Citation Nr: 21004451 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-30 771 DATE: January 27, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served from October 1972 to December 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board denied the issue of entitlement to service connection for a right knee disability. The Veteran appealed the Board’s decision to the Court of Appeals for Veterans Claims (Court). In a July 2020 Order, pursuant to a Joint Motion for Remand (JMR) filed by the Veteran’s attorney and a representative of VA’s office of General Counsel (parties), the Court vacated and remanded the Board’s decision denying entitlement to service connection for a right knee disability. 1. Entitlement to service connection for a right knee disability The Veteran contends that he suffers from a right knee disability as a result of an injury in service. In the August 2019 Board decision noted above, the Board found that the Veteran had a pre-existing right knee disability that was not aggravated by his service. The Veteran contends that he did not have a pre-exiting right knee disability upon entrance into service, and that he injured his knee while in service. See September 2014 notice of disagreement. In the June 2020 JMR, the parties agreed that the Board erred by providing an inadequate statement of reasons and bases when it did not adequately address the two conflicting reports of medical examination in the Veteran’s service treatment records and evaluate the credibility of lay statements in light of the conflicting service treatment records. The parties agreed that a remand was required for the Board to provide adequate statements of reasons or bases as to the adequacy of the VA examinations following the Board’s discussion of the reports of medical examination and credibility determinations of the lay statements. The Veteran’s service treatment records contain two induction examinations conducted in August 1972. The first one indicates normal clinical results for the lower extremities, with a note stating that the right “knee gave out- not for past year.” The Veteran was noted to be qualified for induction in this examination. The second examination, also conducted in August 1972, indicates that the “ligaments are intact in both knees with no cruciate laxity. McMurray’s is present over the lateral joint line of the right knee.” The Veteran was noted to have a tear in his right lateral meniscus of his knee. The examiner noted that the Veteran was not qualified for induction and he was recommended for separation. In November 1972, the Veteran was noted to have “a history of injury to both knees while playing high school football at the age of 17.” The Veteran reported that “he had a torn meniscus in the right knee by his private physician, and that he needed surgery to repair the situation.” X-ray results were unremarkable, and the Veteran was noted to have a right lateral meniscus tear of the knee. The Medical Board recommended separation from service. The Veteran was provided with a VA examination in May 2014 where he reported that “when he played basketball in high school his right knee would get sore.” The Veteran reported that “he went into basic training and his knee went out.” The VA examiner opined that the Veteran’s condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by his service because “there are no events in the service medical record for the 2 months period in the service that injured his knee.” The examiner added that “there are no medical records to support a current right knee condition.” VA treatment records from November 2014 show a diagnosis for degenerative arthritis in the right knee. In a September 2016 addendum VA opinion, a VA examiner concluded that the Veteran’s right knee disability was not at least as likely as aggravated beyond its natural progression by his period of active duty military service. The examiner stated that while the degenerative changes were present, there was no sign of an aggravation of the right knee condition arising from the military service as it would have occurred with time anyway. Moreover, there were no service records displaying that the Veteran was seen for any injuries or traumatic events, which involved the right knee while on active duty. In a statement submitted in January 2017, a fellow servicemember stated that he witnessed the Veteran “stumble and fall” while in service. The servicemember noted that “when we returned to the barracks, he showed me his knee and it had swollen to twice its normal size.” He added that the Veteran “was confined to barracks as barracks guard until he was discharged.” In a statement submitted in March 2018, the Veteran’s spouse stated that she was engaged to the Veteran when he was drafted in October 1972 and he “was physically fit,” at the time. She noted that he never complained “about his legs or knees prior to the service.” She added that “after two months in basic training he suffered an injury to his right knee.” The Veteran’s spouse indicated that he “came home limping and wearing a knee brace,” adding that “it has been an ongoing condition since the initial injury.” As there are conflicting induction examinations regarding whether the Veteran had a pre-existing disability upon entering service, the Board finds that a medical opinion addressing whether the Veteran had a pre-existing right knee disability is required in this case. Upon remand, the medical opinion should address the lay statements of record indicating that the Veteran entered service without a right knee disability and suffered an injury while in service. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician regarding any diagnosed right knee disability. The examiner should address the following questions: a) Is it clear and unmistakable (i.e. the evidence is obvious) that the Veteran had a right knee disability prior to his service? The examiner should consider the following: i) The first August 1972 induction examination indicating normal clinical results for the lower extremities, with a note stating that the right “knee gave out- not for past year.” ii) The second August 1972 examination indicating that the “ligaments are intact in both knees with no cruciate laxity. McMurray’s is present over the lateral joint line of the right knee.” The Veteran was also noted to have a tear in his right lateral meniscus of his knee. iii) The March 2018 statement from the Veteran’s spouse noting that he did not complain of a right knee disability prior to service. b) If the right knee disability clearly and unmistakably existed prior to service, is it clear and unmistakable that the right knee disability WAS NOT aggravated by service? In other words, is it clear and unmistakable that any worsening was acute and transitory or was due to the natural progression of the disease? In this context, aggravation is defined as a permanent worsening beyond the natural progression of the disability. c) If it is not clear and unmistakable that a right knee disability existed at service entrance, is it at least as likely as not (i.e., probability of 50 percent or higher) that the Veteran’s right knee disability is related to an in-service disease, event, or injury? The examiner should consider the lay statements submitted in January 2017 and March 2018 from a fellow servicemember and the Veteran’s wife describing an in-service injury. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. However, if there is a medical reason to doubt its veracity, the examiner should explain why the Veteran’s statements or recollection are inconsistent with the evidence in this case, medical principles relating to the onset and progress of the disease, the specific findings in the record, and/or your professional judgment. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morrad, 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.