Citation Nr: A19001586 Decision Date: 09/26/19 Archive Date: 09/26/19 DOCKET NO. 190325-6724 DATE: September 26, 2019 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1964 to June 1967. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) (to be codified as amended in scattered sections of 38 U.S.C.). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review on or after February 19, 2019. As this case is an appeal of a February 28, 2019, rating decision, this remand has been written consistent with the new AMA framework. In June 2019, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) – electing direct review by the Board of the same evidence the local regional office (RO) considered when denying the claim. However, when, as here, there are pre-decisional, duty-to-assist, errors it is permissible for the Board to have them corrected before deciding the claim on appeal.   Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he has a right knee disability from an injury in service. Specifically, he reports injuring his right knee jumping off a deuce and a half. Under 38 U.S.C. § 1111 (and interpreting caselaw), a Veteran is entitled to a presumption of soundness on entry into service with respect to any disability not “noted” on the service entrance examination report. And if a disability not noted on service entrance becomes manifest during service, and the presumption of soundness on entry in service is rebutted, the veteran is entitled to a further presumption that the disability was aggravated by service. Clear and unmistakable evidence is required to rebut each of these presumptions. Although the Veteran’s enlistment report of medical history indicates he had pulled a ligament in his right knee a year earlier; only conditions actually recorded in the report of medical examination are considered to be “noted” for purposes of rebutting the presumption of soundness at time of entry into service. Here, a right knee disability was not noted during his entrance examination. 38 C.F.R. § 3.304(b). Significantly, in the physician’s summary section of the report of medical history, the examiner confirmed the Veteran’s prior right knee injury did not have any residuals (sequelae). Thus, it must be presumed the Veteran’s right knee was physically sound when entering service. In this circumstance, to rebut this presumption of soundness, there must be clear and unmistakable evidence of pre-existing right knee disability and clear and unmistakable evidence the pre-existing right knee disability was not aggravated during or by the Veteran’s service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), On December 2018 VA examination, the examiner determined that the Veteran’s current right knee disability was not related to his service – noting the Veteran’s right knee injury preexisted his service. This VA examiner stated that, while the Veteran was seen for transient right knee pain during service, there were no abnormalities. This VA examiner further noted that there is no evidence of chronicity of care to suggest aggravation of the pre-existing right knee injury during service. The Board finds that VA opinion inadequate for adjudication purposes, however. Since, as explained, it must be presumed the Veteran’s right knee was sound when entering service, there must be more definitive (clear and unmistakable) indication, not only of pre-existing right knee disability, but also of no aggravation in service. Here, the opinion does not reflect consideration of the Veteran’s reports of pain during service and of continued pain and reduced range of motion since service. Moreover, “chronicity of care” is not a prerequisite to aggravation of a pre-existing disability; instead, the regulations – including 38 C.F.R. § 3.303(b) – require “continuity of symptoms”. Therefore, a medical opinion addressing all medical questions presented, and applying the correct legal standard, is needed. The matter is REMANDED for the following action: 1. Obtain supplemental comment (an addendum opinion) concerning the etiology of the Veteran’s current right knee disability. Responses are still needed to the following: (a) Is there clear and unmistakable evidence the Veteran’s right knee disability pre-existed his active military service from June 1964 to June 1967. (b) If there is, is there also clear and unmistakable evidence this pre-existing right knee disability was NOT aggravated during or by his service, meaning not worsened at all or not worsened beyond its natural progression.   (c) If the right knee disability is NOT found to have clearly and unmistakably existed prior to the Veteran’s service and clearly and unmistakably NOT to have been aggravated by his service, the examiner should opine on whether it is at least as likely as not this right knee disability, instead, incepted during the Veteran’s service, or, if involving arthritis, within a year of his discharge, or is otherwise related or attributable to his service. * The term “as likely as not” means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation or the conclusion as it is to find against it. * “Clear and unmistakable” evidence is a more formidable evidentiary burden than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (explaining that the “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of “clear and unmistakable” evidence). It is an “onerous” evidentiary standard, requiring that the pre-existence of a condition and the non-aggravation result be “undebatable.” Cotant v. Principi, 17 Vet. App. 116, 131 (2003), citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).   2. Ensure that the supplemental report complies with (answers the questions posed in) this additional remand. If it does not, return the report to the examiner for all needed additional information. 38 C.F.R. § 4.2. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Poindexter 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.