Citation Nr: 18134635 Decision Date: 09/13/18 Archive Date: 09/12/18 DOCKET NO. 15-45 793 DATE: September 13, 2018 REMANDED Entitlement to service connection for a left knee disability, status post left total knee arthroplasty, to include left knee degenerative joint disease (DJD), osteoarthritis, collateral ligament strain, and lateral structures instability, is remanded. Entitlement to a temporary total rating for a period of convalescence for left knee total knee arthroplasty pursuant to 38 C.F.R. § 4.30, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1972 to August 1975, including 1 year 10 months of sea service. Left knee disability The Veteran contends that his left knee disability is related to or aggravated by his active service as a seaman. The Board finds that further development and adjudication is necessary to comply with VA's duty to assist the Veteran to obtain evidence needed to substantiate his claim. Generally speaking, service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). However, when a question is raised as to whether a particular disability claimed by the Veteran pre-existed service, VA law provides that 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 examination, acceptance, and enrollment into service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). If a pre-existing disability is noted at entry, then the presumption of soundness is rebutted, and aggravation of that disability must be demonstrated for service connection to be granted. A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during service unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. In this case, records show that the Veteran currently has a left knee disability, and indeed underwent a TKA in August 2014. The current disability criterion is met. That said, the Veteran’s July 1972 enlistment examination noted that the Veteran had previously undergone surgery on his left knee. That examination noted that the Veteran has “surgical scars, no deformity or effusion, mild [laxity of the] medial ligaments, good motion.” Subsequent records indicate that the Veteran underwent an “excision of [his] medial meniscus and also of the lateral meniscus” of his left knee at a civilian hospital in 1969, some three years prior to his enlistment. Given this notation, the presumption of soundness does not apply, and service connection may only be granted if there is a showing of an increase in this disability during his service. There are records suggesting such an increase. In August 1974, the Veteran complained of his left knee giving way. A September 1974 consultation sheet note complaints of left knee pain for 2 months, with the examining physician noted that the Veteran “has an awful knee.” The Veteran underwent a repair of the lateral structures of the left knee in September 1974; the Veteran was kept in a cast for 6 weeks, and a February 1975 Medical Board report noted that, at the time of his surgery, the Veteran’s “knee joint was by no means normal,” as there was “definite damage done to the articular cartilage of the lateral plateau of the tibia.” The Veteran was not returned to full duty at that time. A July 1975 Medical Board report noted that the Veteran had instability in the lateral structures of his left knee, but he was found fit for duty. The Board, however, is not in a position to determine whether this subsequent in-service treatment represents an increase in disability for which service connection may be granted, or if the Veteran’s complaints represent the natural progression of his noted pre-service disability. The Veteran underwent a VA examination in March 2013. The examiner in that case determined that the Veteran’s Veteran’s pre-existing left knee condition (medial ligament laxity status post medial and lateral meniscus excision) was not likely permanently aggravated by service and noted that “there was no mention of any injury or trauma” in service. However, the rationale did not address the July 1975 Medical Board’s finding that at the time of September 1974 in-service surgery “there was definite damage done to the articular cartilage of the lateral plateau of the tibia” or the Veteran’s reports of his left knee “giving way” going up ladders and aggravation “by walking up and down ladders.” As such, the examiner’s rationale is inadequate because it is based on an inaccurate factual premise and does not consider the Veteran’s competent lay statements. A new opinion is required before the Board may consider this case. Finally, the Board notes that the temporary total rating is inextricably intertwined with the issue of service connection for the left knee. As such, the claim for a temporary total rating is remanded pending the adjudication of the left knee issue. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records for the Veteran’s left knee disability since November 2014. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received are associated with the record. 2. After the above development has been completed, schedule the Veteran for a VA examination to determine the nature and possible relationship to service or in-service aggravation of any diagnosed left knee disability. All indicated evaluations, studies, and tests deemed necessary should be accomplished. The claim file should be made available to the examiner for their review and the report should state a review of the file was conducted. After a full examination of the Veteran and a review of the file, the examiner must answer the following questions: (a) Please identify all left knee disabilities diagnosed. In so doing, it should be noted that the record contains diagnoses of left knee DJD, osteoarthritis, collateral ligament strain, and lateral structures instability, and thus the opinion should include consideration of these diagnoses. (b) For any diagnosed left knee disability, does the record show that the disability clearly and unmistakably existed prior to service? The examiner is informed that the record reflects and the Veteran has acknowledged, as described above, that he incurred a pre-service left knee injury, underwent medial and lateral meniscus excision in 1969, and the July 1972 entrance medical exam notes mild laxness of medial ligaments. (c) If the answer to (b) is “yes,” does the evidence clearly and unmistakably show that the pre-existing condition was not aggravated by service? Note: Aggravation is defined for legal purposes as a permanent worsening of the underlying condition beyond the natural progression, versus a temporary flare-up of symptoms. Clear and unmistakable means obvious and manifest. (d) Alternatively, if the answer to question (b) is "no," is it at least as likely as not (a 50 percent or greater probability) that a left knee disability, to include left knee DJD, osteoarthritis, collateral ligament strain, and lateral structures instability, is etiologically related to service or had its onset during the Veteran's period of active service? The examiner should address the Veteran’s statements that, as described above, he has experienced left knee pain and instability since service. (Continued on next page) A full rationale for all opinions rendered must be provided. If the examiner cannot respond to the inquiries posed without resort to speculation, he or she should further explain why it is not feasible to provide a medical opinion. Evan M. Deichert Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel