Citation Nr: 22011872 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 13-18 638A DATE: March 2, 2022 REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a left knee disability, is remanded REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from April 1977 to March 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In October 2020, the Board last remanded this matter to the RO for further development. Entitlement to service connection for left and right knee disabilities Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Board notes that in cases where a veteran seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss application of the presumption of soundness. See Quirin v. Shinseki, 22 Vet. App. 390, 394-97 (2009). While the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111, see 38 C.F.R. § 3.303(c), if it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-97. VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Here, the Veteran's entrance examination is silent as to any knee disorders. He was last afforded a VA opinion in October 2021, which includes comprehensive findings concerning the Veteran's non-congenital and congenital knee disabilities. With respect to congenital conditions, the October 2021 VA clinician identified bilateral congenital mild collateral ligament and patellar ligament laxity as a congenital condition associated with the Veteran's knees during the pendency of the appeal. The October 2021 VA clinician opined, with rationale and citations to medical literature, that is it impossible to determine the extent to which the Veteran's congenital bilateral collateral ligament and patellar ligament laxity is a disease or defect without resorting to mere speculation. As such, the VA clinician provided negative nexus opinions for whether the Veteran's bilateral congenital mild collateral ligament and patellar ligament laxity is a congenital disease or a congenital defect. For his negative nexus opinion concerning whether the Veteran's disorder is a congenital disease, the VA clinician used the "less likely than not" standard. However, as noted above, for congenital diseases, the presumption of soundness may still apply and, therefore, VA may have to show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. The Board notes that clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993). Accordingly, in light of the October 2021 VA clinician's mere speculation finding concerning whether the Veteran's bilateral congenital mild collateral ligament and patellar ligament laxity is a congenital disease or defect, a remand is warranted for an addendum opinion that assumes the Veteran's condition is a congenital disease and addresses whether there is clear and unmistakable evidence that the Veteran's bilateral congenital mild collateral ligament and patellar ligament laxity pre-existed his active service and whether there is clear and unmistakable evidence that his bilateral congenital mild collateral ligament and patellar ligament laxity was not aggravated by his active service. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. The last VA treatment of record is dated August 2021. 2. Then obtain an addendum VA opinion from an appropriate medical professional to address the Veteran's claims for service connection for right and left knee disabilities. The claims file, to include a copy of this Remand, must be available to and be reviewed by the examiner. Any indicated tests and studies must be completed. The examiner is requested to respond to the following: (a) For the Veteran's identified bilateral congenital mild collateral ligament and patellar ligament laxity, and assuming such is a congenital disease, provide an opinion as to whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that the condition pre-existed the Veteran's active service. (b) If the Veteran's identified bilateral congenital mild collateral ligament and patellar ligament laxity is determined to have clearly and unmistakably pre-existed his active service, provide an opinion as to whether there is clear and unmistakable evidence that such was NOT aggravated (increased in severity) in service, i.e., did not undergo an increase in the underlying pathology during service, to include by reported exposure to contaminants in the water supply during service at Camp Lejeune. In other words, is it clear and unmistakable that any worsening of the disability was due to the natural progression of the disability? If it is found that there is clear and unmistakable evidence that the condition was NOT aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence support supporting his/her conclusions. (c) If it is determined there is NOT clear and unmistakable evidence establishing that the identified bilateral congenital mild collateral ligament and patellar ligament laxity pre-existed the Veteran's military service or was NOT clearly and unmistakably aggravated by his active service, the examiner should provide an opinion as to whether it is at least as likely as not that such condition had its onset in service or is otherwise related to service, to include the reported exposure to contaminants in the water supply during service at Camp Lejeune. The examiner is advised that the term "clear and unmistakable" is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. The term "at least as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. In providing the above opinions, the VA examiner should consider and address as appropriate: (1) the service treatment records reflecting both right and left knee complaints; (2) the 1979 VA examination reflecting a diagnosis of laxity in both knees in collateral ligaments and patella considered congenital; and (3) the Veteran's report of continuity of symptomatology of the knees during and since service. The examiner should comment on all questions above and set forth a complete rationale for all opinions provided. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Amanda Purcell, 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.