts that his current heart murmur is related to his active service. The service treatment records (STRs) reflect a diagnosis of heart murmur II/VI systolic in September 1983 STRs. The STRs through 1999 notes continued diagnosis and history of heart murmur. This murmur was not identified upon entrance, and thus the Veteran is presumed sound upon entry to service. A December 2017 VA examination report provided a diagnosis of heart murmur and explained it is not possible to determine when the Veteran’s murmur developed, or whether it is a congenital defect as the Veteran’s enlistment physical did not document a heart murmur. The examined also indicated that the heart murmur was noted on exam in December 1993 with Grade II parasystolic murmur noted. Here, the Veteran’s service entrance examination was normal as to any heart conditions. The file lacks clear and unmistakable evidence to rebut the presumption of soundness; indeed, the VA examiner was unable to reach a conclusion as to whether the disorder was congenital in nature. Given this, and in light of the fact that the heart murmur was noted during service since 1983, resolving any reasonable doubt in the Veteran's favor, the record supports a finding that his heart murmur was incurred during service. Therefore, service connection for heart murmur is warranted. REASONS FOR REMAND In his December 2016 Board testimony, the Veteran asserted that his left knee disability is a result of his service on Coast Guard ships, as there was a lot of movement, which caused wear and tear on his knee. He explained that he felt pain but it became more noticeable after service. He also claims his right knee is secondary to his now service-connected right leg staph infection, because it caused him to walk in a certain way and it impacted his right knee. The Veteran underwent a VA knee examination in December 2017. The examiner opined it is less likely that the current right and left knee findings are related to the Veteran’s military service because of the absence of chronic left knee pain during the Veteran's military service in the attached records. Furthermore, there is no evidence of a persistent bilateral knee conditions immediately post-military. Here, the examiner relied heavily on the absence of contemporaneous evidence of any treatment for his knee conditions, and thus, failed to address the Veteran’s contention of continuity of symptoms since service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir 2006). In addition, there is no opinion addressing whether the Veteran’s service-connected right lower leg disability caused or aggravated a right knee condition, as alleged. Thus, addendum opinions addressing the above are required. As the matter is being remanded, and it appears that the Veteran continues to receive treatment through VA, updated VA treatment records should also be obtained. See Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016). The matters are REMANDED for the following action: 1. Obtain any outstanding updated VA treatment records. 2. Request an addendum opinion from a qualified VA physician to determine the etiology of his bilateral knee disabilities. The need for an additional examination of the Veteran is left to the discretion of the VA examiner(s) providing the opinion. The claims file and a copy of this Remand must be made available to the reviewing examiner, and the examiner shall indicate in the addendum report that the claims file was reviewed. Based on review of the record, the physician should address (a) whether it is as least as likely as not (50 percent probability or more) that a left or right knee disability, to include bilateral tendonitis and arthritis, had an onset during service or were otherwise causally related to service, or, (b) whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s leg staph infections (which the Veteran is now service-connected for its residuals) caused his bilateral knee disabilities. If not, did the staph infections aggravate any left or right knee disability? If aggravation is found, the examiner should identify baseline level of disability prior to such aggravation. In addressing the above, the examiner should address the Veteran’s contentions that being on the ship caused wear and tear on his knees, as well as his contention that the multiple lower leg infections also caused him to walk differently, thereby, impacting his knees. In answering all of the questions, the physician may not rely solely on the absence of medical records as a basis for the opinion and should consider the Veteran’s statements, particularly his reports of his continuity of symptoms and worsening thereafter. The Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the physician rejects the Veteran’s reports, the examiner must provide a reason for doing so. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah Campbell