Citation Nr: 21014638 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-36 365 DATE: March 15, 2021 REMANDED The claim of entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 24, 1979, to September 11, 1979. This appeal is from an October 2015 rating decision. In September 2019, the Board denied this claim, which the Veteran appealed to the U.S. Court of Appeals for Veterans Claims. In October 2020, the Court granted a Joint Motion for Remand (JMR), as discussed in more detail below. The claim of entitlement to service connection for a left knee disability is remanded. Service connection is available for disabilities that are related to injuries incurred during service. 38 C.F.R. § 3.303. Service connection is also available for disabilities that preexisted service, but only if they were aggravated during service. 38 C.F.R. § 3.306. The Veteran’s entrance examination does not show any defect of the left knee, even though he reported having had left knee surgery in the year prior to his entrance into active duty, therefore he is presumed to have been in sound condition at entrance. 38 C.F.R. § 3.304(b). To rebut that presumption, the evidence must show that the evidence clearly and unmistakably shows both that there was a disability at entrance and that it did not undergo a permanent increase in severity beyond the normal progression of the disability during service. If either prong cannot be shown by clear and unmistakable evidence, then the presumption of soundness applies, and service connection under Section 3.303 is considered. If both prongs are shown by clear and unmistakable evidence, then the claim must be denied. The only examination on record, from October 2015, is inadequate, as noted in the JMR. The AOJ (agency of original jurisdiction) informed the VA examiner, via the examination form, that the Veteran’s left knee disability clearly and unmistakably existed prior to his entry into service, when this is a finding that should have been made by the examiner. The question posed to the VA examiner presupposes that service connection via aggravation is the only available method to establish service connection, which is inappropriate due to the need to fully address the presumption of soundness. The Veteran has also argued that there has been a failure to comply with the duty to assist in the obtaining of evidence. He reports he is in receipt of Social Security Administration (SSA) disability benefits, and he asserts that records from the Iowa City VA have not been obtained. On remand, this shall be accomplished. The matters are REMANDED for the following action: 1. Obtain copies of the Veteran’s records from SSA. 2. Ensure that a complete set of VA treatment records have been associated with the claims file. Contact the Veteran to ask him when he started going to VA for treatment, and to provide a list of locations of VA treatment. 3. After completion of directives 1 and 2, schedule the Veteran for an appropriate examination of the left knee for a report on whether it is as likely as not (50/50 probability or greater) that any left knee disability is related to his service. The examiner is asked to carefully review the record prior to opining. At the Veteran’s enlistment, he reported having left knee surgery. The enlistment examination shows no defect of the knee, and therefore he is considered to have been in sound condition at his entrance into service unless the presumption is rebutted, as shown by the evidence. The examiner is therefore first asked whether there clear and unmistakable evidence that shows the Veteran had a preexisting left knee disability (if so, cite to that evidence). If the examiner finds that a disability clearly and unmistakably preexisted service, then second question is whether there is clear and unmistakable evidence that shows the disability DID NOT undergo a worsening beyond the normal progression of the disability during service (if so, cite to the evidence showing that a worsening did not occur). If the examiner cannot find clear and unmistakable evidence to answer both questions above, then the examiner is asked whether any left knee disability is as likely as not related to his service. The Board notes that the evidence shows that he entered service with a normal knee, but did report having left knee surgery. An August 17, 1979, examination of the knee showed full painless motion with no tenderness or swelling, and no laxity of the ligaments. He was able to do squats, duckwalk, and walk on his knee without trouble. That examiner opined that the L on his PULHES profile be labeled 1. His first day of active duty was August 24, 1979. On August 29, 1979, he reported that he had a history of pain with walking and running, and was then having severe pain and giving way. That examiner noted that the Veteran was in pain that interfered with the examination, but there was no effusion, and his knee appeared stable. He was sent to an orthopedic on August 30, 1979, who assessed the Veteran as having multiple knee problems bilaterally that existed prior to service. He was separated by the Medical Board for failure to meet the standards for induction. All opinions are to be supported with explanation. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Gibson 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.