Citation Nr: 21010097 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 13-17 699 DATE: February 24, 2021 REMANDED Entitlement to service connection for right knee patellofemoral pain syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1993 to July 1993 and December 1995 to January 2009. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In a June 2009 administrative decision, VA found that the Veteran’s period of military service from December 7, 1995 to January 28, 2002 is considered honorable for VA purposes under 38 C.F.R. § 3.13(c), and he is entitled to all applicable VA benefits for this period of service. However, the Veteran’s discharge for service from January 29, 2002 to January 8, 2009 is considered dishonorable for VA purposes and is a bar to VA benefits under 38 C.F.R. § 3.12(d). The Veteran did not challenge or appeal the decision. The claims will be adjudicated based on the Veteran’s discharge currently of record. The Board remanded the claim considered herein in July 2017 and June 2020. The development has been completed and the case returned to the Board for further appellate adjudication. Entitlement to service connection for right knee patellofemoral pain syndrome is remanded. Upon review of the record, the Board finds a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2019). The Veteran asserts entitlement to service connection for right knee patellofemoral pain syndrome. Specifically, the Veteran contends that his pre-existing right knee disability, injured when he was 14, was aggravated by his service. Under pertinent law and regulations, a veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. §§ 1111, 1132. When no pre-existing condition is noted upon entry, the veteran is presumed to have been sound upon entry and the presumption of soundness arises. If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that there was a pre-existing condition and that it was not aggravated during or by the veteran’s service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The Veteran’s February 1995 entrance examination noted normal lower extremities, but the Veteran reported a right knee dislocation when he was 14 that he hadn’t had any problems for the previous two years. The Veteran was afforded a VA examination in October 2020. The VA examiner noted diagnoses of right knee joint osteoarthritis in 2010-2012 and right recurrent patellar dislocation in 1995, right patellofemoral pain syndrome in 1996-1997, and right knee degenerative arthritis in 2010-2018. Following a physical examination, the VA examiner opined that the Veteran’s right knee patella dislocation was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In support of her opinion, the VA examiner reasoned that the Veteran’s current diagnosis of right knee degenerative joint disease, osteoarthritis, and pain is related to the pre-service injury of the right knee noted at the Veteran’s entrance examination. The VA examiner stated that, due to the nature of the pre-existing injury, it is difficult to determine if the disability is caused by service or an aggravation of the pre-existing injury during service. A VA addendum medical opinion was obtained in October 2020, opining as to the etiology of the Veteran’s right knee disability. The VA examiner opined that the Veteran’s right knee disability was less likely than not incurred in or caused by the right knee disability during service, was less likely than not related to an in-service injury, event, or disease, and less likely than not began during service, manifested within one year after discharge, or was noted during service with continuity of symptomatology since service. In support of these opinions, the VA examiner simply stated that there was insufficient evidence of record from the credible period of service to support a nexus. The Board finds the October VA examination and addendum opinion inadequate. The examiners’ rationale concluded that it was less likely than not that the Veteran’s pre-existing disability was aggravated by service. The Board notes that to rebut this presumption of soundness, there must be clear and unmistakable evidence of pre-existing right knee disability and clear and unmistakable evidence the pre-existing right knee disability was not aggravated during or by the Veteran’s service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). For the above reasons, the October 2020 VA examination and addendum opinion both asked the incorrect questions and applied the incorrect legal standard, and an additional addendum opinion is needed on remand. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to determine the etiology of the Veteran’s right knee patellofemoral pain syndrome. The examiner should review the file and provide a complete rationale for all opinions expressed. In providing the opinions, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. The examiner should provide the following opinions: (a.) Whether there is clear and unmistakable evidence (i.e., obvious and manifest) that the Veteran’s current right knee patellofemoral pain syndrome preexisted service, and if so, identify such clear and unmistakable evidence or medical principle that makes it so. (b.) If the current right knee patellofemoral pain syndrome clearly and unmistakably preexisted service, whether it is clear and unmistakable that the disability was NOT aggravated by service, and if so, identify such clear and unmistakable evidence or medical principle that makes it so. (c.) If the examiner concludes that there was not clear and unmistakable evidence that the Veteran’s right knee patellofemoral pain syndrome preexisted service or there is not clear and unmistakable evidence that it was not aggravated by service, then the examiner is also asked to opine whether it is at least as likely as not (50 percent probability or more) that any right knee patellofemoral pain syndrome began in service, was caused by service, or is otherwise etiologically related to service. The examiner is asked to consider the Veteran’s lay statements as to onset, and a complete rationale is required for the conclusion reached. 2. After the development requested is completed, readjudicate the claim on appeal. If any benefit sought remains denied, then furnish the Veteran and his representative a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. C. Slaughter, 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.