Citation Nr: 21029652 Decision Date: 05/14/21 Archive Date: 05/14/21 DOCKET NO. 16-27 603A DATE: May 14, 2021 REMANDED Entitlement to service connection for bilateral knee condition is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2009 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a Board videoconference hearing, and a transcript of those proceedings is of record. Entitlement to service connection for bilateral knee condition is remanded. Although the additional delay is regrettable, the Board finds that remand is required in order to obtain an adequate medical opinion. When VA provides an examination or obtains an opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). When an examination is inadequate, the Board must remand the case for further development. Bowling v. Principi, 15 Vet. App. 1 (2001), 38 C.F.R. § 4.2. The Veteran seeks service connection for a bilateral knee condition. 03/02/2010 VA 21-526EZ, Veteran's Application for Compensation or Pension. The Veteran contends that the rigors of his active military training, namely, basic training and the School of Infantry training, caused his left knee condition and aggravated a right knee condition that existed prior to service. See 01/29/2021 Hearing Transcript at 5. When a defect, infirmity, or disorder is noted on the enlistment examination, the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A pre-existing injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 C.F.R. § 3.306(a). In such claims, the evidence of record must simply show that there was an increase in disability during service to trigger the presumption of aggravation; the burden then shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." See Wagner, 370 F.3d at 1096 (citing 38 U.S.C. § 1153). This requires the government to show by clear and unmistakable evidence that any increase in disability was due to the natural progress of the condition. See Cotant v. Principi, 17 Vet. App. 116, 130-32 (2003); see also 38 C.F.R. § 3.306(b). The presumption of aggravation only requires evidence of an actual worsening of a pre-existing condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). On remand, an adequate medical opinion must be obtained that addresses whether the Veteran's right knee condition showed actual worsening while in service. Initially, the evidence of record establishes that prior to service, the Veteran was diagnosed with recurrent dislocation of the right patella and underwent a right tibial tubercle osteotomy in December 2006. 04/27/2010 STR Medical at 20. The Veteran's pre-existing right knee condition was noted upon examination at service. See id. at 14-16. On the report of medical examination at enlistment, under box #76, it reflects recurrent right knee dislocations. As such, the presumption of soundness is inapplicable for the right knee under 38 U.S.C. § 1111. See 38 C.F.R. § 3.304(b). Instead, the presumption of aggravation of a pre-existing disability under 38 U.S.C. § 1153 applies. Further, following complaints of bilateral knee pain, the Veteran was diagnosed with overuse syndrome of the bilateral knees in November 2008. Id. at 33 and 38. However, a left knee condition was not noted at service entrance, so the presumption of soundness applies for the Veteran's claimed left knee disability. 38 U.S.C. § 1111. See 38 C.F.R. § 3.304(b). The Veteran was afforded a VA examination in August 2014 to determine the nature and etiology of his bilateral knee condition. See 08/27/2014 C&P Exam. The examiner diagnosed the Veteran with patellofemoral syndrome of the left knee, and recurrent dislocation of the patella post-patellaplasty of the right knee, noting that this diagnosis was first made prior to the Veteran's period of active duty service. Id. at 2. The examiner also diagnosed the Veteran with significant bilateral chondromalacia. Id. at 9. The Board finds the August 2014 opinion to be inadequate because the examiner failed to show consideration of pertinent medical evidence of record. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In this regard, the August 2014 examiner did not show consideration of medical treatment records for the Veteran's pre-service bilateral knee condition, to include the December 2006 right tibial tubercle osteotomy and the November 2008 diagnosis of overuse syndrome of the bilateral knees. See 04/27/2010 STR Medical at 20, 33 and 38. The August 2014 examiner failed to show adequate consideration of this pertinent medical evidence, and is thus afforded little to no probative value. On remand, the examiner is asked to consider and specifically address this pertinent medical evidence when rendering an opinion on the etiology of the Veteran's bilateral knee condition. The Board further finds the August 2014 VA medical opinion to be inadequate because it is internally inconsistent and lacks an adequate rationale. A medical opinion is considered adequate "where it is based on consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one." Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); see also Nieves-Rodríguez v. Peake, 22 Vet. App. 295 (2008). Here, the August 2014 examiner reported that it was not possible to determine the baseline level of severity for the Veteran's right knee condition that pre-existed service. See 08/27/2014 C&P Exam at 11. Specifically, the examiner indicated that because the Veteran had several knee conditions and injuries prior to military service along with several aggravating in-service injuries to the bilateral knees, it would be mere speculation to determine whether the Veteran's current bilateral knee condition was due to natural causes or aggravated by service. However, the examiner also opined that "it is reasonable to assume that the patient aggravated his pre-existing problems during his military service." See id. at 11. If the record shows that the Veteran's right knee condition worsened in service, under § 1153, "the burden shifts to the Secretary to show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease." Horn v. Shinseki, 25 Vet. App. 231, 235 n.6 (2012) (citing Wagner, 370 F.3d at 1096). Thus, the opinion must address, if applicable, whether the record establishes clearly and unmistakably that the worsening in service was due to natural progression. The opinion must be supported by adequate reasoning that reflects consideration of the evidence of record, to include the Veteran's lay statements describing the rigors of basic training and the pertinent medical evidence of record. The matter is REMANDED for the following action: Schedule the Veteran for an addendum medical opinion by an appropriate VA clinician to determine the nature and etiology of his bilateral knee condition. The VA clinician must conduct a review of the evidence in the claims file, including a complete copy of this Remand. If the clinician determines that an in-person examination is necessary to respond to this request, then a VA examination (or telehealth interview if an in-person examination is not feasible due to the current pandemic) should be so scheduled. Based on a review of the claims file, including a copy of this Remand, the examiner should address the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's current left knee condition began during or is causally related to service? (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's pre-existing right knee condition was aggravated (a permanent increase in severity) during service? (c.) If so, is there clear and unmistakable (i.e., medically undebatable) evidence that this increase in disability was due to the natural progression of the right knee condition? In particular, the examiner is asked to show consideration of the following evidence: the Veteran's lay statements, to include his January 2021 Board hearing testimony; the Veteran's pre- and post-service treatment records; STRs; and the August 2014 VA examination report and medical opinion. See 01/29/2021 Hearing Transcript, 06/03/2014 VA 21-4138, Statement in Support of Claim, and 06/10/2016 Form 9; 04/27/2010 STR Medical; 07/29/2016 Medical Treatment Record Non-Government Facility; and 08/27/2014 C&P Exam. A comprehensive rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Tremont 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.