Citation Nr: 22015667 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 18-50 956 DATE: March 18, 2022 REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a left hip disability, claimed as secondary to a left knee disorder, is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1965 to October 1967. The Board thanks him for his service to our country. The Veteran testified before the undersigned Veterans Law Judge during an October 2021 Board hearing. A transcript of the hearing is in the Veteran's e-folder. 1. Entitlement to service connection for a right knee disorder is remanded. The Veteran contends that he had a preexisting right knee disability that was aggravated by the physical activities of basic training, Advanced Individual Training and his duties as a Military Policeman in Germany. He asserts that he went to his entrance medical examination with a letter from his family physician stating that his knees were bad. See Board hearing transcript. The Veteran's wife testified that she knew the Veteran before active duty. After active duty, his knees were much more painful. She taught dance for many years and so was very cognizant of how people worked with their body. With the Veteran's hips and knees, she saw a continual digression where functionality was affected. See Board hearing transcript. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arthritis, listed in 38 C.F.R. § 3.309 (a), that manifest to a degree of 10 percent within one year of service separation. 38 C.F.R. §§ 3.303 (b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309 (a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303 (b). Subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. §§ 1111, 1132, 1137. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The regulations provide expressly that the term 'noted' denotes only such conditions as are recorded in examination reports, 38 C.F.R. § 3.304 (b), and that history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. Id. at (b)(1). In this case, there is a question as to whether the Veteran's right knee preexisted his active military service. The Veteran's September 1965 entrance report of medical history provides that he complained of "trick" or locked knee. The report of his September 1965 entrance medical examination provides that his left knee was stable and NCD [not considered disabling]. The examination report does not note any defects, infirmities or disorders with regard to his right knee. Therefore, with respect to the right knee, the presumption of soundness attaches. 38 C.F.R. § 3.304 (b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The most competent and credible evidence of record illustrates that the Veteran's right knee disorder did not clearly and unmistakably preexist service. In determining whether the condition preexisted service, a history of the condition noted on an entrance examination "will be considered together with all other material evidence in determinations as to inception." 38 C.F.R. § 3.304 (b)(1). The report of the Veteran's August 1967 separation medical examination provides that his lower extremities were normal on clinical evaluation. His August 1967 separation report of medical history provides that he complained of "trick" or locked knee. The report provides a physician's summary and elaboration of trick knee, left, 1963. The remainder of the Veteran's service treatment records are also absent of complaints, symptoms, findings or diagnoses related to the right knee. In this regard, the Board finds it significant that while the service treatment records contain July and September 1965 letters from the Veteran's physician stating that he had treated the Veteran for hypothyroidism, they contain no letter from the Veteran's physician stating that he had treated the Veteran's right or left knee. The Veteran's entrance and separation reports of medical history do not specify that the "trick" or locked knee was on the right side. His service treatment records, including the reports of the entrance and separation medical examinations, are absent any complaints, symptoms, findings or diagnoses of the right knee. The Veteran asserts that his private knee surgeon, Dr. Kepley, believes that his active duty aggravated a preexisting left knee disorder. However, the Veteran has made no such assertions regarding his right knee disorder. See July 2017 Notice of Disagreement (NOD) and October 2021 Board hearing transcript. For these reasons, the Board finds that the evidence is not clear and unmistakable that the Veteran's right knee disability preexisted service. As a result, the question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Veteran has a current diagnosis of right total knee replacement with pre-operative and post-operative diagnoses of degenerative arthritis, right knee, the evidence of record persuasively weighs against finding that his right knee disorder began during service or is otherwise related to an in-service injury, event, or disease or that arthritis was manifested to a compensable degree within the first post-service year. The Veteran stated during his hearing that his knee conditions got worse after service. VA has not provided the Veteran an examination or sought a medical opinion concerning his right knee. However, there is an indication of an in-service event, injury, or disease, and some indication that the claimed disability may be associated with an established event, injury, or disease. Therefore, a VA medical opinion should be obtained. 2. Entitlement to service connection for a left knee disorder is remanded. The Board remands this issue for a supplemental medical opinion regarding the etiology of the Veteran's left knee disorder. Private treatment records show that the Veteran underwent left knee replacement surgery in December 2014. The final diagnosis was degenerative arthritis, left knee. The report of a March 2017 VA Knee and Lower Leg Conditions examination provides a diagnosis of status-post left total knee replacement. The report of the Veteran's September 1965 entrance medical examination provides that his left knee was stable and NCD [not considered disabling]. The examination report does not note any defects, infirmities or disorders with regard to his right knee. Therefore, with respect to the left knee, the presumption of soundness attaches. 38 C.F.R. § 3.304 (b). However, his September 1965 entrance report of medical history provides that he complained of "trick" or locked knee. His August 1967 separation report of medical history also provides that he complained of "trick" or locked knee, and further provides a physician's summary and elaboration of trick knee, left, 1963. The Board must initially determine whether the presumption of soundness has been rebutted. See Gilbert, supra (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). To the extent that a March 2017 VA examination report addresses the question of a preexisting condition, the examiner assumed that a left knee disorder preexisted service. The examiner also failed to offer an opinion regarding direct service connection. Accordingly, the Board finds that a remand for a supplemental medical opinion is warranted. 3. Entitlement to service connection for a left hip disorder, claimed as secondary to a left knee disorder, is remanded. Because a decision on the remanded issue of service connection for a left knee disorder could significantly impact a decision on the issue of service connection for a left hip disorder, the issues are inextricably intertwined. A remand of the claim for service connection for a left hip disorder, claimed as secondary to a left knee disorder, is required. The matters are REMANDED for the following action: 1. Please obtain any outstanding VA and non-VA treatment records. 2. Please obtain a medical opinion from an appropriate clinician regarding the etiology of the Veteran's right knee disorder. The clinician is requested to address the following question: (a.) is it at least as likely as not that the Veteran's right knee disability is related to the Veteran's active military service, to include the physical activities of basic training, Advanced Individual Training and his duties as a Military Policeman in Germany and his reports that his knee condition got worse after service. 3. Please obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran's left knee disorder and left hip disorder. The clinician should opine on the following: a. Is there clear and unmistakable evidence that a left knee disorder preexisted the Veteran's entry into service? The clinician should consider and specifically address the Veteran's September 1965 entrance report of medical history indicating "trick" or locked knee; the Veteran's assertions, made on a July 2017 NOD and during the October 2021 Board hearing, that his private knee surgeon, Dr. Kepley, believes that his active duty aggravated a preexisting left knee disorder; and the Veteran's assertions during the October 2021 Board hearing that he went to his entrance medical examination with a letter from his family physician stating that his knees were bad. [The Board informs the opinion provider that "clear and unmistakable" refers to evidence that is obvious, manifest, or undebatable because it cannot be misinterpreted and misunderstood.] b. If the answer to question (a) is yes, was any increase in left knee disorder during service clearly and unmistakably due to the natural progress of the disease? c. If the answer to question (b) is no, is it at least as likely as not that a left knee disorder is related to the Veteran's active military service? If, and only if, the clinician finds that any increase in left knee disorder during service is not clearly and unmistakably due to the natural progress of the disease and that it is at least as likely as not that a left knee disorder is related to the Veteran's active military service, the clinician should opine on the following: d. Is it at least as likely as not that any left hip disorder is proximately due to the Veteran's left knee disorder; and e. Is it at least as likely as not that any left hip disorder is aggravated (defined as any increase in disability) by the Veteran's left knee disability? If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The clinician must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If the clinician cannot provide an opinion without resort to speculation, the clinician should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 4. Please confirm that the VA medical opinion provided comports with this remand, specifically that the standard for any secondary aggravation medical opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If the secondary aggravation medical opinion does not comport with the remand, obtain another medical opinion. 5. After undertaking any other appropriate development, readjudicate the issues on appeal, to include entitlement to service connection for a left hip disorder, secondary to left knee disorder. If either benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Davitian, 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.