Citation Nr: 1304470 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 08-06 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a left knee disorder. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active military service from February 1980 to February 1984. This appeal to the Board of Veterans' Appeals (Board) is from September 2006 and November 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In his February 2008 Substantive Appeal (on VA Form 9), the Veteran requested a hearing before the Board. But in another statement submitted later that same year, in November 2008, he withdrew that hearing request. 38 C.F.R. § 20.704(e) (2012). In December 2010, the Board remanded these claims to the RO via the Appeals Management Center (AMC) for further development and consideration. The AMC completed that requested development but continued to deny the claims in a February 2012 supplemental statement of the case (SSOC). In July and August 2012, the Board requested expert medical and addendum opinions regarding the claim of entitlement to service connection for a left knee disorder. A VA orthopedist provided this specialist's opinion. The Board has advanced these claims on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Although there is no disputing the Veteran has a left knee disorder, the most competent and credible evidence indicates it is unrelated to his military service, including to any injury to this knee while in service. 2. Arthritis of this knee did not manifest to a compensable degree within a year of his discharge from service, meaning by February 1985. 3. Service-connected disabilities also do not render him incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. CONCLUSIONS OF LAW 1. A chronic left knee disorder was not incurred in or aggravated by the Veteran's active military service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria also are not met for a TDIU. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 and 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act (VCAA) Upon receipt of a complete or substantially complete application for benefits, VA is tasked with satisfying certain procedural requirements outlined in the VCAA and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has mandated that VA ensure strict compliance with these provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Duty to Notify The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not of record that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103. These notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate or incomplete, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - such as in a statement of the case (SOC) or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran has the burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial, meaning outcome determinative of his claim, i.e., more than harmless. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this particular case at hand, the RO provided the Veteran VCAA notice concerning his claims by way of letters dated in June 2006, June 2007 and December 2010. The content of these letters reflects compliance with the pertinent statutory and regulatory provisions and case law, noted above. In the letters, the RO acknowledged his claims, notified him of the evidence needed to substantiate them, identified the type of evidence that would best do so, notified him of VA's duty to assist and indicated it was developing his claims pursuant to this duty. The RO also provided him all necessary information on "downstream" disability ratings and effective dates. As well, the RO identified the evidence it had received in support of his claims and the evidence it was responsible for obtaining. The RO indicated it would make reasonable efforts to assist him in obtaining all other outstanding evidence, provided he identified the sources of it. The RO also noted that, ultimately, it was his responsibility to ensure VA's receipt of all pertinent evidence. In its December 2010 remand of these claims, the Board explained to him that the claims file included reports of VA left knee examinations that did not include a medical nexus opinion addressing the etiology of his left knee disability, and specifically supporting the notion that it is related or attributable to his military service. The Board indicated such an opinion was necessary to support his left knee claim. One of the VCAA notice letters was not sent in the preferred sequence, having been provided after, rather than before, initially adjudicating these claims. But the AMC rectified ("cured") this timing defect in the provision of the notices by since readjudicating the claims in a February 2012 SSOC. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). B. Duty to Assist VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b), (c) (2012). In this case, the RO and AMC obtained all evidence the Veteran identified as being potentially pertinent to his claims, including his service and post-service treatment records, information upon which the Social Security Administration (SSA) relied in awarding him disability benefits, and information from his former employer. The RO and AMC also afforded him VA compensation examinations, and as mentioned the Board additionally requested and obtained a medical expert opinion. Hence, there is now the required evidence needed to address the etiology of his left knee disorder, including especially in terms of its claimed relationship with his military service. There also is the evidence needed to address the severity of his service-connected disabilities, including especially in terms of whether they are so severe as to render him incapable of obtaining and maintaining substantially gainful employment to, in turn, establish his entitlement to a TDIU. Given all that has occurred, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate his claims. See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose or result in any significant benefit to the Veteran and, instead, place even greater burden on VA's already limited resources). In deciding these claims, the Board has reviewed all of the evidence in his claims file, both his physical and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each and every piece of evidence). Rather, the Board's analysis below focuses on the most salient and relevant evidence, and on what this evidence shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board discuss its reasons for rejecting evidence favorable to him). II. Analysis A. Service Connection The Veteran attributes his present-day left knee disability to injuries he sustained to this knee during his military service. According to written statements he submitted in February 2007, April 2007 and December 2007, and in the hearing testimony he provided in June 2003 in support of other claims, he received treatment for the injuries on approximately 10 occasions during his active duty, had his knee checked within a year of his discharge from service, and experienced a flare-up of left knee symptoms when placed on an exercise program at a hospital in Biloxi, Mississippi. According to written statements he submitted in December 2007, February 2008, January 2009, February 2009 and July 2011, degenerative disease resultantly was diagnosed during his military service based on the knee injuries that had occurred during his service. He added that he had not reinjured this knee at any time since service and that he had received treatment for this knee while in the Reserves. Allegedly, the medication he was taking after service for ankle and back pain masked the pain he was experiencing in his left knee until a few years prior to 2007. He asserts this is the reason he refrained from reporting left knee pain for many years. He further asserts that he eventually became addicted to the pain medication, that he also smoked marijuana to alleviate or mask this chronic pain, which eventually necessitated his participation in a recovery program, after which the pain became evident because he was no longer taking the medication or smoking marijuana to alleviate it. He disputes the report of the VA examination performed in January 2011, in which the examiner found that the Veteran had injured his knee during the six-year period immediately preceding that examination. He also refutes Dr. S's expert medical opinion, which, as mentioned, the Board obtained to try and assist in deciding this appeal. The Veteran steadfastly maintains that the only injuries he sustained to his left knee were during his service, in 1980 and 1981. He also contends that Dr. S cannot say that a left knee injury did not happen in the military as he was not there and only members of the Veteran's unit know the truth. He argues that, if Dr. Sward had read the service treatment records (STRs), he would have realized the cause of the Veteran's left knee disability, rather than speculating about its etiology. The Veteran asserts that he did not mention his knee injury during the 1984 Army Reserve physical examination because, on that particular day, he was not experiencing any pain. Allegedly, thereafter, doctors began prescribing the pain medication that masked it. He asserts that, within the last 5 years, his VA doctor has told him that it is likely that his injury in service could be associated with his current pain. In support of his claims, the Veteran has submitted written statements of two former spouses, B.C. and J.D. According to these women, between 1986 and 1991 and 1992 and 2000 he complained of pain, including in his left knee. J.D. recalls him telling her that he was injured in the military. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1111, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.304, 3.306. Establishing entitlement to direct service connection generally requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or, at the very least, showing he has at some point since the filing of the claim; (2) competent and credible evidence of in-service incurrence or aggravation of a relevant disease or an injury; and (3) competent and credible evidence of a nexus or link between the injury or disease in service and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Certain diseases like arthritis are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year after service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). If chronicity (i.e., permanency) of disease or injury in service is not shown, or legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). See also Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Under § 3.303(b), an alternative method of establishing the second and third Shedden elements is through a demonstration of continuity of symptomatology. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (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. Savage, 10 Vet. App. at 495-96; see also Hickson v. West, 12 Vet. App. 247, 253 (1999) (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). To establish a showing of chronic disease in service, or within a presumptive period per § 3.307, a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic," is required. 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. Id. In-service notation of a condition does not require medical evidence where "the condition is of a type as to which a lay person's observation is competent." Savage, 10 Vet. App. at 497. However, although prong (3) does not require medical nexus evidence, "because it would not necessarily follow that there is a relationship between any present disability and the continuity of symptomatology demonstrated, medical evidence is required to demonstrate such a relationship unless such a relationship is one as to which a lay person's observation is competent." Id (citations omitted). A layperson is generally incapable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). So in certain instances lay evidence has been found to be competent with regards to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). This is not always the case, however, as in certain other instances laypersons have not been found to be competent to provide evidence in more complex medical situations, such as concerning a form of cancer. See also Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever); Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (concluding that a Veteran's lay belief that his schizophrenia had aggravated his diabetes and hypertension was not of sufficient weight to trigger VA's duty to seek a medical opinion on the issue). When this occurs, there must be supporting medical evidence. Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). In essence, then, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). A determination as to whether medical evidence is needed to demonstrate that a Veteran presently has the same condition he or she had in service or during a presumptive period, or whether lay evidence will suffice, depends on the nature of the Veteran's present condition (e.g., whether the Veteran's present condition is of a type that requires medical expertise to identify it as the same condition as that in service or during a presumption period, or whether it can be so identified by lay observation). Savage, 10 Vet. App. 488, 494-97. When, for example, a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, medical evidence is not always or categorically required when the determinative issue involves either medical diagnosis or etiology, but rather such issue may, depending on the facts of the particular case, be established by competent and credible lay evidence under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As held in Davidson, section 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence" such as actual treatment records). But see, too, Bardwell v. Shinseki, 24 Vet. App. 36 (2010) (indicating that, for non-combat Veterans providing non-medical related testimony regarding an event during service (or where the incident, event, injury or disease in question is not claimed to have occurred in combat), Buchanan is distinguishable; the lack of documentation in service records must be weighed against the Veteran's statements). A Veteran is competent to report what he can observe and feel through the senses. See Layno. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology" under 38 C.F.R. § 3.303(b). Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). But once evidence is determined to be competent, the Board must additionally determine whether the evidence also is credible, as only then does it ultimately have probative value. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted). In ultimately rendering a decision on appeal, the Board must analyze the competency, then credibility, and consequent probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). To this end, the Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the Federal Circuit Court, citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id., at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Veteran's Court similarly has declared that, in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory (meaning both competent and credible), the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing when he has testified. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). See, too, Macarubbo v. Gober, 10 Vet. App. 388 (1997) (similarly holding that the credibility of lay evidence can be affected and even impeached by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor). Service connection may be granted for a disease first diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Reasonable doubt concerning any matter material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 3.102. Regarding the Veteran's additional service in the Reserves, active military service includes disability resulting from injury or disease incurred in or aggravated during active duty (AD) and active duty for training (ACDUTRA) and disability resulting from injury, but not disease, incurred in or aggravated during inactive duty training (INACDUTRA) or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316, 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is sometimes referred to as "weekend warrior" training. These drills are deemed to be part-time training. Generally, an individual who has only Reserve or National Guard service (ACDUTRA or INACDUTRA with no AD) is not a Veteran as legally defined. In the service-connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to AD, would not apply to ACDUTRA or INACDUTRA. 38 U.S.C.A. §§ 1111, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Thus, service connection on a presumptive basis is not available where the only service performed is ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010) and Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). Additionally, National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the Federal military when they are formally called into the military service of the United States [and a]t all other times...serve solely as members of the State militia under the command of a state governor." See Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). "Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Thus, to establish status as a "Veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The mere fact that a claimant has established status as a "Veteran" for other periods of service (e.g., the Veteran's prior period of AD) does not obviate the need to establish that he is also a "Veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for him to achieve "Veteran" status and be eligible for service connection for disability claimed during his inactive service, the record must establish that he was disabled from an injury (but not disease) incurred or aggravated during INACDUTRA. See Id.; Paulson, 7 Vet. App. at 470. Turning now to the facts of this particular case. Post-service medical documents, including VA and private treatment records and private physicians' statements dated since 2001, reports of VA examinations conducted in June 2006, July 2007 and January 2011, and medical opinions dated in July 2012 and October 2012, confirm the Veteran currently has a left knee disability, variously diagnosed, including as degenerative joint disease or osteoarthritis. The questions are thus whether this disability is related to or the result of his active military service or whether the arthritis manifested to the required minimum compensable degree of at least 10-percent disabling within a year of his discharge from AD, keeping in mind there is no such presumption of service incurrence regarding his additional service in the Reserves, whether on ACDUTRA or INACDUTRA. As previously indicated, he served on AD from February 1980 to February 1984. During this time period, as alleged, he injured his left knee. In September 1980, he presented complaining of left knee pain. He reported that he had fallen off the back of a truck and hit his left leg on the tailgate. The examiner noted a hard knot three inches below the knee cap, diagnosed a bruised left patellar ligament, prescribed pain medication, and placed the Veteran on a profile of no running for the next 10 days. In October 1980, so the following month, the Veteran again presented complaining of left knee pain secondary to that same injury. The examiner noted the knee was unremarkable and that X-rays had revealed no abnormalities. He therefore diagnosed a resolving contusion of the left knee and recommended quadriceps exercises for this knee. About a year later, in September 1981, while playing basketball, someone fell on top of the Veteran, again hurting his left knee. That injury also was treated. The examiner diagnosed a soft-tissue injury, recommended no running or jumping during the weekend, and placed the Veteran on a 14-day limited duty profile. The Physical Profile Record lists the injury as a sprained knee. Later that month, an evaluating clinician noted this knee was improving. There was no further mention of any consequent left knee disability during the remainder of his AD service, which did not end until some 21/2 or so years later, in February 1984. During a November 1984 examination for enlistment into the U. S. Army Reserves, the Veteran reported that he had had swollen or painful joints, but denied any knee problems specifically. During a November 1988 examination some 4 years later for retention in the U. S. Army Reserves, he again denied any knee-related problems or issues. Both examiners observed no left knee abnormalities and normal clinical evaluations of the lower extremities. There is no evidence establishing that, from 1985 to 2000, the Veteran complained about or received treatment for his left knee. Beginning in May 2001, so over 15 years after his discharge from AD, he reported left knee pain but X-rays taken at that time revealed no acute process. Two months later, in July 2001, he reported that he had experienced the pain for three years, so only dating back to 1998 or thereabouts. In June 2002 he presented complaining of left knee and ankle pain. He reported that he had experienced the ankle pain since service, but that with regards to his left knee, there was no history of a precipitating event. On that date, a physician diagnosed a lateral meniscus tear. In November 2004, the Veteran reported left knee pain secondary to an intercurrent 1990 injury, so as a civilian. In May 2005, in a pain questionnaire in support of his claim for SSA disability benefits, he reported that he had begun experiencing pain in 1992, first in his back and then in his knees and ankles. In June 2005, he reported that he had experienced the left knee pain for years. Since then, he has continued to receive treatment for disability referable to his left knee, which, as mentioned, has been variously diagnosed, including as degenerative joint disease or osteoarthritis. He also has been issued a knee brace, crutches and a walker, and diagnostic testing and clinical workup has revealed multiple left knee abnormalities. More specifically, magnetic resonance imaging (MRI) in July 2002 revealed a minimal degenerative signal within the medial and lateral menisci. X-rays in November 2004 showed early synovial osteochondromatosis, a possible loose body, and a Pellegrini-Stieda calcification that rested in the old trauma to the medial collateral ligament or abducted tendon. X-rays in September 2007 and in February 2008 showed degenerative change in the left knee with fragmentation of the left tibia image, at least three loose bodies, and a Pellegrini-Stieda calcification. An MRI in November 2009 revealed a chronic tear and degeneration of the posterior horn/body junction of the medial meniscus with an acute to subacute strain of the meniscus tibia and meniscal femoral component of the medial collateral ligament, chronic pigmented scarring of the superficial medial collateral ligaments of a remote injury with mild superficial signal indicative of a mild recent sprain, chondromalacia of the medial compartment and along the anteromedial femoral condyle and a small Baker's cyst. In October 2009, during a VA outpatient consultation, the Veteran attributed his left knee problems to the two knee injuries described above in service. He indicated that, after those injuries until approximately 2007, his knee "got along well." In March 2010, while consulting with A. P., M.D., he reported that he had injured his left knee in the 1980s while playing baseball and that, since then, he had been having left knee pain. Several clinicians have addressed or at least attempted to address the etiology of the Veteran's left knee disability. During a VA examination in June 2006, the VA examiner acknowledged the medical history, noted above, but found that, based upon the available evidence of record, he would have to resort to conjecture and speculation to opine that the Veteran's present knee complaints are the direct and proximate result of any incident in service. During a more recent VA examination in January 2011, the examiner determined the degenerative changes in the Veteran's left knee and torn medial meniscus less likely than not related to his active military service. This examiner also found the tear at least as likely as not related to some traumatic event occurring within the six years immediately preceding that examination and the arthritis at least as likely as not related to the process of simple aging and the Veteran's body habitus (referring to him being overweight, severely elevated body mass index (BMI), and genetics). The examiner based this opinion on the evidence in the claims file, which he indicated does not establish left knee chronicity or continuity of symptomatology, shows conflicting statements from the Veteran regarding when his left knee pain initially manifested, and contains X-ray and MRI reports dated in 2001, 2004 and 2006, which show normal findings. In July 2012, at the Board's request, a VA orthopedic surgeon (medical expert), Dr. S, discussed the claimed relationship between the Veteran's left knee disability and the injuries he sustained to this knee during his active military service. This medical expert concluded it was very unlikely that any disability currently affecting the Veteran's left knee is related to his service and unlikely that the left knee arthritis initially manifested during the initial post-service year. In October 2012, after the Board requested that this medical expert provide supporting rationale for his opinion, he indicated in response that he had reviewed all four volumes of evidence in the claims file, including the STRs showing the in-service left knee injuries described and a normal left knee in 1984 and 1988, post-service treatment records showing 2001 as the earliest mention of left knee pain, and post-service test results showing abnormalities no earlier than this time period. He based his opinion on these records. He explained that it was less likely than not that the Veteran's left knee problems were caused by or the result of the early injuries in service, which he described as relatively minor. He pointed out those minor injuries in service had occurred early on, that the degenerative changes had developed later, and that the time frame from the original injury to the first complaint of knee pain is not logical or compatible with the Veteran's assertions. The Board must assess the credibility and weight to be attached to a medical opinion. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Provided an opinion includes adequate statements of reasons or bases, the Board may favor one over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this case, the Board finds the VA examiner's January 2011 and orthopedic surgeon's 2012 opinion probative, indeed, most probative of the relevant evidence concerning the determinative issue of causation. Both opinions are based on a review of the claims file and an accurate accounting of the clinical evidence of record and the Veteran's reported medical histories. In addition, the VA surgeon's opinion is supported by rationale, which, as the Board explained when requesting this supplemental comment, is where most of the probative value of an opinion is derived, not from mere review of the claims file or the opinion ultimately stated. Rather, far more important than either, is the reasoning employed in arriving at the ultimate conclusion. See Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board thus accords these opinions a lot of evidentiary weight, especially the specialist's opinion that was obtained to address the shortcomings and deficiencies in the other opinions that had been obtained to date. The Veteran has not submitted a medical opinion refuting those of the VA examiner and orthopedic surgeon. His assertions thus represent the only evidence of record doing so. Although he is competent to state that he has experienced left knee pain for a particular number of years, since pain is capable of lay observation, he is not competent to ascribe this pain to a particular diagnosis such as osteoarthritis or degenerative joint disease or, as importantly, relate or attribute these symptoms and diagnosis to any event, injury or disease during his military service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay observable symptoms, but lacking in medical training and expertise, is not competent to diagnose a medical condition, if not a "simple" condition, or to provide probative comment on its etiology). Moreover, even to the extent they are competent, the Board does not also find credible the Veteran's assertions that his left knee pain has manifested continuously since his service. In deciding claims, the Board must make an express credibility finding regarding lay evidence. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Over the years, when talking about his left knee and the problems he was having or had had with it, he reported so many different, conflicting, medical histories that he appears to have confused even himself. Years before filing his claim for service connection for a left knee disability, he never mentioned and even outright denied having left knee problems or issues, certainly not on a chronic or continual basis. In addition, after first reporting such problems in 2001, he admitted that he had been pain free in this knee for years or, at most, reported only a relatively short history of left knee pain (by that, meaning rather then recent onset starting years after his military service had ended). He now alleges that he did not report left knee pain prior to 2007 because the pain medication he was taking for other disabilities masked the left knee pain he would have been experiencing had he been off the medication. He also said he smoked marijuana as another means of masking his left knee pain. Curiously though, according to his treatment records dated in 2002, he reported such pain, so even before he now acknowledges having owned up to it. He presented with ankle and knee pain, attributed the ankle pain to an injury in service, but noted no precipitating event to which his left knee pain might be attributable. So even he did not associate the left knee pain he was experiencing at that time with his injuries to this knee during his service. Most tellingly, in 2004, he reported sustaining a left knee injury in 1990, so intercurrent trauma as a civilian. Following the filing of his claim for service connection for a left knee disability, he began reporting continuity of left knee symptoms since service. As well, he began reporting that his left knee injuries in service had caused the pain to initially manifest. These more recently reported histories, however, conflict with and indeed directly contradict those he reported earlier for the purpose of receiving appropriate medical care, rather than VA compensation. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration his statements, the Board may consider whether self-interest may be a factor in making such statements); Struck v. Brown, 9 Vet. App. 145 (1996) (discussing how contemporaneous medical findings may be given more probative weight than contrary evidence offered years later, long after the fact); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the Veteran wrote during treatment than to his subsequent assertion years later). See also Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The written statements from the Veteran's former spouses attesting that he complained of left knee pain from 1986 to 1991 and from 1992 to 2000 are not sufficient to establish continuity of left knee symptoms since service. J.D. was married to the Veteran from 1992 to 2000; therefore, any left knee pain the Veteran reported during that time period might have been due to the intercurrent injury he sustained to this same knee as a civilian in 1990. Similarly, B.C. was married to him from 1986 to 1991 so any left knee pain he reported in 1990 and 1991 also might have been due to that intercurrent 1990 left knee injury. Moreover, B.C.'s statement lacks specificity such that it is unclear whether, prior to 1990, the Veteran's left knee pain was continuous or persistent. There is no disputing the Veteran injured his left knee on two occasions during his active military service and, contrary to the Veteran's assertions, Dr. S, who offered the most recent opinions on the Board's request, acknowledged and considered those injuries in service in offering his expert opinion. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied on the absence of evidence in the Veteran's STRs to provide a negative opinion). The question is whether the Veteran's current left knee disability is related or attributable to those injuries in service, not whether those injuries in service occurred because even Dr. S accepted that they in fact did, although he considered them relatively minor. As the record stands, there is no competent and credible evidence relating those two injuries in service to the current left knee impairment or alternatively establishing continuity of left knee symptomatology since those injuries in service to otherwise establish this required nexus or cause-and-effect correlation. Indeed, even assuming for the sake of argument the Veteran had established continuity of symptomatology since those injuries in service, which, again, he has not, there still would need to be medical evidence associating his current symptoms and consequent disability with those he has experienced since service. And there is no such supporting medical opinion. There also is no competent and credible evidence of record establishing his left knee arthritis manifested, compensably or otherwise, prior to the 2000s. Arthritis must be objectively confirmed by X-ray. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. So it is not enough for him to say when he first had it. The Board thus concludes that a chronic (meaning permanent) left knee disability was not incurred in or aggravated by his service and may not be presumed to have been. A claimant is responsible for presenting evidence in support of his claim for benefits under the laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, though, the evidence is not in relative equipoise, meaning not evenly balanced for and against this claim. Rather, as the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application and the claim resultantly must be denied. B. TDIU The Veteran claims that the physical pain and daily weakness associated with his back, ankle and knee disabilities and his mental illness render him unable to work. Allegedly, he has a hard time sitting, standing, driving or walking for a long period of time and occasionally falls. He asserts this necessitates the use of a walker, which his work could not accommodate, and occasionally a cane for assistance. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; whereas if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more, and there must be sufficient additional disability to bring the combined rating to 70 percent or more. Id. Disabilities resulting from common etiology or single accident, or affecting one or both upper or lower extremities, are considered as one collective disability in determining whether these threshold minimum rating requirements of § 4.16(a) are met. Even if, however, a Veteran does not meet these threshold minimum percentage standards set forth in 38 C.F.R. § 4.16(a), he still may be entitled to a TDIU on an extra-schedular basis, provided he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must assess whether there are circumstances in the Veteran's case, apart from any non-service connected conditions and advancing age, which would justify a TDIU. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation "that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income..." In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment." And in this context, the Court noted the following standard announced by the United States Court of Appeals for the Federal Circuit in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). See, too, Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same. See 38 C.F.R. § 4.18. Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Id. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. Id. Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment. The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). That said, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Moreover, the degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the Veteran is indeed incapable of performing the physical and mental acts required by employment, and is not based solely on whether he is unemployed or has difficulty obtaining employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. See, too, 38 C.F.R. §§ 4.1, 4.15. Indeed, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. In this case, the Veteran's occupational background and educational attainment are satisfactory for employment purposes. According to the information he provided on his February 2007 TDIU application (VA Form 21-8940), he attended four years of high school. According to information SSA gathered in support of his claim for disability benefits with this other Federal agency, he had worked since service as a warehouse manager (1989 to 1996) and mechanic (1980 to 1984) and in a janitorial/custodial position (1994 to 2005). Since 2001, clinicians have discussed generally the effect of his depression and knee and back disabilities on his activities of daily living (ADLs) and occupation. None has indicated that the service-connected disabilities, even considered collectively, render him unemployable. According to the SSA, he filed a claim for disability benefits in February 2005 based on his back, knee and ankle problems, high blood pressure, high cholesterol and depression. In December 2006, SSA found him entitled to such benefits, effective February 2005, based primarily on osteoarthritis (of multiple joints, including the knees, back and ankles) and secondarily on depression. In a VA Form 21-4192 (Request Tor Employment Information In Connection With Claim For Disability Benefits), dated in July 2007, the Veteran's employer confirmed that the Veteran had resigned in April 2005. In a letter dated in October 2007, the employer elaborated that the Veteran had left that employment due to health reasons. During the most recent VA compensation examination in January 2011, the Veteran specifically indicated that his knee and back disabilities, only one of which is service connected, impeded him from working. As SSA found him disabled on account of both service-connected and nonservice-connected disabilities, the RO obtained a medical opinion addressing whether the service-connected disabilities, alone, render him unemployable. In July 2007, after conducting a VA examination of him, including concerning his service-connected back, right ankle and right finger disabilities, the evaluating VA examiner found that the Veteran's service-connected disabilities do not interfere with his ability to do sedentary, non-physical, work if he so chooses. The examiner based this unfavorable opinion on a review of the claims file and a physical evaluation of the disabilities at issue. Again, the Veteran has not submitted a medical opinion refuting the VA examiner's. In fact, even the Veteran does not assert that his service-connected disabilities, alone, render him unable to secure or follow substantially gainful employment. Rather, he claims that his left knee disability, which, as a result of this decision, is not service connected, plays a vital role in his inability to work. In light of this, the Board concludes that the criteria for a TDIU are not met. In reaching this decision, the Board considered the applicability of the benefit-of-the-doubt rule, but as the evidence is not in relative equipoise, instead, mostly against the claim, this rule has no application and the claim must be denied. ORDER The claim of entitlement to service connection for a left knee disability is denied. The claim for a TDIU also is denied. ____________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs