Citation Nr: 21061837 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-08 723 DATE: October 5, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran had active service from August 1996 to October 1996. The Veteran requested, and was scheduled for, a hearing with the Board of Veterans' Appeals (Board) on August 13, 2021. However, he did not request postponement of the hearing, did not appear for the hearing, and did not request for the hearing to be rescheduled. As such, his hearing request is deemed withdrawn, and the case may be adjudicated by the Board. 38 C.F.R. § 20.704(d). The Veteran was previously represented in this appeal by a private attorney, who is no longer accredited to represent claimants before VA. The Veteran has not appointed a new representative and is proceeding in his appeal pro se. The Veteran underwent a VA knee conditions examination in September 2012 with a subsequent addendum opinion rendered in March 2013. The examiners opined against service connection for the Veteran's "current knee condition," because they found that he had a pre-existing knee disability in service that was not aggravated beyond its natural progression in service. However, it is unclear from both the September 2012 VA examination report and subsequent March 2013 addendum opinion what "current knee condition" the examiners were considering. The 2012 VA examination report lists the Veteran as having ever been diagnosed with only two knee disabilitiesa right knee patella fracture in 1989 and a right knee blunt trauma in 1996. This examination report also includes imaging findings taken on examination which showed that his right knee was "normal" and that there was no evidence of any acute fracture or dislocation, significant degenerative joint disease, or any discrete periarticular soft tissue abnormalities. There are also no medical treatment records related to his right knee of record, and he reported to the VA examiner that he had not sought post-service treatment for his right knee symptoms. Without a clear indication of what, if any, current right knee condition was being considered as related to service, these opinions are insufficient. As such, a new VA examination is needed to determine whether the Veteran has a current diagnosable right knee disability or pain amounting to a functional limitation in earning capacity to obtain an appropriate etiological opinion, if needed, before the Board can decide his claim. Also, insofar as the VA examiners treated this case as one involving a pre-existing condition which was not aggravated during service, the Board disagrees. Contrary to the 2012 VA examiner's rationale, the Veteran's April 1996 enlistment records do not show that he had a patella stress fracture of his right knee when he entered service. Rather, imaging study results at that time reflected the presence of "a radiolucent line through the upper outer quadrant of the patella that could be bipartite patella, but cannot rule out fracture. Clinical correlation and bone scan could be helpful to confirm or deny fractures." An orthopedic consultation two days later was noted as having been requested on the Veteran's enlistment medical examination. The doctor concluded that the Veteran had a "healed fracture of the right knee with no residuals." It was not until the Veteran's right knee became symptomatic in service and treatment was sought that he was given a right knee bone scan. At that time, in September 1996, the bone scan revealed a right knee patella stress fracture. The September 1996 Medical Board findings even noted that the Veteran had reinjured his knee in service and that he was medically released from service due to his right knee patella stress fracture. In light of the above, the Board finds that presumption of soundness has not been rebutted by the inadequate VA examiners' opinions (which were based on inaccurate facts) or by the medical evidence of record, as the Veteran's right patella stress fracture has not been shown to have clearly and unmistakably pre-existed his service. Thus, regardless of what may have happened with regard to the Veteran's right knee prior to service, upon entry into service, his prior right knee was found to be healed with no residuals. As such, in this case, the Board finds it improper to request any further opinions regarding a pre-existing right knee disability and any aggravation of such a disability in service. Rather, the examiner should opine as to whether any current right knee disability is related to the in-service injury/fracture incurred, or to any other in-service event. Accordingly, this matter is REMANDED for the following: Schedule the Veteran for a VA examination to determine the nature and etiology of any current or previously-diagnosed right knee disability, to include any such condition manifested by chronic pain. The examiner should review the entire claims file and conduct all necessary tests and studies, to include appropriate diagnostic imaging studies of the right knee, and provide the following requested opinions: (a.) Does the Veteran have a diagnosable right knee disability manifested by pain on current examination or at any time during the pendency of the appeal (from March 2012 t the present)? (b.) If the Veteran does not have a diagnosed right knee disability manifested by pain on current examination or at any time during the current appeal, is his right knee condition characterized by pain that reaches the level of functional impairment of earning capacity? (c.) If the Veteran has either a diagnosed disability of the right knee or an undiagnosed right knee disability manifested by pain that reaches the level of functional impairment of earning capacity, the examiner should also answer the following: Is it at least as likely as not (i.e., 50 percent probability or greater) that such right knee disability was related to any incident of active service, to include the right patella stress fracture the Veteran sustained in service? 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. A rationale 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. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a VA medical examination may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and (CONTINUED ON NEXT PAGE) argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Davidoski, 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.