Citation Nr: 21011437 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-34 279A DATE: March 1, 2021 REMANDED Service connection for a bilateral leg/knee disability is remanded. REASONS FOR REMAND The Veteran had active service from September 1972 to June 1974. In a July 2019 decision, the Board of Veterans’ Appeals (Board) denied entitlement to service connection for a bilateral leg/knee disability. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a September 2020 Joint Motion for Partial Remand (JMPR), the portion of the Board’s decision which denied service connection for a bilateral leg/knee disability was vacated and remanded for action consistent with the JMPR. An April 1972 Report of Medical History, completed prior to enlistment, reflects that the Veteran checked the ‘Don’t Know’ box for ‘“trick” or locked knee.’ The examiner noted pain over the anterior tibial tuberosity – Osgood Schlatter’s – not considered disabling (NCD). There was no swelling and no evidence of internal derangement of knees. 06/23/2015 STR-Medical at 29. All items checked affirmative were evaluated by a medical examiner and were found to be of no clinical significance. The Veteran was found physically qualified for enlistment. Id. at 26. A May 1974 Report of Medical Examination reflects that his ‘lower extremities’ were clinically evaluated as abnormal and annotated with ‘prominent tibial tubercle’ and the examiner commented that the history was compatible with a diagnosis of Osgood Schlatter disease since age 15-16 years of age. Id. at 12-13. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” and that “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). 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. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C. § 7104(c). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Accordingly: Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness. . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). “The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096). This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Id. While the pre-enlistment examination reflects pain over the anterior tibial tuberosity – Osgood Schlatter’s, it was not considered disabling and he was deemed physically qualified for service. Thus, a condition was not noted on an induction examination and the Veteran is presumed sound. An opinion must be sought as to whether there is clear and unmistakable evidence that a disability of the leg/knee, to include Osgood Schlatter’s disease, preexisted service, and whether there was clear and unmistakable evidence that there was no increase in disability during service or an increase was due to the natural progression of the condition. The matter is REMANDED for the following action: 1. Request that the March 2019 C&P examiner (or another qualified clinician if the March 2019 examiner is unavailable) review the claims folder and provide opinions as to the following: a) Whether it is clear and unmistakable (obvious, manifest, and undebatable) that a leg/knee disability, to include Osgood Schlatter disease, pre-existed service; b) If so, whether it is clear and unmistakable (obvious, manifest, and undebatable) that a preexisting leg/knee disability, to include Osgood Schlatter disease, was not aggravated (i.e. permanently worsened) during service, or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase in service was due to the natural progress of the disease. c) If it is not clear and unmistakable both that a leg/knee disability, to include Osgood Schlatter disease, preexisted service and was not aggravated therein, then the examiner should opine as to whether the leg/knee disability, to include Osgood Schlatter disease, at least as likely as not (a probability of 50 percent or greater) had its onset in, or is otherwise related to the Veteran’s period of active duty service. A complete rationale for all opinions must be provided. (Continued on the next page)   An examination should be scheduled if deemed necessary by the examiner. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.