Citation Nr: 21006394 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-17 403 DATE: February 4, 2021 REMANDED Entitlement to service connection for right knee joint osteoarthritis (previously claimed as “tear, medial meniscus, right knee”) is remanded. Entitlement to service connection for left knee joint osteoarthritis (previously claimed as “left knee problems”), secondary to right knee joint osteoarthritis, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1965 to December 1965. On appeal is a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a “tear, medial meniscus, right knee” and “left knee problems.” The Board issued a September 2019 decision denying service connection for both issues. The appellant appealed to the United States Court of Appeals for Veteran’s Claims (Court). In August 2020, the appellant’s representative and the VA General Counsel filed a joint motion for remand (JMR) as the parties had agreed that the Board erred in its reliance on a November 2015 VA medical opinion to deny the claim. In August 2020, the Court granted the JMR and vacated the Board’s September 2019 decision that denied service connection for both issues. The matter has now been returned to the Board for appellate review. The Board finds that additional development is warranted before a decision may be rendered on the Appellant’s claim. 1. Entitlement to service connection for right knee joint osteoarthritis is remanded. A Veteran is presumed to have been sound upon entry into active service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). If a condition is not noted at entrance, the presumption of soundness applies. In this case, there is no notation of a right knee condition on the Veteran’s entrance examination. However, there are service treatment records that reflect the Veteran had complaints of right knee pain and a past medical history that included a “preexisting right knee injury from high school football.” Thus, the first issue to be addressed in this case is whether the presumption of soundness applies. The burden is on the VA to rebut a presumption of soundness by clear and unmistakable evidence that both: (a) the condition preexisted service and (b) the preexisting condition was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Thus, the second issue to be addressed in this case is whether the VA can rebut the presumption of soundness by clear and unmistakable evidence that (a) the right knee condition preexisted service and (b) the preexisting condition was not aggravated by service. In the August 2020 JMR noted above, the parties agreed that the Board erred in its reliance on the November 2015 VA medical opinion to deny the claim. First, the examiner provided no analysis for his opinion that appellant’s right knee disability was not aggravated beyond its natural progression by service other than to note that the in-service Medical Board also found the condition was not aggravated by service. Second, the examiner did not explain how appellant’s risk factors for developing degenerative joint disease indicated the right knee condition was not aggravated beyond its natural progression by service, given that at least some of the risk factors did not develop until after appellant’s separation from service. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Thus, on remand, a new VA examination must be obtained that addresses the presumption of soundness. 2. Entitlement to service connection for left knee joint osteoarthritis, secondary to right knee joint osteoarthritis, is remanded. The claim for service connection for a left knee disability, based on a theory of secondary service connection, is inextricably intertwined with the claim for service connection for a right knee disability. As such, a remand of service connection for the right knee disability necessitates the remand of service connection for a left knee disability, which is an intertwined issue. The matters are REMANDED for the following action: Schedule the appellant for a VA examination with an appropriate examiner to determine the nature and etiology of his claimed knee conditions. The claims file must be reviewed by the examiner in conjunction with the examination. Upon examination and interview of the appellant, and review of pertinent medical history, the examiner should provide opinions responding to the following: a) Is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the appellant’s RIGHT knee condition preexisted his active duty service? b) If the examiner finds it did clearly and unmistakably preexist service, was it clearly and unmistakably not aggravated by service? The term “aggravated” in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. c) If it is determined that the claimed right knee condition did NOT clearly and unmistakably pre-exist service, did the claimed right knee condition at least as likely as not (50 percent probability or greater) have its onset during service, or is it otherwise related to service? d) As it relates to the claimed LEFT knee condition, was it at least as likely as not (50 percent probability or greater) that the claimed LEFT knee condition was secondary to the appellant’s claimed right knee condition? e) If it is determined that the claimed left knee condition was not secondary to the appellant’s claimed right knee condition, did the claimed left knee condition at least as likely as not (50 percent probability or greater) have its onset during service, or is it otherwise related to service? In rendering the above opinions, the examiner must specifically consider and discuss the appellant’s service treatment records. The examiner also is advised that the appellant is competent to report his symptoms and history and 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 complete rationale must be given for all opinions and conclusions expressed. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Jiggetts 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.