Citation Nr: 18156346 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-01 602 DATE: December 7, 2018 REMANDED The claim of entitlement to service connection for left knee arthritis (hereinafter a left knee condition) is remanded. REASONS FOR REMAND The Veteran had honorable active duty service with the United States Army from April 1975 to September 1976. This matter is before the Board of Veteran’s Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, denying the claim currently on appeal based on a finding that this condition preexisted military service. Notice of the October 2012 decision was sent to the Veteran on November 5, 2012. The claim of entitlement to service connection for a left knee condition is remanded. The Veteran contends that he is entitled to service connection for his left knee condition. He contends that he injured his left knee in service and that the records from Portsmouth, Virginia during the time the examination was performed were not obtained. See Veteran’s Application for Compensation or Pension February 2011 and Notice of Disagreement (NOD) dated November 2013. The Veteran has failed to identify the date or dates of any alleged treatment at “Portsmouth Naval.” Although further delay is regrettable, the Board finds that 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 claims so that he is afforded every possible consideration. 38 U.S.C. § 5103(A) (2012); 38 C.F.R. § 3.159 (2018). VA has a duty to assist a claimant in obtaining relevant and adequately identified records. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010); Loving v. Nicholson, 19 Vet. App. 96, 102 (2005); see also 38 U.S.C. § 5103(A); 38 C.F.R. § 3.159 (c) (2018). While the precise reason for these disability benefits is not immediately apparent based upon evidence of record, “[i]n the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained.” Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007). In the Veteran’s NOD, he does indicate that the left knee condition, “occurred while serving in the United States Army and the hospital records will state and prove that.” These missing records are argued by the Veteran to be relevant to the current issue before the Board. Since the Board is unable to determine the relevancy of the missing documents without obtaining them first, VA must make reasonable efforts to retrieve them. There are no indications in the file of the Veteran that efforts were made to obtain these records beyond the correspondence to the Veteran noted below. The Board does note that correspondence was sent to the Veteran to obtain his dates of treatment from the Portsmouth Naval Medical Center in an effort to comply with The Veteran’s Claims Assistance Act of 2000 (VCAA), without response from the Veteran. See April 2011, VCAA/DTA Letter. This information is crucial to identifying any potentially missing records, and the Veteran should be given an additional opportunity to provide this evidence and be notified that his failure to provide said evidence could have negative consequences on the outcome of his claim. While VA has a statutory duty to assist in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence – the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The claims file does not appear to contain any records from Portsmouth Naval Hospital. It is unclear as to whether these service treatment records have been associated with the claims file. On remand, an attempt should be made to obtain these potentially missing service treatment records. Furthermore, an examination is required in this case so that an opinion regarding the etiology of any current left knee disability can be obtained. The RO determined that the Veteran’s left knee disability preexisted his military service, and since there was no evidence of aggravation, service connection for a left knee disability could not be established. As outlined below, it is wholly unclear from the evidence of record how the RO came to the conclusion that the Veteran had a preexisting left knee disability. An evaluation of the lower extremities and the musculoskeletal system performed as part of the January 1975 enlistment examination was deemed to be normal. This examination took place in Boston, Massachusetts. No preexisting or current left knee disability or injury was noted in the examination report and the Veteran denied having, or ever having had, a “trick” or locked knee or bone, joint or other deformity in his report of medical history associated with this examination. As such, the presumption of soundness attaches in this case. A previous induction examination for Reserve purposes only dated March 1972 that took place in Richmond, Virginia indicates the same findings as the January 1975 examination. The Veteran also denied knee issues or bone, joint or other deformity in his report of medical history associated with this examination as well. A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C. § 1111 (West 2012); 38 C.F.R. § 3.304; VAOPGCPREC 3-2003. In VAOGCPREC 3-2003, the VA’s General Counsel determined that the presumption of soundness is rebutted only where clear and unmistakable evidence shows that the condition existed prior to service and that it was not aggravated by service. The General Counsel concluded that 38 U.S.C. § 1111 requires VA to bear the burden of showing the absence of aggravation in order to rebut the presumption of sound condition. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) and Cotant v. Principi, 17 Vet. App. 116, 123-30 (2003). In sum, the law as interpreted under Cotant, 17 Vet. App. at 116 and VAOPGCPREC 3-2003 mandates that, to rebut the presumption of sound condition upon entry into service under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner, 370 F.3d at 1096. Therefore, upon examination, an opinion must be provided as to whether there is clear and unmistakable evidence that the Veteran, who is presumed to have been of sound condition upon enlistment, had a preexisting left knee disability. The Veteran reported during his September 2012 VA examination that his left knee condition began in May 1975 when he stepped into a hole. His knee reportedly “locked and twisted.” The Veteran reported that the condition had continued to worsen. He reported that his knee hurt all of the time and that he had arthroscopy in 1982. The examiner concluded that “[t]he claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” No rationale was provided to support a finding that the condition clearly and unmistakably existed prior to service; rather, the examiner conceded that there was no finding of a knee disability upon enlistment. The examiner also concluded that there was no evidence of aggravation because there was no mention of any knee condition, except for chondromalacia, while in service or on separation. According to an August 1976 in-service treatment record, the Veteran had a history of a football injury. He reported that his left knee had been swollen for the past two weeks with pain around the knee cap. One record from this time period assigned a diagnosis of knee pain while another assigned what appears to be a diagnosis of chondromalacia (although the handwriting is not entirely legible). An evaluation of the lower extremities and the musculoskeletal system performed as part of the 1976 separation examination was deemed to be normal and no chronic left knee disability was noted at this time. In light of the above, the Board finds the September 2012 VA examination to be wholly inadequate. The presumption of soundness attaches in this case and can only be rebutted by a finding of “clear and unmistakable” evidence of a preexisting injury and “clear and unmistakable” evidence that the condition was NOT aggravated beyond the natural progression of the condition (if clear and unmistakable evidence of a preexisting injury is found) – both opinions must be supported by a full rationale. Merely stating there is clear and unmistakable evidence of a preexisting condition, with nothing further, is insufficient. The matter is REMANDED for the following actions: 1. The AOJ should ensure that the Veteran's complete service treatment records are associated with the claims file. The Veteran should be asked to identify approximate dates of treatment at Portsmouth Naval and be made aware of the fact that his failure to provide this information could have negative consequences on the outcome of his claim. Even if the Veteran fails to respond, the AOJ should make all reasonable attempts to obtain any outstanding medical records from Portsmouth Naval Medical Center in Portsmouth, Virginia since April 1975. If these additional records cannot be obtained, the AOJ should prepare a memorandum of unavailability detailing the efforts made to obtain them for the Veteran and his representative. This memorandum must include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. The efforts to locate these records should only end if the evidence, or information, does not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159 (c)(2). If appropriate records are deemed to be unavailable, the claims file must be properly documented as to the unavailability of these records. All such available records should be associated with the claims file. Provide the Veteran with an opportunity to identify any other outstanding private or VA treatment records relevant to his claims. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. 2. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee condition. The Board notes that the Veteran has a current diagnosis of moderately severe osteoarthritic degenerative changes and small joint effusion of the left knee. However, the examiner is to consider any diagnosis found upon current examination. After performing all indicated tests and studies, the examiner is to address the following: (a) Is there clear and unmistakable evidence of a preexisting left knee disability in this case? The Board notes that no left knee disability was noted at the time of enlistment, and as such, the presumption of soundness does attach in this case and can only be overcome by a showing of clear and unmistakable evidence of a preexisting left knee condition. The Board notes that the term “clear and unmistakable” is defined in applicable regulations to mean “obvious or manifest.” 38 C.F.R. § 3.304(b). This term has been further defined by the Court as meaning that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The Board further notes that while the Veteran did report a prior football injury, there is no indication as to whether this occurred prior to military service. Furthermore, as previously noted, the knee was deemed to be normal at the time of enlistment. (b) If, and only if, the examiner concludes that there is clear and unmistakable evidence of a preexisting left knee condition, then the examiner should further opine as to whether there is clear and unmistakable evidence demonstrating that any preexisting left knee condition was not aggravated beyond the natural progression of the condition as a result of active military service. (c) Finally, if it is determined that there is not clear and unmistakable evidence of a preexisting left knee condition, the examiner must opine as to whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner should address the Veteran's reports of pain and opine on whether this reported pain in fact results in actual functional impairment. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question presented. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim of service connection for a colon disability, to include colon cancer. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C.A. Teich, Associate Counsel