Citation Nr: 21070572 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 20-10 744 DATE: November 24, 2021 REMANDED Entitlement to service connection for a right knee disorder is remanded. REASONS FOR REMAND The Veteran had active service from June 5, 1964, to June 19, 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned in November 2021. Right Knee Disorder For the Veteran's understanding, VA must analyze his claim under an aggravation framework. That is, if, as here, a preexisting disorder is not "noted" as a defect at service entrance, 38 U.S.C. § 1111 and 38 C.F.R. § 3.304 apply. Under this statute and regulation, the burden is on VA, by clear and unmistakable evidence, to show both a) the disorder preexisted service, and b) the preexisting disorder was not aggravated in or during service. If VA fails on either prong, the case converts back to one of direct service incurrence, i.e., VA will conduct a direct service connection analysis as if there was no preexisting disorder of any kind. Additionally, the Board notes that VA could not obtain the Veteran's service treatment records (STRs) from active service. VA has made reasonable efforts to obtain the missing treatment records. 38 C.F.R. § 3.159(c)(2). In December 2017, the National Personnel Records Center (NPRC) sent VA all the records it possessed. VA, in turn, notified the Veteran in January 2018 that it could not obtain his STRs and that further efforts would be futile. In these circumstances, VA has satisfied the duty to assist the Veteran in prosecuting his claim. However, when a Veteran's STRs are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to carefully consider the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). While the NPRC did not send the STRs, it did send the Veteran's service personnel records (SPRs). Of the SPRs, one is highly relevant: a June 16, 1964, Report of Board of Medical Survey (RBMS). In relevant part, the RBMS says: Examined for enlistment at the AFES, Atlanta, Georgia on 5 June 1964. This nineteen-year-old SH/USN first came to the attention of the Medical Department, USNTC, Great Lakes, Illinois on 9 June 1964 in his initial physical examination during Recruit processing. In the course of the examination he gave history of having had trauma to the right knee which subsequently required surgery. According to the man's own statement he sustained the injury to the knee in September of 1962 and had a surgical procedure performed at that time. He was hospitalized for a period of two months and was in a cast for three months after release from the hospital. The casting was followed by seven months of physical therapy. He was advised by his private physician that he should avoid contact sports. He had done fairly well until recently when the knee began swelling. In addition to swelling he notes pain and discomfort in the knee with standing. Mention of this condition was not made on the SF89 at the time of enlistment. On physical examination at the USNTC, Great Lakes, Illinois on 9 June 1964 he was noted to a well-developed male who did not seem in distress. The pertinent physical findings were related to examination of the right knee where he was noted to have moderate effusion with laxity of the medical collateral and anterior cruciate ligaments. Consultation was obtained with the Orthopedic Clinic, U.S. Naval Hospital, Great Lakes, Illinois on 9 June 1964 where the above findings were noted, and the recommendation was made that he appear before a Board of Medical Survey. The remainder of the physical examination was substantially within normal limits. Review of this man's health records reveals that at place of enlistment his physical profile was recorded as 111111A. He appeared before a Board of Medical Survey on 16 June 1964 which is of the opinion that he does not meet the minimum physical standards for enlistment or induction... This disability is considered not to be the proximate result of performance of active [duty] involving basic pay as defined by law. There is no disciplinary action pending in this case. The patient has been informed of the findings and recommendation of the Board and does not desire to submit a statement in rebuttal. The Board highlights that the RBMS notes the Veteran's clinical musculoskeletal evaluation was normal, and he was assigned a "1" rating for his capacity and stamina for his lower extremities under the PULHES system. See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992); (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran's capacity and stamina ("P"); upper extremities ("U"); lower extremities ("L"); hearing ("H "); eyes ("E") and psychiatric condition ("S") assessed on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)). The Veteran testified that prior to his enlistment, he had right knee surgery but fully recovered prior to his enlistment in the Navy. He explained that he had three physical examinations to ensure his knee was stable at the Armed Forces Examination Station (AFES) in Atlanta, Georgia, and he was then sworn in for enlistment. He transferred to the U.S. Naval Training Center (USNTC) in Great Lakes, Illinois, for his initial training. He also testified that he injured his right knee a few days later when he was jogging down a ramp on a wooden Quonset hut, and he caught his heel on the corner of a wooden strip on the ramp. He fell and his knee hurt but he could still walk; later, his knee began to swell, and this set in motion the chain of events recorded above. In September 2019, a VA examiner opined: It is less likely than not that the Veteran's right knee condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The STR show that on initial examination into the military on June 9th, he was noted to have swelling to the knee with noted instability. It was then revealed that the Veteran had a very significant knee injury while playing football that was not on the SF89 at the time of enlistment. The report from the Medical Survey states that the Veteran had been hospitalized for several months, underwent surgery, and had a further seven months of physical therapy and had been advised by his private physician to avoid contact sports. It continues that the Veteran had been doing well until recently, when the knee started swelling and had pain withstanding. There is no report of an injury in service and no evidence of any activity that would aggravate the preexisting condition. The Medical Survey does not report any injury in service, only that his knee had begun to swell recently. The swelling of the knee was noted on the initial exam for military service. It is less likely than not that the Veterans preexisting right knee condition was aggravated by service. The Board finds the Veteran testified, competently and credibly, to what happened. This, when combined with VA's heightened duties because of the absence of the STRs, leads the Board to conclude a new VA examination is needed. Specifically, because the Board has found that the Veteran fell in service, this changes the analytical framework the September 2019 examiner applied, i.e., the finding that "there is no report of an injury in service and no evidence of any activity that would aggravate the preexisting condition." Moreover, the September 2019 examiner's opinion is based on an inaccurate factual premise, as the Veteran was initially examined for enlistment at the AFES on June 5, 1964, (and not at the USNTC on June 9, 1964). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed right knee disorder. The examiner, after reviewing the claims file, to include this Remand, should conduct the customary examination and opine: a) Is it medically undebatable that the Veteran's right knee disorder preexisted his entry into active military service? If yes, please state why and identify the clear and unmistakable evidence? If no, why not? b) If you find it is medically undebatable that the Veteran's right knee disorder preexisted his entry into active military service, is it also medically undebatable that the Veteran's right knee disorder was not aggravated to a permanent degree in service beyond that which would be due to the natural progression of the disease? If yes, why? If no, why not? In answering questions (a) and (b), the examiner is advised that the evidentiary standard for whether a condition existed prior to service is "clear and unmistakable," which is a formidable evidentiary standard, requiring that the preexistence of a condition and the non-aggravation result be "undebatable." In answering question (b), you MUST accept that the Navy found the Veteran's clinical musculoskeletal evaluation was normal and he was assigned a "1" rating for his capacity and stamina for his lower extremities under the PULHES system during his enlistment examination at AFES on 5 June, 1964, as noted in the RBMS. In answering question (b), you MUST also accept that the Veteran fell in service as described above. You MUST accept these findings as fact and your analysis MUST reflect these findings. c) If the answer to questions (a) or (b) is no, is it at least as likely as not (50 percent probability) that Veteran's right knee disorder began during, or was otherwise caused by, military service? Why or why not? (Continued on the next page) A complete rationale should be provided for all opinions rendered. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Sopko, 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.