Citation Nr: 21004033 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 06-28 631 DATE: January 25, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1972 to October 1974. He received the National Defense Service Medal, Sharpshooter Badge with M-16 rifle bar, and Expert Badge with hand grenade bar. In April 2012, the Veteran was afforded a VA examination to determine whether his right knee disability was caused or aggravated by his active duty service. The examining clinician indicated that there was clear and unmistakable evidence that the Veteran’s right knee condition existed prior to enlistment. See April 2013 CAPRI, pp. 24-25. However, the examiner did not indicate whether there was clear and unmistakable evidence that the Veteran’s disability was not aggravated by his service. While the Veteran noted a history of a right knee operation on his pre-induction history, see June 1978 STRs, p. 14, his disability was not severe enough to preclude his entrance into service. During service, the Veteran complained of knee pain and was subsequently placed on a permanent profile. See June 1978 STRs, pp. 7-8. This suggests that the disability progressed during his active duty and implicates VA’s presumption of aggravation. In this regard, the Board notes that pursuant to 38 U.S.C. § 1153 (2012), “[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.” See also 38 C.F.R. § 3.306(a) (2019). When an increase in severity during service is shown, clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306(b) (2019); see also Horn v. Shinseki, 25 Vet. App. 231, 235 n.5 (2011) (noting that the statutory presumption of aggravation requires that, when a condition that was noted on entry worsened in service, the burden shifts to the Secretary to establish, with clear and unmistakable evidence, that the worsening was due to the natural progression of the disease). On remand, a new opinion should be obtained that considers the change in the Veteran’s disability during his service, explicitly addresses whether there is clear and unmistakable evidence that the disability was not aggravated by service, and provides an adequate rationale. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additionally, the Board notes that there is correspondence and other evidence referenced in the April 2013, May 2013 and April 2014 supplemental statements of the case that are not part of the electronic claims file. Specifically, a November 2010 VA development letter, a statement from the Veteran with copies and photographs from his high school yearbook, and statements from the Veteran dated in June and August 2013 are referenced in the supplemental statements of the case but are not available in the electronic claims file. On remand, the Agency of Original Jurisdiction should take appropriate steps to associate these documents with the Veteran’s electronic claims file. The matters are REMANDED for the following action: 1. Take appropriate steps to associate the evidence listed in the April 2013, May 2013 and April 2014 supplemental statements of the case with the Veteran’s electronic claims file. 2. Obtain an opinion that addresses the nature and etiology of the Veteran’s right knee disability. If deemed necessary by the examiner, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion and a supporting rationale that address the following: (a) Is it clear and unmistakable (i.e., manifest, obvious, or undebatable) that a right knee disability existed prior to the Veteran’s entry into service? (b) If it is found that the Veteran’s right knee disability clearly and unmistakably preexisted the Veteran’s service, is it clear and unmistakable that such disability did not increase in severity during service beyond the natural progress of the condition? The examiner should address the Veteran’s in-service knee pain and placement on a permanent profile. See June 1978 STRs, pp. 7-8. (Continued on the next page)   (c) If it is determined that the Veteran’s disability did not clearly and unmistakably preexist his service, is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current right knee disability was incurred in, aggravated by, or is otherwise etiologically related to the Veteran’s active duty service? The examiner is advised that the Veteran is competent to report his history and symptoms and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, 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.