Citation Nr: 20046876 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 12-13 034 DATE: July 13, 2020 REMANDED Entitlement to service connection for a right knee disability is remanded. Introduction The Veteran served on active duty from January 1983 to February 1983. This matter comes to the Board of Veterans Appeals (Board) on appeal from an August 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a video-conference hearing in August 2015; a transcript is associated with the claims file. The Veteran’s claim for service connection for a right knee disability was most recently denied by the Board in a November 2015 decision. The Veteran filed an appeal of the Board’s decision, and in January 2017, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR), which vacated the Board’s 2015 decision and remanded the matter for further development; a copy of the JMR has been associated with the claims file. In August 2017, the Board remanded the claim to reopen to the RO for additional development of the evidence. The Board finds that on further review, additional service treatment records were submitted in October 2009 and again in December 2014. The additional records included new and pertinent service treatment records discussed below. As such, the claim for service connection will be considered on the merits. without the need for new and material evidence. 38 C.F.R. § 3.156(c). The Veteran seeks service connection for aggravation of a right knee disability. He asserts that his pre-service right knee injury from May 1979 was aggravated by an in-service incident in January 1983, during the first week of basic training at Fort Leonard Wood, Missouri. The STRs show that the Veteran had a pre-existing knee condition. The Veteran indicated that he currently had a “‘trick’” or locked knee,” as well as a history of right knee surgery for repair of a torn ligament after a motor vehicle accident (MVA) in 1979. See January 1983 Report of Medical History. The pre-existing right knee condition was also noted on his January 1983 entrance exam physical. On January 11, 1983, the Veteran was examined for a complaints of right extremity pain with weight bearing and right knee giving out. The Veteran reported a history of surgery after a motor vehicle accident (MVA) for right knee derangement, recurrent instability and effusion. A diagnosis of Internal Derangement of the Knee (IDK) with probably complete Posterior Cruciate Ligament (PCL) tear was noted, the Veteran was placed on limited duty and referred to the Entrance Physical Standards Board. On January 12, 1983 the Entrance Physical Standards Board Proceedings noted that the veteran had a pre-service knee disorder, that eight days after entry into service the veteran complained of right knee pain. Past medical history was noted to be significant for injuries sustained in a motor vehicle accident (MVA) in 1979 where he sustained a dashboard injury to his right knee, had surgical repair on his right knee, but continues to have right knee pain and instability. Physical examination revealed a 3.5 cm atrophy in his right lower extremity as compared to the left—which demonstrates a lack of use, no varus or valgus instability, significant femoral-tibial crepitus on flexion, pseudo-hyperextension of the right knee, and a very obvious drawer sign with no apparent rotary instability. The Veteran was diagnosed with a Posterior Cruciate deficient right knee, placed on inactive duty and medically discharged as unfit for duty. In March 1983 the Veteran filed a Report of Accidental Injury in support of a claim for service connected right knee disability in which the Veteran indicated that while in the process of falling out for formation, one of the soldiers fell in front of him, he tried to cross over him and fell also. After the fall he reported to detail; while on detail his knee began to swell. “The sergeant in charge took me to the company commander who in turn had me to report to the hospital.” See VA Forms 21-4176 & 21-526, dated March 3, 1983. The newly associated STRs include three pages that are, unfortunately, of poor quality and are not entirely legible. Legible portions of the STRs, however, include a document dated January 11, 1983, entitled “Screening Note of Acute Medical Care,” and stamped “FLW Troop Medical Clinic #4.” It records a 10-minute visit for right knee pain, a report of trauma in the past 24 hours, pain described as continuous and present with weight bearing. The Algorithm Summary section noted right knee edema, no open discoloration, normal motion, normal pulses and a difference in circumference. See id. at p.8. The triage evaluation stated as follows: S[ubjective:] Swollen right knee 2nd to giving out this am. S/P Surgery w/ Internal Derangement of Knee pert. Auto Accident 6 mo. ago with recurrent instability with effusion. O[bjective:] 1+ Effusion, with 2+ PC instability. P[lan:] ORTHO for Duty Evaluation and for Brace. See id. at p.14. Another page, dated January 11, 1983, contains a hand-written Orthopedics Consultation, again of poor visual quality, the legible portions indicate the following: post. cruciate ligament instability, recurrent effusion of rt. knee, surgery internal derangement syndrome after auto accident 6 mo. ago. Quest. duty, states may benefit from knee brace. S[ubjective]: 1st week Basic Training, referred as above. Rt. knee giving way 2-3x/day, locking, Now s/p mva w/multiple surgeries splenic repair, hepatic lacerations, dashboard injury to Rt. knee. O[bjective]: Rt. knee free ROM, +1 effusion, 3.5 cm Rt. Quadricep atrophy, no laxity w/valgus/varus stress, lack even stride out, Drawer [illegible], 3+ posterior drawer. Unable to test rotary instability well due to guarding. A[ssess]: Internal Derangement Knee - prob. complete PCL tear P[lan]: To Dr. [Illegible] for Board due to [illegible] for general fitness. cc: PAR 40-501 Cl[illegible] P2-10C (2). See id. at 12. As noted above, the triage clinic (dispensary report) documented a report of trauma in the past 24 hours, evidence of right knee swelling, instability, normal rotation, and a difference in circumference and diagnosed the Veteran with chronic instability. No treatment was given. The Veteran was referred for a duty evaluation and or a brace at the Orthopedic Clinic. The Orthopedic Consult noted that the Veteran complained that his knee was giving way 2-3 times per day with locking. The physician also noted a history of a major car accident, multiple surgeries and a dashboard injury to the right knee. The examination documented 3.5 cm atrophy of the right leg, no laxity with valgus/varus stress, a 3+ posterior drawer, and inability to assess instability well due to guarding. The Veteran has reported that he hurt his knee during a double time march in basic training, when he stumbled over the man in front of him. He reported that he was taken to the base hospital at FLW, where he was told that he was given a medical discharge because of his knee condition. No examination or opinion has been provided on whether the Veteran’s pre-existing right knee disability is related to an in-service event or underwent an in-service aggravation. Accordingly, a remand seeking such an examination and opinion is necessary to determine the nature and etiology of his right knee condition. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records and associate them with the claims file. 2. Thereafter, schedule the Veteran for a VA examination (or a telehealth interview, a review of the record, or other appropriate substitute for an in-person examination, if deemed sufficient in the event that an in-person examination is not feasible) to determine the nature and etiology of his right knee disability. The examiner must be provided the entire record for review. The examiner is asked to respond to the following: Is it at least as likely as not (50% or greater probability) that the Veteran’s pre-existing right knee disability was aggravated (increased in severity) beyond its natural progression during active service? In addition to review of the entire claim’s file, the examiner’s attention is invited to a January 1983 hand-written clinic triage evaluation and hand-written Orthopedic consult for right knee pain. In answering the above question, the examiner should consider the Veteran’s lay statements, including his contention that he hurt his knee in service during a double time march in basic training, when he stumbled over the man in front of him. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.