Citation Nr: 21012136 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-14 473 DATE: March 3, 2021 REMANDED Entitlement to service connection for chondromalacia of the left knee is remanded. Entitlement to service connection for chondromalacia of the right knee is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 18, 1971 to July 14, 1971. The Board notes that these matters were initially considered new and material evidence claims. However, upon procedural review of the record, the Veteran’s service connection claims were not final. For context, the Veteran filed a claim for service connection for his bilateral chondromalacia conditions in July 2014. In August 2014, the Veteran received a rating decision, denying his claims. The Veteran submitted a fully developed claim for his bilateral knee conditions within one year of the August 2014 Rating Decision. He received a second rating decision in December 2014, denying his claims. He filed a notice of disagreement in January 2015, again, within one year of his December 2014 Rating Decision. In July 2016, the Veteran received a statement of the case, which denied his claims. He filed a Form 9, appealing the decision, within 60 days of his notification letter of the statement of the case and opted for a hearing. The case was certified to the Board in March 2017 and the Veteran was afforded a hearing in March 2020. Based on the timeline discussed above, the Veteran’s August 2014 Rating Decision was not final. 38 C.F.R. § 3.156. As such, the Board will analyze whether the Veteran is entitled to service connection for his bilateral chondromalacia conditions. 1. Entitlement to service connection for chondromalacia of the left knee is remanded. 2. Entitlement to service connection for chondromalacia of the right knee is remanded. The Veteran appeals the denial of service connection for chondromalacia of the left and right knees. 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. 38 U.S.C. § 1111 (2012). When no preexisting condition is noted upon entry into service, a Veteran is presumed to have been found sound upon entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. If this burden is met, then the Veteran is not entitled to service connection benefits. However, if VA fails to rebut the presumption of soundness, the Veteran's claim is one for service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). According to the Veteran’s July 1970 entrance examination, his clinical evaluation was deemed normal and the examiner noted no disabilities and/or deformities of the lower extremities. In June 1971, an examination was requested for his knees and spine. The examiner noted “old injury,” but did not provide any additional information, to include the type of injury. Additionally, the examination reported was stamped “Negative” above the examiner’s name. The Veteran continued basic training and did not undergo a Medical Board examination until he was admitted into the U.S. Army Hospital in July 1971. See July 1971 Clinical Record. The Veteran’s July 1971 Medical Board examination determined that the Veteran had an abnormal clinical evaluation in his lower extremities and was diagnosed with chondromalacia, one month after entry into service. According to the medical board proceedings, he was deemed unfit to continue service and the examiner determined that his condition existed prior to service. In light of the Veteran’s June 1970 entrance examination, which indicated a normal clinic evaluation upon entry, as well as the Veteran continuing basic training after his June 1971 examination report, the Board finds that the presumption of soundness is attached to the Veteran’s bilateral chondromalacia claim. In determining whether there is a nexus between the disabilities and the Veteran's military service, the Board must rely on competent medical evidence. The Board cannot make medical conclusions in the absence of supporting medical evidence. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, the Board cannot make a fully informed determination as to whether his chondromalacia clearly and unmistakably existed prior to service, and if it did, whether it was aggravated beyond its natural progression. As his claims require competent medical evidence to draw a conclusion, the matters must be remanded for a VA examination. The matters are REMANDED for the following action: 1. Obtain updated medical records, including private and VA treatment records, and associate them with the claims file. 2. Schedule the Veteran for appropriate VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the nature and etiology of his bilateral knee disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner must opine to the following: a) Whether a right and/or left knee disability including chondromalacia - clearly and unmistakably existed prior to service entrance and, if so, b) whether any such disability was clearly and unmistakably not aggravated during or as a result of service. c) If the examiner does not find that a right and/or left knee disability clearly and unmistakably existed prior to service entrance (or that it clearly and unmistakably existed prior to service but there is no clear and unmistakable evidence that it was not aggravated), then the examiner must provide an opinion as to whether it is at least as likely as not that any current right and/or left knee disability began in service, was caused by service, or is otherwise related to the Veteran’s active service. In doing so, the examiner should consider the following: • July 1970 entrance examination; • June 1971 examination report, stating that the Veteran had an “old injury” with x-ray interpreted as negative; • July 1971 orthopedic evaluation noting a prior history of Osgood-Schlatter’s disease with knee difficulties include his knee cap popping to one side when kneeling; the examiner noted high riding patella bilaterally and offered diagnoses of bilateral chondromalacia with effusion, moderately severe and symptomatic which existed prior to service; • July 1971 STR, stating that he cannot run; • July 1971 separation examination; • July 1971 report of medical history, stating occasional pain in both knees; and • July 1971 medical board proceeding, determining that his bilateral knee condition existed prior to service. The examiner must provide a detailed rationale for any opinion expressed. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be considered in formulating the requested opinion. 3. Thereafter, readjudicate the Veteran's claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Adeleke, Tomi 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.