Citation Nr: 21040783 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 13-08 586 DATE: July 7, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from April 1968 to April 1970. Subsequently he served in the Army Reserve being discharged from his Reserve service obligation in April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in March 2017 and February 2019. Unfortunately, the Board finds that the matter on appeal must be remanded for further development before a decision may be made on the merits. Generally, a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Such conditions are considered to be pre-existing. When a pre-existing disorder is noted on entry, a veteran has the burden of showing that it is at least as likely as not that the disorder increased in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). If a veteran meets that burden and shows that an increase in severity occurred, the burden then shifts to VA to show whether such increase is clearly and unmistakably due to the natural progression of the pre-existing disability rather than due to service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 235 (2012); C.F.R. § 3.306(a). 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. § 3.306(b). The Veteran claims entitlement to service connection for a right knee disability. He claims that he entered his period of active duty with a pre-existing right knee which was then aggravated by service resulting in his current right knee disability. He asserts that his knee condition was aggravated during service and then persisted, without any reported treatment for 4 decades until 2009, when medical records show he began to seek treatment. The most recent Board remand in February 2019 was ordered in an attempt to obtain additional service records dated after the Veteran separated from active duty. Throughout the pursuit of his claim and appeal the Veteran has not been exact with his terminology related to his post-active duty service, referring to it at times as Army Reserve service and at other times as National Guard service. Unfortunately, these types of service are distinct, with records kept in different locations. The Veteran's ambiguity with respect to terminology has not helped in efforts to retrieve records. Most recently a large effort was expended to obtain National Guard records. However, the record does not show that the Veteran ever served in the National Guard. The evidence of record shows clearly that he served on active duty in the Army from April 1968 to April 1970. Subsequently, he served in the Army Reserve, being discharged from his Reserve service obligation in April 1974. There are service documents which verify this. In December 2021, the Veteran submitted a written statement which indicated that after he separated from active duty in April 1970, he entered the standby Reserve and was discharged from this in 1974. He specifically stated in the last week or June and first week of July 1971 he reported for training duty at Fort Irwin, California. He stated that he was on light duty at this time due to his right knee symptoms. He also stated that he was attached to a National Guard unit during this training period. The Board believes that any of the Veteran's records would be with Army Reserve records, and with a more specific time period one last attempt to obtain these records should be made. VA's duty to assist is heightened when records are in the control of a government agency. Gobber v. Derwinski, 2 Vet. App. 470 (1992). There are also multiple medical opinions of record, none of which fully address either the Veteran's complete medical history or the criteria for service connection in the present case. As such, another opinion is warranted. The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993). The matter is REMANDED for the following action: 1. Make one last attempt to obtain the Veteran's service personnel records and service treatment records related to his reported period of ACDUTRA, in the Army Reserve at Fort Irwin, California, for the period encompassed by the last week of June and the first week of July 1971. Document all attempts to obtain these records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the electronic claims file (ECF)in the form of a Memorandum. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified, and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. After records development is completed, the claims file should be sent to an appropriate examiner who should review the evidence of record to offer medical opinions. The examiner should indicate: Whether the right knee disability diagnosed in 2009, and which ultimately resulted in knee replacement surgery clearly and unmistakably pre-existed the Veteran's entry into active duty in April 1968? Whether it is at least as likely as not that the torn meniscus of the right knee could have existed from separation from service in 1970 until it was ultimately diagnosed in 2010? If so, is at least as likely as not that the right knee disorder increased in severity during service? Review the December 2012 letter from Dr. J.A., of VA Hospital Loma Linda, and explain what degenerative-processes of the right knee were present during service ending in 1970 considering normal radiology reports in 2009 and 2011. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Havelka, 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.