Citation Nr: 21005843 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 14-41 479 DATE: February 2, 2021 REMANDED Entitlement to service connection for a bilateral knee disability, to include chondromalacia patella and Osgood-Schlatter disease, is remanded. REASONS AND BASES FOR REMAND The Veteran served in the United States Navy from February 1969 to April 1970. The Board sincerely thanks the Veteran for his service to our country. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to service connection for a bilateral knee disorder was previously before the Board in April 2019, when it was denied. The Veteran appealed the Board's denial to the U.S. Court of Appeals for Veterans Claims (Court). In a December 2019 Order, granting a November 2019 Joint Motion for Remand (Joint Motion), the Court vacated and remanded the April 2019 Board decision consistent with the terms of the Joint Motion. In October 2020, the Board remanded the claim for a medical opinion. Unfortunately, there has not been substantial compliance with all of the Board's previous remand directives. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a bilateral knee disability, to include chondromalacia patella and Osgood-Schlatter disease The Joint Motion instructed that remand is warranted to obtain a new medical opinion that provides an adequate rationale as to whether the Veteran’s Osgood-Schlatter disorder clearly and unmistakably preexisted and was not aggravated by active duty service. The Joint Motion also directed that the Board consider the Veteran’s separate in-service diagnosis of chondromalacia patella, whether it is related to the Veteran’s Osgood-Schlatter disease, and whether it preexisted and was not aggravated by service. Regarding the Veteran’s Osgood-Schlatter disease, the December 2020 VA clinician opined that the Veteran’s Osgood-Schlatter disease clearly and unmistakably preexisted service. The clinician reasoned that the Veteran was diagnosed with Osgood Schlatter’s disease in 1962, which was prior to the start of his military career. However, the service treatment records indicate an initial diagnosis of Osgood-Schlatter disease in September 1969, when the Veteran was 20 years old. At the time of diagnosis, the Veteran endorsed symptoms since he was 16, which would put onset of symptoms in approximately 1965. As noted above, served in the United States Navy from February 1969 to April 1970. Thus, the initial diagnosis was given while the Veteran was on active duty. An addendum opinion is necessary to clarify whether the diagnosis date alters the clinician’s opinion. Regarding chondromalacia patella, the December 2020 clinician opined that it is less likely than not that the Veteran's pre-existing chondromalacia patella was aggravated beyond its natural progression by an in-service injury, event, or illness. However, the clinician provided no opinion or rationale as to whether chondromalacia existed prior to service. Further, in providing a negative nexus opinion as to whether the Veteran’s chondromalacia is due to or incurred in service, the clinician reasoned that there is no documentation indicating that the veteran complained of, or was treated for chondromalacia patella during his military career. However, the March 1970 in-service Report of Medical Board noted a diagnosis by orthopedic staff of both “Chondromalacia, Patella, Bilaterally, Symptomatic” and “Residual Deformity of Osgood-Schlatter’s Syndrome.” A clarifying medical opinion is necessary to clarify whether the Veteran’s chondromalacia patella preexisted service and whether the Veteran has a current diagnosis that is related to his in-service diagnosis of chondromalacia. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and/or private treatment the Veteran has received for his disability on appeal. Please ask the Veteran to provide the releases necessary for VA to secure private treatment records, including records of any medications he may have been prescribed for his disabilities. 2. After the action requested in paragraph 1 above is complete, please obtain a medical opinion to determine the nature and etiology of the Veteran's bilateral knee disorder. Another examination should be scheduled only if another examination is needed in the opinion provider's view. The Veteran's claims-file must be made available to and reviewed by the clinician. Based on review of the entire record, the clinician should provide an opinion that responds to the following: (a.) Please identify the Veteran’s knee disabilities, by diagnosis or functional limitation. (b.) Did the Veteran's chondromalacia patella clearly and unmistakably (obvious, manifest, undebatable) exist prior to his entrance to service? Please explain. (c.) If the answer to (b) is yes, was the chondromalacia patella clearly and unmistakably (obvious, manifest, undebatable) not aggravated (i.e., not worsened beyond the natural progression) by service? The clinician is requested to consider and address: • The Veteran’s March 1979 statement that he was “fit for service until [he]had to crawl around on the ships deck when [his]knees began to hurt and cause trouble for [him].” • The Veteran’s May 2012 statement that he noticed his knees “going sour” during his deployment to Vietnam. • The Veteran’s April 2018 hearing testimony that he does not remember any problem with his knees prior to service except with prolonged kneeling. IF the clinician determines that chondromalacia (1) did not clearly and unmistakably preexist service, or (2) was clearly and unmistakably not aggravated by service, the clinician should provide an opinion that responds to the following: (d.) Whether it is at least as likely as not (a 50% or greater likelihood) that the Veteran’s current knee diagnosis began in, or is otherwise etiologically related to, his service (including his in-service diagnosis of chondromalacia patella). The clinician is requested to consider and address: • The Veteran’s March 1979 statement that he was “fit for service until [he]had to crawl around on the ships deck when [his]knees began to hurt and cause trouble for [him].” • The Veteran’s May 2012 statement that he noticed his knees “going sour” during his deployment to Vietnam. • The Veteran’s April 2018 hearing testimony that he does not remember any problem with his knees prior to service except with prolonged kneeling. • The March 20, 1970 examination showing (1) crepitus with pain on patellar stressing, greater on the left than the right, as well as tenderness about the patellar tendons and tibial tubercle prominence with mild tenderness over the proximal tibia; (2) that x-ray views of both knees revealed residual Osgood-Schlatter’s deformity of the anterior tibial tubercle but no other abnormalities were noted; and (3) the orthopedic staff diagnosed the Veteran with chondromalacia, patella, bilaterally, symptomatic. • December 2006 private treatment records showing degenerative joint disease of the bilateral knees. • October 2009 private treatment record showing that the Veteran had a work-related right knee injury in 2003. • August, November, and December 2010 private treatment records showing a right knee injury. • March 2017 private treatment record showing a surgical history of right knee arthroscopy and debridement in January 2010, and left knee arthroscopy with meniscus repair in August 2014. • April 2018 private treatment records showing that the Veteran reported that his knee pain began or worsened in service. (e.) Whether the fact that there was no documentation of diagnosis of Osgood-Schlatter’s disease in 1962, but the Veteran endorsed symptoms as early as 1965, alters the clinician’s opinion as to whether the Veteran’s Osgood-Schlatter’s disease clearly and unmistakably preexisted service. The clinician is requested to consider and address: • A September 1969 Service Treatment Record showing that the Veteran reported experiencing the same knee symptomatology in 1969 as he had since age 16. • The March 1970 in-service Report of Medical Board showing that the 20-year-old Veteran endorsed a four-year history of pain in his knees. • The October 1978 letter from the Veteran’s treating physician, stating that the physician reviewed the Veteran’s records and found no evidence of significant injury to his knee, nor evidence of Osgood-Schlatter’s disease. The clinician is reminded that absence of contemporaneous treatment records cannot be the sole basis for a negative opinion. The clinician is further reminded that the in-service event or injury need not be the sole cause of the current disability. The clinician must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The clinician should take into consideration that the Veteran is competent to report in service and post-service symptom experiences; other witnesses are competent to report observable symptoms. If the clinician cannot provide an opinion without resorting to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board O. Halpern 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.