Citation Nr: 18155074 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-56 081 DATE: December 4, 2018 REMANDED The claim of entitlement to service connection for a right knee disorder, to include as secondary to a left knee disorder, is remanded. The claim of entitlement to service connection for a left knee disorder is remanded. The claim of entitlement to service connection for a cervical spine disorder, to include as secondary to a left knee disorder, is remanded. The claim of entitlement to service connection for hypertension is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1970 to November 1973. 1. Entitlement to service connection for a left knee disorder. Remand is required to obtain an adequate VA examination and opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran’s service treatment records (STRs) show a normal entrance examination for the left knee in December 1969. The Veteran was noted to have a scar on the right knee at that time. No left knee disorder or condition was noted. On his December 1969 enlistment Report of Medical History, the Veteran is documented having complaints of bilateral knee pain and his plan to have surgery on the right knee. STRs subsequently indicate that the Veteran had suffered an injury and surgery prior to service in the left knee in 1965, not the right. A May 1973 STR documents that the Veteran had previous surgery for a torn ACL and meniscus. On his separation examination in November 1973, the Veteran was noted to have had torn cartilage of the left knee in 1965, casted. A 6 inch scar was noted on the left knee due to the previous surgery. The STRs also show that the Veteran twisted his left knee in May 1973. No fresh fracture was seen. No further symptoms were noted. A physical profile for the left knee was issued in July 1973. Although a history of a knee injury with subsequent surgery is noted on the Veteran’s initial report of medical history, and although this was later verified to pertain to the Veteran’s left knee, the entrance examination was nevertheless normal. Thus, a left knee disorder was not noted at service entrance, and the presumption of soundness applies. See McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). The Board finds, however, that a left knee disorder clearly and unmistakably pre-existed active service. In an October 2013 VA examination, the VA examiner found that the Veteran had a pre-existing left knee disability before service that had been treated with surgery. After thoroughly discussing the Veteran’s STRs and the pre-service and in-service left knee complaints, the examiner noted that the STRs showed no permanent aggravation. The examiner further noted that permanent or chronic aggravation had not been shown in the subsequent three decades post-service because there were no knee complaints or significant limitations. This opinion is inadequate because it addresses the Veteran’s claim as if a left knee disorder was noted on his entrance examination, which it was not. As noted above, the Veteran is presumed sound for any left knee disorder on entry into service. On remand, a new examination should be obtained that complies with the correct legal framework. 2. The claims of entitlement to service connection for right knee and cervical spine disorders are remanded. The Veteran claims that right knee and cervical spine disorders are secondarily related to his claimed left knee disorder. See May 2013 statement and November 2016 representative argument. As such, the Board finds that the Veteran’s claims are inextricably intertwined with his left knee claim. Thus, remand is required for adjudication of the inextricably intertwined claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). 3. The claim of entitlement to service connection for hypertension is remanded. Remand is required for additional development of the Veteran’s claim. In particular, the Board finds that efforts should be made to ascertain whether the Veteran served in the Republic of Vietnam during the Vietnam era. Until recently, the National Academy of Sciences (NAS) found there was “limited or suggested evidence of an association” between hypertension and exposure to Agent Orange (an herbicide agent), based on a statistical study. See Determinations Concerning Illnesses Discussed in National Academy of Sciences Report: Veterans and Agent Orange: Update 2012, 79 Fed. Reg. 20,308 (April 11, 2014); see also 38 U.S.C. § 1116(b)(2) (2018). The category “limited or suggestive evidence of an association” means that the “evidence suggests an association between exposure to herbicides and the outcome, but a firm conclusion is limited because chance, bias, and confounding could not be ruled out with confidence.” Id. However, the National Academies of Sciences, Engineering and Medicine (NAS) recently found that there was “sufficient evidence of an association” between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War. See Institute of Medicine of the National Academies, Veterans and Agent Orange: Update 2018, available at http://nationalacademies.org/hmd/reports/ 2018/veterans-and-agent-orange-update-2018.aspx. In a May 2013 statement, the Veteran claimed that he served in Vietnam and was exposed to Agent Orange during his service. Unfortunately, very few of his military personnel records are of record. Further, there has been no development to ascertain whether the Veteran did serve in Vietnam. In light of the recent changes from the NAS, the Board finds that such development is necessary. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Take appropriate steps to verify the Veteran’s claim that he served in the Republic of Vietnam, to include obtaining all military personnel records and corresponding with the proper agencies. If such service is verified, appropriately develop the Veteran’s claim for service connection for hypertension. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his left knee disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. a. Is it clear and unmistakable (undebatable) that the pre-existing left knee disorder was NOT aggravated during the Veteran’s active duty service? b. If the answer is no, is it at least as likely as not (50 percent or greater probability) that a left knee disorder manifested during active duty service or is otherwise related to an event, injury, or disease incurred during active duty service? c. The examiner must address the following: 1) the Veteran’s STRs, to include 1973 findings of a left knee sprain; 2) the 2013 VA knee examination; and 3) the Veteran’s lay statements regarding in-service injury and symptoms thereafter. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel