Citation Nr: 21001338 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 13-36 349 DATE: January 7, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1972 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which is the Agency of Original Jurisdiction (AOJ). This claim was previously before the Board in November 2017, when it was remanded to ensure that VA fulfilled its duty to assist the Veteran. The Board’s prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. Entitlement to service connection for a left knee disability is remanded. 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). At the Veteran’s July 1971 entrance examination, no defect or disorder was noted, to include any defect or disorder pertaining to the left leg. 38 C.F.R. § 3.304(b) (only where a condition is recorded in an examination report is it presumed to preexist service). Thus, the Veteran is presumed sound, unless VA demonstrates by clear and unmistakable evidence that the defect or disorder preexisted service and that the disorder was not aggravated by service. 38C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999) (clear and convincing burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Cotant v. West, 17 Vet. App. 116 (2003). In the November 2017 Board remand the Board found that AOJ’s reliance on a February 11, 1972, medical board evaluation and a February 2017 VA medical opinion was in error. Specifically, the February 11, 1972, medical board evaluation merely indicated with an “X” that the Veteran's left knee disability did not occur in the line of duty, existed prior to enlistment, and was not aggravated by service. No rationale was provided. Horn v. Shinseki, 25 Vet. App. 231, 238-42 (2012). The Board found that, standing alone, the report of the medical board was insufficient to rebut the presumption of sound condition. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008). Further, the February 2017 VA examiner did not explain the reason(s) for the determination that the Veteran’s left knee disability was considered to pre-exist service. Pursuant to the November 2017 remand the Veteran was provided with a VA medical examination in August 2020. However, like the February 2017 opinion, the August 2020 opinion is inadequate to adjudicate the claim because such is internally inconsistent. The August 2020 examiner opined that the Veteran’s complaints of swelling of the left knee during service resulted in medical board processing for separation for a disability existing prior to service, and that there is no evidence of aggravation during the time the Veteran was in service. However, the examiner also included a contradictory opinion on aggravation. On the examination worksheet, the examiner selected the option that the claimed disability, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service injury, or event. The rationale which the examiner provided with this selection included a statement that the Veteran had a preexisting disability with no evidence of aggravation. Further, the examiner relied on the medical board conclusion that the Veteran’s disability existed prior to service; however, the Board has already determined that the medical board is not sufficient to rebut the presumption of soundness. As examiner did not provide an adequate rationale as to the etiology of the Veteran’s left knee disability, and relied upon the medical board, which had already been found to be inadequate, the August 2020 examination is inadequate to adjudicate the Veteran’s claim. Accordingly, in light of the insufficient opinions of record, the Board finds that remand is warranted for a new VA examination and opinion to assess the etiology of the Veteran’s left knee disability. Barr v. Nicholson, 21 Vet. App. 303 (2007) (When VA provides a medical examination or opinion for the issue of service connection, whether or not obligated to do so, the duty to assist requires that it be adequate); 38 C.F.R. § 3.159(c)(4). The matters are REMANDED for the following action: 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from VA or private health care providers. If VA attempts to obtain any outstanding records which are unavailable, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. After all available records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the nature and etiology of the Veteran’s left knee disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this remand, must be made available for review of the Veteran’s pertinent medical history. The examiner is asked to respond to the following: (a.) The examiner must opine as to whether there is clear and unmistakable (undebatable) evidence whether the Veteran’s left knee disability preexisted his entrance to service. The examiner must discuss sufficiently the evidence supporting such preexistence. (b.) If there is clear and unmistakable evidence that the Veteran’s left knee disability preexisted service, the examiner should then opine as to whether there is clear and unmistakable (undebatable) evidence that the preexisting left knee disability was not aggravated by service or any incident of service beyond its natural progression. The examiner must discuss sufficiently the evidence supporting this finding. (c.) If there is no clear and unmistakable evidence that the left knee disability preexisted service, or if it did, that was not aggravated during service, the examiner is asked whether it is at least as likely as not (i.e., 50 percent probability or greater) that the left knee disability is directly related to service, to include whether the Veteran’s left knee disability had its onset within one year of the Veteran’s service discharge. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. Rationales for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. After completing all indicated development, the claim for service connection for a left knee disability should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and provided with appropriate opportunity to respond. Thereafter, the appeal must be returned to the Board for appellate review. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.