Citation Nr: 21040037 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 18-39 502 DATE: July 2, 2021 REMANDED Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a back condition, as secondary to his left knee condition, is remanded. Entitlement to service connection for a left hip condition, as secondary to his left knee condition, is remanded. Entitlement to service connection for a left shoulder condition, as secondary to his left knee condition, is remanded. REASONS FOR REMAND The Veteran had active service from August 1978 to October 1979. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an April 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In June 2020, the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge, and a transcript of that hearing has been associated with the claims file. Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's service connection claims. As an initial matter, the Board finds that there is evidence of outstanding VA and private treatment records which have not been associated with the claims file. Evidence indicates that there may be outstanding relevant VA treatment records. During his June 2020 hearing, the Veteran reported that he was treated at a VA Medical Center in Montana in the 1980s and has continued to receive VA treatment for the disabilities on appeal. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. In the same Board hearing, the Veteran reported that he received treatment from a neurologist and chiropractor for his claimed conditions. These records have not been obtained, and also considered potentially relevant to the issues on appeal. A remand is required to allow VA to obtain them. 1. Entitlement to service connection for a left knee condition is remanded. The Veteran's claim for a left knee disability must be remanded for a comprehensive opinion to address service connection based on aggravation of a pre-existing condition that was noted at service entry; he had left knee surgery prior to service which the service examiner noted on his entrance physical examination. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Cases in which the condition is noted on entrance are, however, still governed by the presumption of aggravation contained in 38 U.S.C. § 1153 (as opposed to that applicable under 38 U.S.C. § 1111 where the complained of condition was not noted on entrance into service). This statute provides that a pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In essence, the Veteran is bringing a claim for service connection for aggravation of his preexisting disorder, when that disorder is noted at service entrance. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Here, the initial burden falls on the Veteran to establish an increase in the severity of the preexisting disability by a preponderance of the evidence standard. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). VA may show a lack of aggravation by establishing with clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). See also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Aggravation is characterized by an increase in the severity of a disability during service, and a finding of aggravation is not appropriate in cases where the evidence specifically shows that the increase is due to the natural progress of the disease. Furthermore, temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). In essence, upon remand, the VA examiner must examine the possibility of aggravation of the left knee in the context of a pre-existing condition noted at service entry pursuant to 38 C.F.R. § 3.306. As noted above, VA regulations pertaining to the rebuttal of the presumption of soundness require the highly stringent standard of clear and unmistakable evidence that the Veteran's pre-existing disease or injury was not aggravated beyond the natural progress of the disorder by active duty service. In light of the foregoing, the Board finds that a VA opinion is necessary. 2. Entitlement to service connection for a back condition, as secondary to his left knee condition, is remanded. 3. Entitlement to service connection for a left hip condition, as secondary to his left knee condition, is remanded. 4. Entitlement to service connection for a left shoulder condition, as secondary to his left knee condition, is remanded. The Board notes that the Veteran has never been afforded a VA medical examination and medical opinion to determine the nature and etiology of his back, left hip and left shoulder conditions. In a July 2020 correspondence, the Veteran's chiropractor opines that the Veteran's in-service fall may have caused his current back condition, as well as altered the Veteran's gait, which could have resulted in other orthopedic conditions. This raises the possibility of direct service connection for this condition. Therefore, the Board finds that remand is warranted for a VA examination. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the issue of whether the Veteran's left knee condition is service connected, subject to this remand, has not been determined. As such, adjudicating or developing any secondary service connection claim would be premature. Furthermore, no medical examination has yet been obtained to diagnose and determined an etiology for these conditions. Therefore, a remand is necessary to ascertain the appropriate diagnoses and etiological relationship of these conditions. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records, to include a specific request for all paper and electronic records from VA facilities in Montana beginning in the 1980s. 2. Obtain and associate with the claims file any outstanding, relevant private medical records. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated him for his orthopedic conditions, and specifically for his private neurological and chiropractic treatment. 3. After associating any additional records with the claims file, forward the Veteran's claims file to an appropriate VA examiner. The examiner should receive a copy of this remand and review the Veteran's file. The examiner should consider all medical records associated with the file. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Based on review of the record, the examiner must provide a medical opinion which addresses whether it is clear and unmistakable that the Veteran's pre-existing left knee condition WAS NOT aggravated beyond the natural progress of the disorder by his active military service. In other words, please determine whether it is clear and unmistakable that there was no increase in disability during service or that it is clear and unmistakable that any increase in disability was due to the natural progress of the pre-existing condition. In rendering the requested opinion, the examiner must consider and discuss all pertinent medical and other objective evidence, as well as all lay assertions, to include any assertions as to onset and continuity of left knee symptoms. Specifically, the examiner should consider the Veteran's in-service treatment for various left knee problems. The examiner must consider and address the Veteran's contention that his left knee "gave out" resulting in him falling down the stairs of his ship, thereby injuring his left knee, and his other testimony as to the condition. The examiner must also address the October 18, 1979, medical board findings which note that the Veteran's knee gave out on him causing him to fall to the ground on numerous occasions, to include the findings which noted that the Veteran "has noted frequent painful giving way to the point where he has fallen on a number of occasions. He was evaluated in the Orthopedic Clinic and found to have a lax anterior cruciate ligament on the left with ten degrees recurvatum of the left knee. He also had a clinical examination and history compatible with chondromalacia of the left patella." All opinions must include a detailed explanation (rationale). The rationale must be consistent with the entire medical opinion and must be clearly stated. (By law, the Board may not rely on any conclusion that is unsupported by a thorough explanation. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).] 4. After completion of the above directives, forward the Veteran's claims file to an appropriate VA examiner. The examiner should receive a copy of this remand and review the Veteran's file. The examiner should consider all medical records associated with the file. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. Based on review of the record, the examiner must provide a medical opinion which addresses the following, as appropriate: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's claimed left hip, left shoulder and back conditions had its/their onset during military service or is otherwise related to his military service? In rendering the requested opinions, the examiner should consider the July 2020 statement of his chiropractor which opined that his back condition is the result of an in-service fall which caused the Veteran to have an altered gait, and that the injury increased the rate of degeneration of the lumbar discs. The examiner is requested to discuss whether the mechanism of injury was sufficient to cause or accelerate the currently shown degenerative changes. (continued on the next page) All opinions must include a detailed explanation (rationale). The rationale must be consistent with the entire medical opinion and must be clearly stated. (By law, the Board may not rely on any conclusion that is unsupported by a thorough explanation. If the examiner cannot provide an above opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).] T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.