Citation Nr: 21026016 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 17-59 523 DATE: April 29, 2021 REMANDED Entitlement to service connection for bilateral knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to October 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision. In November 2020, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is in the claims file. 1. Entitlement to service connection for bilateral knee disability is remanded. The Veteran seeks service connection for bilateral knee disability, asserting such disability had an onset in service or is related to a fall and knee sprain during boot camp. The Veteran also asserts that his left knee disability is related to overuse from favoring his right knee. Veterans are presumed to have been in sound condition upon entry into service, except as to conditions noted on their entrance examination. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Veteran’s May 1969 entrance examination notes that a letter from the Veteran’s doctor was reviewed regarding his right knee. The letter states that the Veteran had a recurrent dislocation of his right kneecap and that he had a repair of this in August 1965, that he was last seen by the doctor in November 1965, and that at that time he was doing well and was released to all activities except contact sports and tumbling. The Veteran’s entrance examination notes that the Veteran’s lower extremities were normal upon examination and that the Veteran was qualified for service. Accordingly, the Veteran is presumed sound at entrance. When the presumption of soundness attaches to a claim but there is a question of pre-existing disability, VA has the burden of establishing by clear and unmistakable evidence (1) that a disability pre-existed service and (2) that there was no aggravation during service. Wagner v. Principi, 370 F. 3d 1089, 1096 (2004). The term “clear and unmistakable evidence,” as used in 38 U.S.C. § 1111, has been defined as evidence that “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258-59 (1999). In this case, in July 2016, the Veteran underwent VA examination. The VA examiner opined that the Veteran’s knee disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by service. The VA examiner explained that the Veteran had a pre-existing problem of bilateral recurrent dislocating patellae. The VA examiner noted that the Veteran had surgery for the right patellar tendon prior to service and had surgery for his left after service. The VA examiner noted that the in-service injury was a sprain to the right knee and that the Veteran reported that his right knee was not a problem after service until arthritis developed. However, evidence added to the claims file since the July 2016 VA examination shows the Veteran’s reports of knee problems since the in-service injury. A December 2015 private treatment record notes a long history of knee problems with knee instability for 40 years. During the November 2020 Board hearing, the Veteran reported that his knee pain continued after the in-service injury and worsened over time. He also reported that he was diagnosed with early onset arthritis and it appears that he reported he received this diagnosis in 1969. See Hearing Tr., pp. 5, 7, 8. The July 2016 VA examiner did not provide an adequate rationale or have the opportunity to address the Veteran’s lay statements of symptoms since service. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding when an examiner fails to address the Veteran’s lay evidence, and the Board does not find the Veteran not credible or not competent to offer that lay evidence, a new exam is needed). The Board notes that the Veteran submitted a December 2020 private opinion. While the Veteran’s private physician in December 2020 opined that the Veteran’s in-service injury may have had an effect on the eventual development of his knee arthritis, the opinion does not have the requisite degree of certainty (in other words, at least as likely as not) that the current disability is related to service. In light of the above reasons, remand is warranted to obtain additional VA medical opinion regarding direct service connection. The Veteran also testified that he relies on his left leg more due to his right knee problems. Accordingly, while this matter is on remand, opinion should be obtained regarding whether the Veteran’s right knee disability caused or aggravated his left knee disability. Finally, while this matter is on remand, any additional outstanding treatment records should be obtained. The matters are REMANDED for the following action: 1. After securing any necessary authorization, obtain any private treatment records as the Veteran may identify relevant to his claim, including any additional treatment records from Paragon Orthopedic Center. 2. After obtaining any outstanding records, ask the appropriate examiner to review the Veteran’s file. The necessity of an in-person examination is left to the discretion of the examiner. The examiner should identify any right and left knee disability the Veteran has presented during the claim period (from March 2016 to the present), even if resolved. For each diagnosis, the examiner should opine whether there is clear and unmistakable evidence that the disability pre-existed service. If there is clear and unmistakable evidence that the disability pre-existed service, the examiner should identify the evidence relied upon in rendering this opinion. If there is clear and unmistakable evidence that the disability pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disability did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. If there was an increase in the severity of the Veteran’s disability, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. If there is no clear and unmistakable evidence that the current disability pre-existed service, then the examiner is asked whether it is at least as likely as not (a 50 percent or greater probability) that the disorder had an onset in service or is otherwise related to an in-service injury, event, or disease, to include the Veteran’s in-service fall. The examiner should also opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran’s left knee disability is caused by or aggravated by his right knee disability. Note that aggravation means any incremental increase in disability in non-service-connected disabilities (i.e., any additional impairment of earning capacity) resulting from service-connected condition. The examiner should consider all medical and lay evidence of record. The examiner should specifically comment on the Veteran’s September 1969 service treatment records noting a right knee sprain injury and bilateral knee pain and bilateral mobile patellae, the September 1969 service treatment records noting the Veteran’s report that he had surgery in 1965 and had not had much trouble until boot camp, the Veteran’s report that he has had pain since his in-service injury that has worsened over time, the December 2020 private examiner’s opinion that the Veteran’s in-service injury may have had an effect on the eventual development of his knee arthritis, the Veteran’s report that he was diagnosed with arthritis in 1969, and the Veteran’s report that he relies on his left leg more due to his right knee problems. If the Veteran’s reports are discounted, the examiner should provide a rationale for doing so (e.g., whether there is any medical reason to accept or reject his contentions). The examiner is asked to explain the reasons behind any opinions expressed. The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. (Continued on the next page)   3. After the above development, and any other development deemed necessary, readjudicate the claims. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell 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.