Citation Nr: 21042726 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-52 387 DATE: July 13, 2021 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to July 1968. This matter is on appeal to the Board of Veterans' Appeals (Board) from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge during a March 2020 hearing; a transcript of the hearing is of record. In a May 2020 decision, the Board remanded the claim for a medical opinion on the nature and cause of the Veteran's bilateral knee disability, to include whether each clearly and unmistakably pre-existed service and, if so, whether the evidence clearly and unmistakably shows that the bilateral knee disability was not aggravated in service. 1. Entitlement to service connection for a left knee disability is remanded. 2. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that his bilateral knee disabilities are related to or aggravated by performing physical duties as an equipment storage specialist in service. Specifically, he reported entering service with a prior operation in his right knee and trauma to his left knee. See March 2020 Hearing Tr. at 11. The Veteran has reported additional injuries that resulted from running during basic training and crumbling on the track due to his left knee, jumping out of the back of a semi-truck, and climbing, jumping, and rappelling in mountain school. See March 2020 Hearing Tr. at 15 and 16. On remand, the Veteran was afforded a VA examination to determine the nature and cause of his bilateral knee disability. The examiner was asked to opine on the following: (a.) Whether each separate knee disability clearly and unmistakably preexisted service. (b.) For each disorder that clearly and unmistakably existed prior to service, is there clear and unmistakable (undebatable) evidence that the disorder was not aggravated by the Veteran's period of service? (c.) For any disorder that did not clearly and unmistakably preexist service, if any, the examiner must provide an opinion regarding whether it is at least as likely as not(50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active service. The Board notes that clear and unmistakable is an "onerous" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West,17Vet. App.116, 131(2003). The examiner should note the Veteran's statement of a history of pre-service conditions is not, in itself, a definitive statement of the actual existence of pre-service conditions, even when such is recorded by medical examiners. With regard to the questions above, the Board emphasizes that each must be answered... The examination noted a diagnosis of knee cartilage restoration surgery bilaterally. The examiner took a history of the Veteran's disabilities where the Veteran reported significant bilateral knee injuries due to high school sports. With regard to the left knee, the Veteran recalled left knee cartilage and/or meniscal injuries and a left surgical repair around 1962. With regard to the right knee, the Veteran reported his knee often felt "out of joint", described knee laxity that did not improve; he reported right knee corrective surgery around 1965. The examiner noted the Veteran did not seek care in service for knee complaints, did not require duty restrictions and was never placed on a profile. The examiner opined that the Veteran's bilateral knee disabilities clearly and unmistakably pre-existed service and was not aggravated beyond its natural progression. By way of rationale the examiner noted a "[p]attern of baseline knee complaints as due to cartilage damage, and which required operative procedures as ETPS did not show any change in condition, or further advancement of condition as due to service." He further found that later findings of bilateral osteoarthritis of the knees was a likely medical outcome, "consistent post traumatic OA as due to competitive athletes during high school and early college years prior to service". He noted the Veteran's complaints of pain and swelling at times during service but found them "not materially different from flairs that pre-existed" and noted no in-service complaints or treatment. Turning to the evidence of record, the Veteran's service treatment records (STRs) are silent for complaints or treatment for any knee disabilities. The May 1964 entrance examination noted Veteran had an operation for right knee cartilage removal and the left knee had been injured but never operated on. An August 1964 letter from the Veteran's doctor to the Local Draft Board noted a fractured left humerus "with good response to treatment" and that the Veteran had "participated in athletics since recovery and I feel that his condition and prognosis is good". No other major issues were recorded, there was no mention of any bilateral knee disabilities. See STRs. The Veteran stated he had knee surgeries in 1972 and 1973, within 5 years of separation from active service. The Board finds that the September 2020 VA opinion is inadequate as it is based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. 460, 461 (1993) (an opinion based on an inaccurate factual premise has no probative value). The examiner failed to list all current diagnoses of the bilateral knees. A surgery to correct knee disabilities is not a diagnosis the Board is aware of and elsewhere in the opinion, the examiner noted osteoarthritis. Additionally, the examiner noted that there were no meniscus injuries but noted "cartilage and/or meniscal injuries" in the history. The examiner also failed to consider the Veteran's statements of knee surgeries in 1972 and 1973. Moreover, the Board notes that service connection is possible for disabilities first identified after service. 38 C.F.R. § 3.303 (d). The absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Finally, in a statement supporting his claim, the Veteran sufficiently identified medical records to assist in substantiating his claim. He identified, and submitted, private treatment records he labeled "B-10" three pages, from Corvallis Hospital for a 1972 knee surgery. See October 2016 Correspondence. The record itself is illegible but is sufficiently identified and could shed light on and help substantiate the Veteran's claim. VA has a duty to assist in obtaining sufficiently identified VA medical records. Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016). The matter is REMANDED for the following actions: 1. Update the record for VA and private treatment records. 2. Schedule the Veteran for a VA medical examination to address the nature and cause of his bilateral knee conditions. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms of his separate conditions. All necessary special studies or tests must be accomplished. 3. With regard to the bilateral knee disabilities, the examiner is asked to opine as to: (a.)Whether each separate knee disability clearly and unmistakably preexisted service. (b.) For each disorder that clearly and unmistakably existed prior to service, is there clear and unmistakable (undebatable) evidence that the disorder was not aggravated by the Veteran's period of service? The examiner must consider the question above as stated and respond using the standard posed in the question. The prior examination report did not address this question and is therefore inadequate. (c.) For any disorder that did not clearly and unmistakably preexist service, if any, the examiner must provide an opinion regarding whether it is at least as likely as not(50 percent or greater probability) that the disorder had onset in, or is otherwise related to, active service. The examiner must consider the question above as stated and respond using the standard posed in the question. The prior examination report did not address this question and is therefore inadequate. The Board notes that clear and unmistakable is an "onerous" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West,17Vet. App.116, 131(2003). The examiner should note the Veteran's statement of a history of pre-service conditions is not, in itself, a definitive statement of the actual existence of pre-service conditions, even when such is recorded by medical examiners. With regard to the questions above, the Board emphasizes that each must be answered. The examiner should take into consideration all of the evidence of record, to include in-and post-service medical records, as well as the lay statements concerning in-service incurrence and post-service symptomatology, accepted medical principles, and objective medical findings. All opinions expressed must be accompanied by supporting rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, Associate 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.