Citation Nr: 21063760 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-55 232 DATE: October 15, 2021 REMANDED Entitlement to service connection for a left knee strain with patellofemoral syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1985 to September 1989, June 1992 to August 1992, May 1993 to August 1993, and October 2005 to October 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran presented testimony at a Board hearing in July 2021. A transcript of the hearing is associated with the Veteran's claims folder. Entitlement to service connection for a left knee strain with patellofemoral syndrome is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In May 2016 the Veteran was afforded a VA knee and lower leg examination, wherein a VA examiner opined that the Veteran's left knee disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. (5/16/2016, C&P Exam, p. 3). The Board finds that the May 2016 VA examiner failed to properly apply the presumption of soundness. A veteran is presumed to be in sound condition when examined and accepted into the service except for defects or disorders noted when examined and accepted for service. 38 U.S.C. §§ 1111, 1137. To rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Anderson v. West, 12 Vet. App. 254, 258 (1999) (noting that the "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than that of "clear and unmistakable evidence"). That is, the standard of proof for rebutting the presumption of soundness is not merely evidence that is "cogent and compelling, i.e., a sufficient showing, but evidence that is clear and unmistakable, i.e., undebatable . . .." Id. at 261. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003) (internal citations omitted). In the present case, no left knee defects or disorders were noted during the Veteran's October 1984 enlistment examination. (1/21/2016, STR Medical, p. 22, 28). As to whether VA has produced evidence sufficient to rebut the presumption of sound condition, the RO indicated in a medical opinion request that the Veteran's service treatment records indicate that he first complained of left knee pain in 1996. While the 1996 complaints predate his final period of active-duty service, which began in 2005, by 1996 the Veteran had completed three distinct periods of active-duty service, from September 1985 to September 1989, June 1992 to August 1992, and May 1993 to August 1993. As such, the Board finds that there is not clear and unmistakable evidence that his left knee disability preexisted the aforementioned periods of active-duty service, and therefore, the presumption of sound condition applies to the case at hand. Given that the May 2016 examiner failed to apply the presumption of sound condition, the Board finds that the examination is inadequate for evaluation purposes. Therefore, the claim must be remanded for a new VA examination and medical opinion. In rendering this opinion, the Board acknowledges a separate May 2016 VA medical opinion, wherein a VA examiner opined that the Veteran's left and right knee disabilities are due to his active-duty service. (5/12/2016, C&P Exam, p. 13). The examiner indicated that the Veteran complained of bilateral knee conditions beginning while on active military duty. The Veteran's service treatment records confirm that he suffered a right knee MCL strain in February 1989, during his initial period of active-duty service, but the first mention of left (or bilateral) knee pain was in May 1996 during a period of non-active-duty service. (7/18/2018, STR Medical, p. 29); (5/4/1999, STR Medical, p. 95). It is unclear if the "complaints" the May 2016 examiner referenced are related to the February 1989 right knee MCL strain, in which case the examiner's opinion was based on an inaccurate factual premise in regard to the left knee, or if the examiner erroneously believed that the Veteran was on active duty at the time of the May 1996 bilateral knee complaints. In either case, the opinion is inadequate as it relates to establishing service connection for the left knee. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from May 2021 to the present. 2. Schedule the Veteran for a VA examination for his left knee disability. The examiner must review the claims file and provide a response to the following: (a.) Is the Veteran's left knee disability at least as likely as not related to service? (b.) Is the Veteran's left knee disability at least as likely as not proximately due to his right knee disability? (c.) Is the Veteran's left knee disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his right knee disability? If aggravation is found, the examiner should attempt to identify the baseline level of disability prior to such aggravation In rendering the requested opinions, the examiner must assume that the Veteran was in sound condition at the time of his September 1985 enlistment. Further, when considering the relationship between his left and right knee disabilities, the examiner must address the impact, if any, his altered gait had on the development or aggravation of his left knee disability. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.