Citation Nr: 19147751 Decision Date: 06/19/19 Archive Date: 06/18/19 DOCKET NO. 18-33 821 DATE: June 19, 2019 REMANDED Entitlement to service connection for right knee pain is remanded. Entitlement to service connection for left knee pain is remanded. REASONS FOR REMAND The Veteran was on active duty in the United States Marine Corps from April 1977 and May 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs Regional Office (RO). 1. Entitlement to service connection for right knee pain is remanded. 2. Entitlement to service connection for left knee pain is remanded. The Veteran contends that after joining the United States Marine Corps, he marched and ran with a heavy pack, specifically “782 gear” on his back. He concedes that he underwent surgery on the right and left knees (the right knee having a bone graft) November 1976 prior to enlisting. He further notes that he had benign tumors in his knees but did not know of them at the time of enlisting. He contends that regardless of the surgeries and the tumors, he had completely healed before enlisting and had no pain in either knee. He further asserts that as a result of his military service, his right and left legs and knees swelled up “like never before” with “excruciating pain” causing a disability in both knees. The Veteran's service treatment records (STR) include a March 1977 examination which notes mild pes cavus, but nothing about his right or left knee surgeries or prior conditions. The Veteran's post-service treatment records include treatment for degenerative joint disease and patella knee pain in the right and left knees. Because the evidence of record suggests a possible association between the Veteran's right and left pain and his service, such is sufficient to satisfy the low threshold standard in McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), and a remand for an examination is necessary. Furthermore, because the Veteran has raised the possibility of a preexisting condition, the issue of the presumption of soundness must be addressed. See Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). Under this statutory presumption, except for defects, infirmities or disorders noted on an entrance examination, every veteran is generally presumed to have been in sound condition when examined, accepted and enrolled for service. 38 U.S.C. § 1111. The presumption applies to this case because the service treatment records do not include a notation of the Veteran’s right and left knee conditions on the entrance examination. "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). On remand, the RO should obtain a new medical opinion as to whether any current right and left knee disability clearly and unmistakably pre-existed service and, if so, whether there is clear and unmistakable evidence establishing that the disorders were not aggravated by service. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify any outstanding treatment or medical records (to include any private, VA, or military) for the right and left knee disabilities. With any assistance required from the Veteran, make appropriate efforts to obtain any outstanding treatment records identified by the Veteran. 2. Schedule the Veteran for a VA right and left knee examination. Because of the nature of the claims, the examiner must examine each knee separately, specifically for the right knee, the examiner must refer to the Medical Board Report of April 1977 and the Veteran’s lay statements concerning the right knee bone graft. For both knees, the right and the left knees, the examiner must refer to the Veteran’s lay statements concerning onset, the surgery in November 1976, and symptomatology of each knee. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. For the RIGHT KNEE: The examiner must address whether the Veteran currently has a right knee disability. The examiner is also requested to review all records, specifically the Medical Board Report from April 1977 and respond to the following for the right knee pain: (a) What is the current diagnosis for the right knee at this time? (b) Is there clear and unmistakable evidence that this or any other right knee disorder existed prior to entry into service? (c) If so, is there clear and unmistakable evidence that this disorder did not undergo a permanent increase in severity (aggravation)? (d) If there is not clear and unmistakable evidence that the disorder did preexisted service, is it as least as likely as not (50 percent probability or higher) that the disorder existed during service or is related to any in-service event or occurrence? The examiner is specifically asked to reconcile previous diagnoses, discussions, reports, and treatments, of the right knee disorder symptoms or conditions in the medical record with the opinion that the examiner ultimately puts forth. The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report. For the LEFT KNEE: The examiner must address whether the Veteran currently has a left knee disability. The examiner is also requested to review all records and respond to the following for the left knee pain: (a) What is the current diagnosis for the left knee at this time? (b) Is there clear and unmistakable evidence that this or any other left knee disorder existed prior to entry into service? (c) If so, is there clear and unmistakable evidence that this disorder did not undergo a permanent increase in severity (aggravation)? (d) If there is not clear and unmistakable evidence that the disorder did not preexist service, is it as least as likely as not (50 percent probability or higher) that the disorder existed during service or is related to any in-service event or occurrence? The examiner is specifically asked to reconcile previous diagnoses, discussions, reports, and treatments, of the left knee disorder symptoms or conditions in the medical record with the opinion that the examiner ultimately puts forth. The examiner must provide all findings, along with a complete rationale for his or her opinions, in the examination report. The RO must ensure that the requested examination report is in compliance with the directives of this remand. If it is deficient in any manner, the RO must implement corrective procedures at once. 3. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Jones Council, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.