Citation Nr: 20036745 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 18-41 485 DATE: May 28, 2020 ORDER New and material evidence having been received, the previously denied claim of service connection for residuals of a left tibia fracture is reopened. REMANDED Service connection for residuals of a left tibia fracture.   REASONS FOR REMAND The Veteran served on active duty from May 3, 1982, to May 20, 1982. The case is on appeal from a May 2016 rating decision. 1. Whether new and material evidence has been received to reopen the previously denied claim of service connection for residuals of a left tibia fracture. By a February 1983 rating decision, a claim of service connection for residuals of a left tibia fracture was denied on the basis of no service aggravation of a preexisting disability. The Veteran was notified of the decision by letter in March 1983. A timely notice of disagreement (NOD) was received in June 1983. Accordingly, a statement of the case (SOC) was issued in July 1983, which was mailed to his then current mailing address. Thereafter, nothing further regarding the claim was received until the present claim to reopen in December 2015. No new evidence or VA Form 9 to perfect his appeal was received by VA within sixty days from the July 1983 SOC, or within one year of the issuance of the February 1983 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In an August 2018 statement submitted along with a VA Form 9, the Veteran indicated that before basic training he did not have any problems with his left leg as he was able to play sports all through his high school. He added that the pain and swelling in his knee have been present ever since his military training. The Board finds that new and material evidence has been submitted so that the previously denied claim of service connection for residuals of a left tibia fracture is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). See also May 2017 VA examination (symptoms of pain, swelling and instability occurred during military training).   2. Service connection for residuals of a left tibia fracture. For the reopened claim, the Veteran contends that service connection for residuals of a left tibia fracture is warranted as the condition was aggravated by his military service. First, there is a question as to whether the present claim is one of direct service connection or service aggravation of a preexisting disability. Service treatment records (STRs) contain a January 1982 report of medical history at entrance. The Veteran reported that he was “in very good health.” Notwithstanding, the Veteran ticked the box indicating previous bone fractures and recalled having surgery on his knee when he was 6 years old. The corresponding entrance examination had the lower extremities box ticked as normal. However, in the summary of defects and diagnoses, the examiner wrote “no abnormalities noted,” but also “prior surgery of left knee area but no complications.” A veteran is presumed to be in sound condition when examined, accepted, and enrolled for service, except for the disorders noted at time of the examination. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A history provided at entrance by the Veteran in and of itself is not a notation. See 38 C.F.R. § 3.304(b)(1); Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Here, there is more than a standalone history of a pre-existing left leg/knee fracture with surgery as the service entrance examiner also recorded this condition on the examination report in the defects and diagnoses section. While the examiner essentially found the condition to have no abnormalities and the area of the body normal for enlistment, the Board finds that this information combined accounts for a noted pre-existing condition. Thus, this case is one of service aggravation. For service aggravation cases, s preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during that 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; 38 C.F.R. § 3.306. Based on the above, although the Veteran had a preexisting condition, the baseline is essentially normal at time of entrance. Shortly after the Veteran began service, in May 1982, he sought treatment for pain, swelling and instability of his left knee exacerbated by military training. The Veteran then confirmed a history of left knee trauma at age 6 for which he underwent surgery. See also May 11, 1982 separation medical examination. Examination and laboratory findings revealed healed surgical scars in the medial and lateral aspect of the knee and prominent valgus deformity of the left tibia with resultant 1+ Lachman and anterior drawer. The Veteran was then diagnosed with malunion of tibial fracture with instability of the left knee. See May 10, 1982 progress notes. On the same date, an acute medical care entry reflects that the reported pain was secondary to the old injury shown by x-rays. Within a year of service, the Veteran underwent a February 1983 VA examination in connection with the earlier claim. The diagnose were mild, left genu valgus and a history of residuals injury to the left knee, which was also shown on x-ray. More recently, the Veteran was afforded a VA examination in May 2016. The examination report includes diagnoses of knee strain and knee joint osteoarthritis. The Veteran reported that at age 6 a horse fell on him. The Veteran added that he recovered and did fine thereafter as he was able to play football in high school and did fine with this. The examiner noted that the Veteran injured the left knee during service and started having symptoms of pain, swelling and instability that required treatment in May 1982. The examiner further noted that the Veteran continues to experience the same symptoms. Nonetheless, opined that the claimed disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by the Veteran’s service. In an August 2018 lay statement, the Veteran asserted that prior to his military service he “was very athletic all [through] high school and was able to play football and all sports with no problems.” The Veteran indicated that since the in-service injury he has experienced “nothing but pain and trouble” with his left knee. See also August 2018 VA Form 9 (since the military, I have continually had problems with my left leg. Before the military I had no problems with my leg) and August 2016 NOD (the Veteran stated that his preexisting left tibia fracture was aggravated during basic training). The Board finds that the May 2016 VA opinion is not entirely sufficient to decide the Veteran’s claim at this time. To that effect, while the VA examiner acknowledged in-service treatment received for pain and swelling of the left knee area, the examiner did not address whether there was in fact an increase in severity that was more than temporary in nature, which is a question of particular relevance given the Veteran’s statements suggesting an asymptomatic preexisting injury and an onset of symptoms ever since the in-service injury. See Hunt v. Derwinski, 1 Vet. App. 292 (1991) (temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened). If there was a non-temporary increase in severity, then the presumption of aggravation would attache. The burden would shift to the government to show that the increase was due to the natural progress of the disease. Given the Veteran’s statements showing some indication of a preexisting, but asymptomatic residuals of a left tibia fracture, his statements as to the onset of symptoms ever since his injury during basic training and the overall evidence suggesting the possible aggravation of a preexisting disability, the Board finds that a remand is warranted for a new VA examination and opinion to assess these aspects of the claim. In light of the remand, relevant VA and private treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain any available VA treatment records. 2. Request from the Veteran any available private treatment records. 3. Thereafter, schedule the Veteran for a VA examination (or telehealth interview, records review, etc., if an in-person examination is not feasible) by an appropriate medical professional with respect to the residuals of a left tibia fracture claim. Any clinically indicated diagnostic testing should be performed. The examiner should first identify the Veteran’s residuals of a left tibia fracture, to include left knee strain or left knee joint osteoarthritis. For any identified residual(s), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that there was an increase in severity, which was more than a temporary flare-up, during service. If so, the examiner should then provide an opinion as to whether it is clear and unmistakable (i.e., undebatable from a medical standpoint) that the increase in severity was due to the natural progress of the disease. (Continued on the next page)   Consideration should be given to: (1) the Veteran’s statements as to the similarity of the symptoms experienced in service to those currently experienced; (2) the Veteran’s statements as to his capability to play sports through high school without any problems; and (3) the Veteran’s statements as to the symptoms he has continuously experienced ever since separation from service. A complete rationale or explanation should be provided for any opinion reached. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.