Citation Nr: 21001682 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-16 835 DATE: January 11, 2021 REMANDED Entitlement to service connection for hereditary exostosis is remanded. Entitlement to service connection for a left hip disability, to include as secondary to hereditary exostosis, is remanded. Entitlement to service connection for a right hip disability, to include as secondary to hereditary exostosis, is remanded. Entitlement to service connection for a left knee disability, to include as secondary to hereditary exostosis, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to hereditary exostosis, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2006 to December 2007. He also had a period of active duty for training (ACDUTRA) in August 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters in June 2018 for further development. The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2017. A transcript of the hearing is of record. 1. Entitlement to service connection for hereditary exostosis is remanded. 2. Entitlement to service connection for a left hip disability, to include as secondary to hereditary exostosis, is remanded. 3. Entitlement to service connection for a right hip disability, to include as secondary to hereditary exostosis, is remanded. 4. Entitlement to service connection for a left knee disability, to include as secondary to hereditary exostosis, is remanded. 5. Entitlement to service connection for a right knee disability, to include as secondary to hereditary exostosis, is remanded. The Veteran claims service connection for exostosis as a condition in its own right, and for exostosis of the bilateral knees and hips. An exostosis is a “benign bony growth projecting outward from the surface of a bone.” Harre v. Shinseki, 2012 U.S. App. Vet. Claims LEXIS 1384, Note 1 (quoting DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 660 (32d ed. 2012) (hereinafter DORLAND’S). As shown below, the Veteran has also been found to have osteochondromas of his knees and hips, which, based on the findings in the treatment records, seems to be essentially synonymous with exostosis. In this regard, an osteochondroma is defined as a “benign tumor consisting of projecting adult bone capped by cartilage projecting from the lateral contours of endochondral bones.” Sanders v. McDonald, 2015 U.S. App. Vet. Claims LEXIS 1196, Note 1 (quoting DORLAND’S at 1345). This case presents the complex issue of whether the presumption of soundness or presumption of aggravation applies, or whether neither presumption applies, where there is an enlistment examination dated years prior to the Veteran’s entry into active service, but no standard examination report contemporaneous with that entry, and yet obvious evidence of a pre-existing condition. See 38 U.S.C. §§ 1111, 1153. For purposes of this remand, the Board will assume that the Veteran’s exostosis of the hips and knees that manifested in service was incurred in service, for the reasons that follow. As will be shown below, his right knee exostosis was incurred during the August 2005 period of ACDUTRA, and his subsequent manifestations of exostosis of the bilateral knees and hips were incurred during his period of active service, which commenced in June 2006. The Veteran enlisted in the Army in 2003 through the Reserve Officers’ Training Corps (ROTC) program. He received an ROTC scholarship and attended college at a non-military institution of higher learning. At the time of his enlistment, he underwent an Army examination in December 2003 to determine whether he was medically qualified for an Army ROTC scholarship. He was found to be qualified, and no conditions were noted. The December 2003 report of medical history does note that in 1997 he had left wrist surgery to repair the radius due to a bone growth that was blocking it. He underwent a second surgery of the left wrist in 2000 to remove a metal plate from the first surgery that was no longer needed. He was “now in perfect condition.” In March 2005, while still in college, the Veteran filled out a report of medical history for purposes of commission as an officer and participation in LDAC (Leadership, Development, and Assessment Course). He again reported a history of left wrist surgery in the 1997 and 2000. A stamp at the bottom of the report says: “Medically qualified. No exam required.” The Veteran was ordered to attend cadet training from August 2005 to September 2005. The service treatment records show that around the beginning of that training, he injured his right knee while walking upstairs with a 60-pound pack on his back. The person in front of him had stopped suddenly, and the Veteran had already stepped up on the next step, fully loading his right leg, and had to twist laterally with his foot planted. He felt immediate pain and a pop. He denied having any problems with his knees prior to that time, other than a “knee sprain” when he was much younger, and he did not remember which knee that was. He was initially assessed with a torn meniscus. However, an August 2005 x-ray study instead showed multiple osteochondromas at the right knee. The x-ray study states that these findings, together with similar findings in the left knee and pelvis, and the Veteran’s history of a bony abnormality in the wrist suggests multiple osteocartilaginous exostoses. A November 2005 private magnetic resonance imaging study (MRI) of the right knee confirmed there was no meniscal tear. A September 2005 line of duty determination found that the Veteran’s “medical condition [of the right knee] was in the line of duty.” The Veteran, now in civilian status following the August 2005 training period, underwent surgical excision of multiple osteochondromas of the distal right femur at a private facility. Following a period of rehabilitative physical therapy, a March 2006 private treatment record states that the Veteran had a final checkup for the Army. His knee was doing “pretty well,” although he did get some swelling when he overdid exercise. It was noted that he went running two days earlier and there was no pain or swelling. The ultimate assessment was: “Looks excellent!” A clinician added that the Veteran could engage in “full activity” with “no restrictions.” The service treatment records include a March 2006 “Cadet Action Request,” dated a few months prior to the Veteran’s June 2006 entry onto active duty, which states that he had multiple hereditary exostosis and notes that in December 2005 he underwent surgery to remove bone growths from the right upper leg above the knee. The request was for a medical determination for retention based on the “attached documents.” The Board assumes that the “attached documents” were the private treatment records discussed in the preceding paragraph. The Board notes that this request is dated after the March 2006 private treatment record stating that the Veteran was able to engage in full activity with no restrictions. The service treatment records appear complete, and there is no further examination prior to, or at the time of, the Veteran’s June 2006 entry onto active duty as a commissioned officer. The only exception is a June 2006 optometry examination for purposes of an “accession physical.” There is no indication that any other examination was performed at that time. The Board remanded this case in June 2018 with instructions to search for a potentially missing entrance examination. That search was unavailing. As stated, the service treatment records appear to be otherwise complete. The service treatment records show that by July 2006, about a month after entering service, the Veteran complained of pain in the right upper thigh and lower back since running that morning. He denied trauma or injury. He was diagnosed with a bone neoplasm, and multiple osteochondromas. By August 2006, he was diagnosed with osteochondromas of both hips and knees. An August 2006 whole body scan showed multiple osteochondromas in different areas. A May 2007 x-ray study reflects a diagnosis of hereditary multiple exostoses. The Veteran underwent a Military Evaluation Board (MEB) in May 2007, and was found to be medically disqualified from service due to multiple exostosis “EPTS [existed prior to service], permanently aggravated by service.” A June 2007 Physical Evaluation Board (PEB) Proceedings report finds that the Veteran had hereditary multiple exostosis with chronic pain. There was sufficient evidence to support a finding that the current impairment existed prior to service and was subsequently aggravated by such service, rendering the Veteran unfit. The report adds that this “congenital condition” did not prevent commissioning, but symptoms increased with training activities. The Veteran was honorably discharged from service in December 2007 on medical grounds. As the Veteran’s hereditary exostosis is clearly not a static condition, it does not constitute a congenital or developmental “defect” under VA law, but rather qualifies as a disability eligible for service-connected compensation, notwithstanding its congenital or hereditary origin. See 38 C.F.R. §§ 3.303(c), 4.9 (2014); O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); to The United States Court of Appeals for Veterans Claims (Court) has held that in the “absence of evidence of an examination made contemporaneous with [an individual’s] entry into . . . active duty for training . . . the presumption of sound condition could not apply.” Smith v. Shinseki, 24 Vet. App. 40, 46 (2010). The Court has indicated, in a nonprecedential memorandum decision, that this holding also pertains to regular periods of active duty. See Colon v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 254. When the record of an entrance examination has been lost or destroyed while in government custody, the presumption of sound condition applies. Quirin v. Shinseki, 22 Vet. App. 390, 396, n.5 (2009). Here, as the service treatment records appear complete, there is no indication that there is a missing report of examination made contemporaneous with the Veteran’s June 2006 entry into active duty. The only examination conducted at that time was the optometry examination. As discussed above, efforts to obtain a possibly outstanding entrance examination report have been unsuccessful. The Board also notes that the MEB and PEB reports make no reference to an entrance examination in determining whether the Veteran’s exostosis was a pre-existing condition. That said, it is unclear whether, in the context of the ROTC and delayed entry programs, the December 2003 enlistment examination would constitute an entrance examination for purposes of the presumption. If so, as no abnormalities were noted in that report, the presumption of sound condition would apply. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). It is also unclear whether the Veteran’s private treatment records dated in the months just prior to his active service period could serve the role of an entrance examination. As discussed above, the March 2006 “Cadet Action Request” requests a medical determination for retention due to the Veteran’s history of multiple hereditary exostosis, but it seems such a determination was never done, and there is no subsequent reference to one, including in the MEB and PEB proceedings, where one would expect to find such a reference. Perhaps the March 2006 private treatment record in which a clinician concluded that the Veteran could resume full activity without restrictions had been found to be sufficient for that purpose. Again, that would mean that no abnormalities were noted at entrance. Whatever the case may be—and in light of the benefit-of the-doubt evidentiary standard under 38 U.S.C. § 5107—even if the presumptions of soundness or aggravation do not apply, the evidence clearly shows that the Veteran’s bilateral knee and hip pain due to his exostosis did not manifest until he participated in physical training after commencing active service in June 2006. The PEB and MEB findings that the Veteran’s exostosis was permanently aggravated by service also constitutes probative evidence of such aggravation. Similarly, his right knee symptoms due to exostosis did not manifest until the August 2005 training period, when he twisted his knee while walking up steps with a 60-pound pack. The September 2006 line of duty determination concludes that his right “medical condition” was incurred in line of duty. Accordingly, as the evidence does not show symptoms or disability associated with exostosis when the Veteran entered his period of ACDUTRA in August 2005, and later his period of active service in June 2006, the balance of the evidence supports service incurrence of the manifestations of exostosis during those periods. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The remaining issues then are whether the Veteran has current disabilities associated with his exostosis, including of the left and/or right knees and left and/or right hips, and whether such are related to his in-service manifestations of exostosis. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (setting forth criteria for establishing service connection on a direct basis). A medical opinion on these issues has not been obtained. Moreover, an examination was last performed in April 2008, nearly thirteen years ago. Accordingly, the claims are remanded for a new examination, when considered safe to conduct one, and medical nexus opinions. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Additional records development is also warranted. At the January 2017 hearing, the Veteran testified that he receives medical treatment at the San Antonio Military Medical Center (“SAMC”) (formerly Brooke Army Medical Center). Those records have not been obtained. On remand, the opportunity should be taken to obtain those records, to the extent possible. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain the Veteran’s treatment records from San Antonio Military Medical Center dated since December 2007. 2. Then, arrange for a VA examination and medical nexus opinion regarding the claims for service connection for exostosis, including of the bilateral hips and knees, in accordance with the instructions below. If and when considered safe, schedule the Veteran for an in-person examination to assess whether he has current disabilities associated with his exostosis, including of the left and/or right knees and left and/or right hips. If necessary to avoid undue delay owing to conditions associated with the pandemic, a virtual “telehealth” examination and/or review of the Veteran’s medical records may be conducted instead, if sufficient for the examiner to render a medical nexus opinion, and so long as there is no prejudice to the Veteran’s claims. The claims file must be made available to the examiner review. After reviewing the claims file and, if possible, examining the Veteran, the examiner is asked to render an opinion as to whether it is at least as likely as not (50 percent probability or more) that the Veteran has exostosis and/or other disabilities of the right knee, left knee, right hip, and/or left hip related to the manifestations of exostosis during his August 2005 active duty for training period (ACDUTRA), and his subsequent active service period (from June 2006 to December 2007). In this regard, the Veteran’s right knee exostosis manifested during the August 2005 ACDUTRA when he experienced an onset of symptoms upon twisting his knee while climbing stairs with a heavy pack. His exostosis of the hips and knees was diagnosed during the active service period (beginning June 2006) when the Veteran reported pain in those areas after physical training. The evidence does not show an active exostosis condition on entering either period, and the Veteran was found to be able to engage in “full activity” with “no restrictions” a few months prior to entering active service. The examiner must provide a complete explanation in support of the conclusion reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rutkin, 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.