Citation Nr: 21041999 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-36 689 DATE: July 13, 2021 REMANDED Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disability is remanded. The Veteran had active service from April 1972 to April 1974. This comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was previously before the Board in March 2018, April 2019, December 2019, and August 2020, at which times it was remanded for further development. The Board now finds that additional remand is necessary, for reasons discussed further below. As an initial matter, the Board finds that the Veteran's complete service treatment records (STRs) are not currently associated with the claims file. VA has a duty to make reasonable efforts to assist a veteran in obtaining evidence necessary to substantiate a claim for disability compensation. 38 U.S.C. § 5103A. This duty to assist includes obtaining the veteran's service treatment records (STRs). 38 U.S.C. § 5103A(c). Whenever VA attempts to obtain records from a Federal department or agency under § 5103A(c), the efforts to obtain those records shall continue until the records are obtained, unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C. § 5103A(c)(2). In August 1982 and September 2018, the Veteran reported to VA examiners that he injured his left knee while playing softball during active duty in the Philippines. The Veteran now contends that his claimed right knee disability has been caused and/or aggravated by his left knee disability. As discussed by the September 2018 VA examiner and the Board in April 2019, no STRs related to service in the Philippines are currently associated with the claims file. The Board now also notes that there is no legible copy of any entrance examination currently associated with the claims file. The record does not reflect any documentation by the RO of its attempts to obtain complete and legible copies of the Veteran's STRs. Accordingly, the Veteran's right knee claim should be remanded to the RO to take appropriate steps to satisfy VA's duty to assist in obtaining complete and legible copies of the Veteran's STRs. As referenced above, the Veteran's right knee claim was previously before the Board in August 2020. At that time, the Board remanded the claim to obtain an adequate VA medical opinion. The deficiencies in previous VA examinations currently of record have been discussed by the Board in prior remands. A new VA medical opinion was obtained in September 2020; the Board finds this opinion to be inadequate as well. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Primarily, no medical opinion based on the evidence of record can be considered adequate until and unless VA has satisfied its duty to assist, as discussed above, by either obtaining the Veteran's STRs or reaching a reasonable certainty that such records do not exist or that further efforts to obtain those records would be futile. Further, the Board finds that the September 2020 VA examiner has failed to respond to the Board's August 2020 remand directives as they relate to the allegedly congenital nature of the Veteran's claimed right knee disability. In a July 2019 opinion and a May 2020 addendum opinion, a VA examiner expressed the belief that the Veteran's claimed right knee disability was congenital in nature, rather than the result of active service, either directly or as caused, or aggravated, by the Veteran's service-connected left knee disability. The July 2019 VA examiner stated that the Veteran had a bilateral patellar abnormality that "leads to a congenital nature for it." Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This is referred to as the "presumption of soundness." To rebut the presumption of soundness requires a two-step analysis in which the burden is entirely on VA. It must be established by clear and unmistakable evidence that the disability existed prior to service and that the disability was clearly and unmistakably not aggravated by the Veteran's service. See Wagner v. Principi, 370 F. 3d. 1089, 1092 (Fed. Cir. 2004). The "clear and unmistakable" standard is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003). In December 2019 the Board concluded that the presumption of soundness is in effect with regard to the Veteran's right knee. The Board now affirms that conclusion, particularly in light of the above discussion concerning the lack of any legible entrance examination. In August 2020 the Board concluded that the VA examiner's rationale that the nature of the Veteran's claimed knee disability "leads to a congenital nature" was not sufficient to overcome the presumption of soundness, and remanded the Veteran's claim to obtain a new VA medical opinion that was responsive to this deficiency in the opinions of record. On remand, the September 2020 VA examiner stated, in pertinent part, as follows: "Unable to state with 50% or greater probability that the [V]eteran's right knee preexistent congenital disability was aggravated beyond natural progress during active duty service as there was nothing in medical records that would specifically state this. Review of records seem to indicate that the nature of the knee condition bilateral patellar subluxation would be a congenital condition (preceding active duty service) best described as defect. Unable to find conclusive evidence that the congenital defect was aggravated beyond natural progress as records available do not support this conclusion." The above opinion is inconsistent with the applicable law and, by extension, the Board's August 2020 remand directives. First, the examiner states only that "records seem to indicate" that the Veteran's right knee disability preexisted service. This is not adequate to overcome the presumption of soundness. As reflected by the Board's August 2020 remand directives, it is not the Veteran who must prove to a 50 percent or greater point of probability that a claimed disability did not preexist service, but VA that must demonstrate through clear and unmistakable evidence that a claimed disability preexisted service. Second, the examiner cited to a lack of "conclusive evidence" that the Veteran's purportedly congenital right knee disability was aggravated by his active service. This, again, is inconsistent with the applicable standard: if a disability is clearly and unmistakably found to have preexisted service (which has not been established in this case) the burden is on VA to demonstrate that such disability was clearly and unmistakably not aggravated by the Veteran's active service. In light of the foregoing, the Board concludes that the Veteran's right knee disability claim should be remanded for the RO to make appropriate attempts to locate and obtain complete and legible copies of the Veteran's STRs; and, subsequently, to obtain an adequate VA medical opinion as to the nature and etiology of the Veteran's claimed right knee disability. The matters are REMANDED for the following action: 1. Obtain complete and legible copies of the Veteran's service treatment records. If such records are unavailable this fact should be documented, and a formal finding of unavailability should be made with notice to the Veteran and his/her representative and they should be given an opportunity to respond. 2. After the completion of remand directive 1, forward the record and a copy of this Remand to the VA examiner who provided the September 2020 medical opinion. The entire record should be made available for review, to include a complete copy of this remand. Upon review of the record, the examiner must provide an opinion as to: (a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has right knee disability that was incurred in or caused by service. (b.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran has right knee disability that is proximately due to service-connected left knee disability. (c.) If the examiner believes the Veteran's right knee disability pre-existed service, the examiner must also provide an opinion as to whether the Veteran's right knee disability clearly and unmistakably preexisted his entrance into active service and; if so, whether such disorder clearly and unmistakably did not increase in severity (beyond natural progression) during service. Any such clear and unmistakable evidence must be specifically identified. If the examiner finds the Veteran's right knee disability clearly and unmistakably pre-existed service, and the examiner determines that the Veteran's condition is congenital, the examiner must clinically distinguish whether such condition represents a congenital defect ora congenital disease. If the examiner finds the Veteran's condition to be a congenital defect, a condition that is generally static in nature, then the examiner must also provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that there was a superimposed disease or injury on the congenital defect during active military service. If yes, please identify the superimposed disease or injury, as well as the resultant disability due to such superimposed disease or injury. A complete rationale must be provided for each opinion given. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.