Citation Nr: 21011550 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-01 244 DATE: March 2, 2021 REMANDED Service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Navy from June 1975 to June 1977. The Veteran testified before the undersigned Veterans Law Judge during a January 2021 hearing. This matter is on appeal from an August 2012 rating decision. The Veteran’s claim for service connection for left knee instability has been recharacterized as a left knee disability, to include left knee instability. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).   1. Service connection for a left knee disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination for knee and lower leg conditions in April 2012. The clinician opined that it was less likely than not that the Veteran’s left knee disability was proximately due to or the result of his service-connected degenerative disc disease of the lumbar spine. However, the clinician provided no opinion as to whether the left knee disability had been aggravated by the low back disability. Also, despite the Veteran’s report of an injury to his left knee during his active duty service, the clinician provided no opinion with regard to direct service connection. In addition, every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012).  Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304 (2020).  A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). At the time of his May 1975 entrance examination, the Veteran reported a history of leg cramps and broken bones; the notes specify that this referred to a patellar fracture two years prior. At the time of his February 1977 separation examination, the Veteran also reported a history of broken bones and specified a fractured patella five years prior, but added that this was the left patella. The record does not currently contain a copy of the entrance examination report itself. Unless that report is eventually associated with the claims file and it notes a left knee disability, the presumption of soundness will therefore attach with respect to this issue. The question before the Board, then, is whether clear and unmistakable evidence demonstrates that the Veteran’s left knee disability existed before entry and was not aggravated by such service, so as to rebut the presumption of soundness.  The medical opinions of record, including the Veteran’s spouse’s opinion, do not address this question. A remand is therefore necessary to obtain an additional medical opinion. As stated above, the Veteran’s service treatment records might be incomplete; the records that have been associated with the claims file include neither the May 1975 entrance examination report nor the February 1977 separation examination report, although they include the reports of medical history that originally accompanied those examination reports. In addition, the Veteran’s service treatment records note hospitalization from October 22, 1975 to October 29, 1975 at the Naval Regional Medical Center in Philadelphia, Pennsylvania, for cellulitis of the left ankle. The Veteran reports that he was also treated during this hospitalization for a left knee injury, including significant physical therapy. Although the service treatment records that have been associated with the claims file include the discharge summary for this inpatient hospitalization, it is not clear whether these records include the full records of this inpatient hospitalization. On remand, the Agency of Original Jurisdiction should attempt to obtain these records, which are sometimes stored separately from service treatment records, as well as attempting to obtain any other outstanding service treatment records. Because entrance and separation examinations are sometimes included in service personnel records instead of service treatment records, the Agency of Original Jurisdiction should also attempt to obtain the Veteran’s service personnel records. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records and service personnel records, specifically including the May 1975 entrance examination report, the February 1977 separation examination report, and records of the Veteran’s inpatient treatment at the Naval Regional Medical Center in Philadelphia, Pennsylvania, from October 22, 1975 to October 29, 1975. The AOJ is advised that hospitalization records may be stored separately from service treatment records (STRs). Make as many requests as are necessary to obtain relevant records and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. All negative responses must be documented. If no records are available, the claims folder must indicate this fact and the Veteran should be notified; this notice should advise the Veteran to submit any copies of these records he might have in his possession. 2. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s left knee disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new physical or telehealth examination is only required if deemed necessary by the clinician. The clinician must provide opinions as to the following: a. Whether the Veteran’s left knee disability clearly and unmistakably existed prior to his active duty service.  b. If the answer to a) is yes, whether the Veteran’s left knee disability was clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression) during or as a result of service.  If the answer to a) or b) is no, the clinician must also provide opinions as to the following: c. Whether it is as likely as not (a probability of 50 percent or greater) that any current left knee disability began in service, or; was caused by service, or; had its onset within one year of the Veteran’s separation from active duty, or; is otherwise related to the Veteran’s active service.  d. Whether it is as least as likely as not that any current left knee disability was caused by the Veteran’s service-connected degenerative disc disease of the lumbar spine or left lower extremity radiculopathy. e. Whether it is as least as likely as not that any current left knee disability was aggravated beyond its natural progression by the Veteran’s service-connected degenerative disc disease of the lumbar spine or left lower extremity radiculopathy. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The Veteran’s report of a left patellar fracture prior to his active duty service at the time of his May 1975 entrance examination and his February 1977 separation examination. b. The Veteran’s reports of the onset, etiology, and continuity of his symptoms in statements from September 1997, June 1998, October 2011, November 2011, March 2013, January 2014 (this statement is dated January 2013, but this appears to be a typographical error), and December 2020, as well as his testimony during the January 2021 Board hearing. c. The Veteran’s spouse’s June 2016 statement, including her medical opinion regarding the etiology of the Veteran’s symptoms. The rationale for any opinion expressed should be provided. Note that the Veteran’s service treatment records might be partially missing and the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 4. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.