Citation Nr: 21025837 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 18-42 673A DATE: April 29, 2021 REMANDED Entitlement to service connection for left knee Osgood Schlatter's disease is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2009 to February 2013 with additional Army National Guard service. The Veteran testified before the undersigned Veterans Law Judge at an April 2021 Board hearing. In December 2020 the Veteran opted into the AMA review when he filed a December 2020 supplemental claim for service connection low back stemming from the May 2016 rating decision. Thereafter, in a March 2021 rating decision the AOJ granted service connection for lumbosacral strain (claimed as low back). Accordingly, the issue is no longer before the Board on appeal. Entitlement to service connection for left knee Osgood Schlatter's disease is remanded. Initially, the Board notes that there appear to be missing service department records as the Veteran testified at his April 2021 Board hearing that he served in the Army National Guard from April 2013 to March 2017; however, service department records for this period are not of record. Significantly, the Veteran testified that he was medically discharged from the National Guard. Further, the Veteran testified that during his National Guard service, he received treatment from the VA clinics in Cheyenne, Fort Collins, and Loveland from 2013 to 2017. However, it does not appear that his complete service department records, to include his period of Army National Guard service from 2013 to 2017 or his VA treatment records from Cheyenne, Fort Collins, or Loveland for his period of service from 2013 to 2017 have been associated with the record. Moreover, a finding of unavailability is not of record. Therefore, remand is needed in order to obtain the Veteran’s complete service department records and VA treatment records and associate them with the claims file in order to determine whether the Veteran qualifies as a veteran by virtue of injury or disease incurred or aggravated during ACDUTRA or INACDUTRA in the National Guard. Additionally, the Board finds that remand for a new VA examination is also needed. The Veteran is currently service connected for left anterior knee shrapnel wound. See May 2016 rating code sheet. The March 2016 VA examiner determined the Veteran has a pre-existing Osgood Schlatter’s disease. The examiner opined that the left knee Osgood Schlatter’s disease clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. However, the Board finds the opinion inadequate as the examiner did not provide sufficient rationale for finding the Veteran had a pre-existing condition and rejecting the Veteran’s December 2008 report of medical examination at enlistment which indicated the he had normal lower extremities upon clinical evaluation and no left knee defects or diagnoses. Additionally, the Board finds that clarification is needed on remand to differentiate the Veteran’s left knee Osgood Schlatter disease symptoms from his service-connected left anterior knee shrapnel wound. Moreover, the examiner should address whether the Veteran’s left knee Osgood Schlatter’s disease is a congenital disease or congenital defect. Accordingly, remand for new VA examination is needed. The matter is REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records and associate with the claims file, to include treatment records for the period from 2013-2017 from the Cheyenne VAMC, Fort Collins VA outpatient clinic, and Loveland VA clinic. If these records are unable to be obtained, the AOJ should make a formal finding of unavailability and associate it with the record. 2. Then, obtain any outstanding military service department records for the Veteran’s periods of active duty service from February 2009 to February 2013 and Army National Guard service from April 2013 to March 2017, and associate them with the claims file. If these records are unable to be obtained, the AOJ should make a formal finding of unavailability and associate it with the record. 3. Clarify the Veteran’s dates of service in the Army National Guard from April 2013 to March 2017, including identifying any periods active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). 4. After the above development is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of the left knee Osgood Schlatter disease. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Identify by diagnosis, whether the Veteran has a current left knee Osgood Schlatter’s disability that is distinct from his service-connected left anterior knee shrapnel wound disability. The examiner must make an effort to distinguish between the Veteran’s symptoms that are attributable to his service-connected left anterior knee shrapnel wound and the symptoms that are attributable to left knee Osgood Schlatter’s disease. If it is not possible to distinguish between the two, the examiner must specifically state as such. (b) For any separate and distinct left knee Osgood Schlatter’s disease disorder, the examiner should explain whether the disorder is a congenital or developmental defect, a congenital or developmental disease, or a disorder not of congenital or developmental origin. The examiner should note that a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. (c) If the disorder is a congenital disease, is there clear and unmistakable evidence that it pre-existed service? Please explain why. The examiner must use the clear and unmistakable standard. The examiner should address the December 2008 report of medical examination at enlistment which indicated the Veteran had normal lower extremities and normal spine and other musculoskeletal findings upon clinical evaluation. (d) If the disorder is a congenital disease and it clearly and unmistakably pre-existed service, is there clear and unmistakable evidence that either (i) there was no increase in disability during service, or (ii) any increase in disability during service was due to the natural progression of the disease? Please explain why. The examiner must use the clear and unmistakable evidence standard and discuss: ( 1 ) the Veteran’s shrapnel injury in service; (2) July 2010 radiologic examination report indicated the Veteran did not have acute osseous of the left knee and had postsurgical changes of the tibial tubercle; (3) October 2010 STR operation report which indicated the Veteran has had a history of Osgood-Schlatter’s and over the last year after his IED blast with shrapnel injury to the left knee developed anterior knee pain directly over the tibial tubercle and posterior and patellar tendon; (4) and January 2011 radiologic examination report indicated that radiographic imagine was ordered post removal of fragment and Osgood-Schlate-lesion. The impression was postoperative changes with mild persistent thickening of the patellar tendon. (e) If the disorder is a congenital disease that did not clearly and unmistakably pre-exist service, or that it pre-existed service but did not clearly and unmistakably increase in severity beyond natural progression during service, is it at least as likely as not (50 percent or greater probability) that it is related to service? Please explain why. In this circumstance only, the Veteran would be presumed sound upon entering service and the examiner may not rely on the presence of the disability prior to service. The examiner should address: ( 1 ) the Veteran’s shrapnel injury in service; (2) July 2010 radiologic examination report indicated the Veteran did not have acute osseous of the left knee and had postsurgical changes of the tibial tubercle; (3) October 2010 STR operation report which indicated the Veteran has had a history of Osgood-Schlatter’s and over the last year after his IED blast with shrapnel injury to the left knee developed anterior knee pain directly over the tibial tubercle and posterior and patellar tendon; (4) and January 2011 radiologic examination report indicated that radiographic imagine was ordered post removal of fragment and Osgood-Schlate-lesion. The impression was postoperative changes with mild persistent thickening of the patellar tendon. (e) If the disorder is not of congenital or developmental origin, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder is due to a disease or injury incurred during any period of active duty or ACDUTRA; or an injury incurred during any period of INACDUTRA. The examiner should address the Veteran’s reports that he received a medical discharge from the Army National Guard. (f) If the disorder is not of congenital or developmental origin, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused or aggravated by any of the Veteran’s service-connected disabilities, to include his service-connected left anterior knee shrapnel wound. Please explain why. If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (CONTINUED ON NEXT PAGE) 5. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Schick, 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.