Citation Nr: 1317030 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 11-19 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial compensable rating for migraine headaches prior to December 31, 2012. 2. Entitlement to a rating in excess of 30 percent for migraine headaches for the period December 31, 2012 forward. 3. Entitlement to service connection for left knee arthritis, status-post arthroscopic partial meniscectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from February 1980 to February 1983, and he also had a period of active duty for training ("ACDUTRA") from March 17, 2007 to March 24, 2007. These matters come before the Board of Veterans' Appeals ("Board") on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in North Little Rock, Arkansas, which granted service connection for migraine headaches and assigned an initial noncompensable rating, effective August 25, 2009. The Veteran submitted a notice of disagreement and perfected an appeal. Thereafter, in an April 2013 rating decision, the VA Appeals Management Center ("AMC") increased the assigned disability rating to 30 percent, effective December 31, 2012. Despite the assignment of an increased disability evaluation for this disorder, the issue remains in appellate status because the Veteran has continued to express disagreement with the assigned ratings. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a rating decision issued after a notice of disagreement which grants less than the maximum rating available does not "abrogate the pending appeal"). The Board has previously considered these claims. In November 2012, the Board remanded the claims to the Agency of original jurisdiction ("AOJ") for additional development, specifically, to obtain additional service and VA treatment records and afford the Veteran new VA examinations. Thereafter, the claims were readjudicated. There has been substantial compliance with the November 2012 remand, as the Veteran has been provided the requisite examinations and all available treatment records have been obtained and associated with the record The claims have been returned to the Board for further appellate proceedings. The Board notes that a portion of the Veteran's records are contained in the Virtual VA system. Instead of paper, a highly-secured electronic repository is used to store and review every document involved in the claims process. Please note this appeal has been advanced on the Board's 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. For the period prior to December 31, 2012, the Veteran's migraine headaches were manifested by characteristic prostrating attacks occurring on an average once a month over the last several months. 2. For the period December 31, 2012 forward, the Veteran's migraine headaches were manifested by characteristic prostrating attacks occurring on an average once a month over the last several months without evidence that they are productive or capable of producing severe economic inadaptability. 3. The most probative evidence of record indicates that the Veteran's current left knee arthritis, status-post arthroscopic partial meniscectomy, is the result of an injury sustained during a period of ACDUTRA service. CONCLUSIONS OF LAW 1. Affording the Veteran the benefit of the doubt, for the period prior to December 31, 2012, a disability rating of 30 percent, but no higher, for migraine headaches is warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2012). 2. For the period December 31, 2012 forward, the criteria for a disability evaluation in excess of 30 percent were not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Code 8100 (2012). 3. Affording the Veteran the benefit of the doubt, the criteria to establish service connection for left knee arthritis, status-post arthroscopic partial meniscectomy, are met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 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 (2012). A.) Duty to Notify Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), the requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim, was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. The VCAA notice requirements apply to all five elements of a service connection claim. These are: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. With regard to the Veteran's claim of entitlement to service connection for left knee arthritis, status-post arthroscopic partial meniscectomy, a letter dated September 2009 afforded the Veteran notice of the types of evidence needed in order to substantiate his service connection claim, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). This letter also satisfied the requirements of Dingess by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. However, since the Board has concluded that the preponderance of the evidence is against the Veteran's claim, any questions as to the appropriate disability rating or effective date to be assigned are rendered moot, and no further notice is needed. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). With regard to the Veteran's claim of entitlement to higher initial ratings for migraine headaches, the Board notes that service connection had already been established and the current appeal arose, in part, from a disagreement with the initial assigned disability evaluation. The Court has held that where service connection has been granted, and the initial rating has been assigned, the service connection claim has been more than substantiated - it has been proven. See Dingess/Hartman v. Nicholson, supra. As such, 38 U.S.C.A. § 5103(a) notice is no longer required, since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is nonprejudicial. See Dingess, 19 Vet. App. at 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, No. 05-876 (U.S. Vet. App. May 19, 2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). Nevertheless, the Board notes that a July 2011 Statement of the Case ("SOC") informed the Veteran of the specific diagnostic code applicable to his service-connected migraine headaches. See Dingess/Hartman, supra; see also Mayfield v. Nicholson, 20 Vet. App. 537 (2006), citing Mayfield v. Nicholson, 444 F.3d at 1333-34 (holding that providing the claimant with notice followed by a readjudication of the claim in an SOC or Supplemental Statement of the Case "cures" any timing problem associated with the lack of notice prior to an initial adjudication). B.) Duty to Assist The Board is satisfied that the duty to assist has been satisfied. The claims folder contains the Veteran's service and post-service treatment records, VA examination reports dated October 2009 and December 2012, and the Veteran's statements in support of his claims, including those made during his October 2011 Board hearing. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain or that he felt were relevant to the claim that have not already been obtained and associated with the record. Review of the VA examination reports reveal that the examiners reviewed the pertinent evidence of record, elicited from the Veteran his history of headache and left knee symptomatology, performed a comprehensive examination along with a review of diagnostic test results, and provided clinical findings detailing the results of the examinations. For these reasons, the Board concludes that the examination reports are adequate upon which to make decisions on these claims. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal, and for the reasons expressed above, finds that the development of the claims has been consistent with the provisions of the VCAA. There has been substantial compliance with both the 2012 Board remand in that the Veteran was afforded the requisite VA examinations and an attempt to obtain any service treatment records from 2007 was made. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. 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 preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. 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 piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). A. Entitlement to a higher disability rating for migraine headaches. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, and by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries, and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate Diagnostic Codes ("DC") identify the various disabilities and the criteria for specific ratings. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue, and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). The Veteran's migraine headache disability has been evaluated under DC 8100, which provides ratings for migraine headaches. Migraine headaches with less frequent attacks than the criteria for a 10 percent rating are rated as non-compensably (0 percent) disabling. Migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months are rated 10 percent disabling. Migraine headaches with characteristic prostrating attacks occurring on an average once a month over last several months are rated 30 percent disabling. Migraine headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability are rated 50 percent disabling. 38 C.F.R. § 4.124a. The Veteran's application for service connection was received in August 2009, however, a review of VAMC treatment records shows that he was receiving treatment for complaints of migraine headaches as early as March 2004, when he received emergency treatment for a migraine that he had been experiencing for the previous two days. VAMC treatment records beginning in February 2007 show that he was seen for complaints of headaches that he said were occurring almost daily and were not sufficiently controlled by medication. In April 2007, during a neurology consultation, he complained of headaches twice a week with nausea and sensitivity to light. At that time, however, he reported that he had been experiencing daily headaches that lasted almost the entire day for the past two months. He also reported that he had had to sometimes miss work due to these headaches. In June 2008, his clinician recommended he reduce the amount of ibuprofen he was taking for headaches due to his history of liver surgery and elevated liver enzymes. By July 2009, he reported that his headaches were stable on ibuprofen. In October 2009, the Veteran was afforded a VA compensation and pension headaches examination. The examiner noted that the Veteran had been involved in a motor vehicle accident in 1980 during service and that service treatment records showed that he had been knocked semi-conscious and had been treated for wound care and released. The Veteran reported a history of chronic headaches ever since, manifested by one-sided severe head pain. He said the headaches were relieved by 800 mg. of ibuprofen. He endorsed nausea or vomiting, but denied that the headaches were prostrating. He said he was experiencing migraines 2-3 times per week. Upon physical examination, a cranial nerve evaluation was normal without evidence of scars. A funduscopic eye examination showed pupils reacted readily, and his reflexes were brisk and symmetrical, and he was found to have a normal gait and posture. The diagnosis was migraine headaches and the examiner opined that it was at least as likely as not that the current headaches were the same that he experienced in service. During an April 2010 VAMC evaluation, the Veteran reported an aggravation of his headaches. The examiner noted that he had not been taking his previously prescribed medications, so a new prescription, consisting of nortyptiline and Imitrex, was prescribed. In July 2010, the Veteran reported that he was now experiencing 4-5 headaches per week, but stated that his medications helped to ease his pain. He continued to report throbbing pain and sensitivity to light and noise. In September 2011, he was seen for emergency treatment for complaints of a headache that he had had for the past four days. He reported that this was his typical migraine, but that it had lasted longer than usual. He endorsed light sensitivity and reported that the pain now alternated from one side of the head to the other. Treatment was with an injection for pain and prescription medications. In December 2012, the Veteran was afforded a second VA headaches examination, at which time, he reported that he was experiencing prostrating headaches more frequently than once per month and that his typical headaches lasted less than one day. There were no significant findings on physical examination. The examiner noted that the migraines caused the Veteran to be prostrate about one hour per day, noting that while the headaches were severe, they did respond to medication. He added that they affected his daily routine as well as his ability to work. There are no additional treatment reports of record showing that the Veteran was treated for migraine headaches. After a careful review of the complete claims folder, the Board concludes that, for the period prior to December 31, 2012, the Veteran's migraine headaches more closely approximate the criteria for a 30 percent disability rating under DC 8100. As discussed above, treatment reports during this time show that the Veteran's headaches were manifested by characteristic prostrating attacks occurring on an average once a month over the past several months. Despite the fact that the October 2009 VA examiner indicated that the Veteran's headaches were not prostrating, VAMC treatment records clearly suggest otherwise, as the Veteran reported as early as 2007 that his headaches sometimes caused him to miss work. Subsequent treatment records show that, although he was taking medication that he said helped ease the pain, he still continued to experience migraines, as often as 4-5 times a week by 2010. For the period December 31, 2012, however, the Board finds that the Veteran's migraine headaches are not manifested by the requisite very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability that is required for a higher, 50 percent disability rating. In this regard, the Board has considered the December 2012 VA examiner's findings that the Veteran's headaches only result in his being prostrate approximately one hour per day and that the symptoms do respond to medication. The Veteran has not presented any additional evidence to show that his headaches result in his missing work to the point that would be required for the higher disability rating. In this regard, the Court has held that VA must instead consider all symptoms of a claimant's disability that affect the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). As such, the Board finds that, for this portion of the appeals period, a higher 50 percent rating is not warranted. In addition to the VA examinations and outpatient treatment reports, the Board has also considered the Veteran's personal statements regarding the severity of his disorder. In this regard, the Board is cognizant that the Court has repeatedly held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the Board places significantly more weight on the objective clinical findings reported during outpatient and treatment and the VA examinations than the Veteran's statements, as the Veteran is not shown to have the requisite training to determine the severity level of his service-connected migraine disorder. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board). Furthermore, the opinions and observations of the Veteran cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.124a with respect to determining the severity of his service-connected headaches. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159(a)(1) and (2) (2012). The Board has also considered the potential application of 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's migraine headaches with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology, as discussed above. The Board further observes that, even if the available schedular evaluation for the disability were inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his disability. Additionally, there is no persuasive evidence in the record to indicate that this disability would cause any impairment with employment over and above that which is already contemplated in the assigned schedular rating. The Board therefore has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Moreover, 38 C.F.R. § 4.1 specifically sets out that "[g]enerally, the degrees of disability specified 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." Factors such as requiring periodic medical attention are clearly contemplated in the Schedule and provided for in the evaluations assigned herein. What the evidence does not demonstrate in this case is that the manifestations of the Veteran's service-connected disability have resulted in unusual disability or impairment that has rendered the criteria and/or degrees of disability contemplated in the Schedule impractical or inadequate. Accordingly, consideration of 38 C.F.R. § 3.321(b)(1) is not warranted in this case. In sum, and for the reasons discussed above, the Board find that, for the period prior to December 31, 2012, the Veteran met the schedular criteria for a disability rating of 30 percent for his service-connected migraine headache disability. However, for the period December 31, 2012 forward, the criteria for a rating in excess of 30 percent rating have not been met. B. Entitlement to service connection for left knee arthritis, status-post arthroscopic partial meniscectomy. In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Federal Circuit has recently held that for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). Active military service includes disability resulting from injury or disease incurred in or aggravated during active duty and ACDUTRA and disability resulting from injury (but not disease) incurred in or aggravated during inactive duty training ("INACDUTRA"). 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. These drills are deemed to be part-time training. To the extent the Appellant is alleging that his disabilities are a result of injury or disease incurred or aggravated during his time in the Reserve, it must be remembered that only "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110, 1131 and 38 C.F.R. § 3.303(a). 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 fact that a claimant has established status as a "veteran" for purposes of other periods of service (e.g., his periods of active duty) does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA if 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 the Appellant 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 his INACDUTRA. See Mercado- Martinez, supra; Paulson, supra; Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Certain chronic diseases, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree of 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). This presumption, however, only applies to active duty service, not ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins, supra. In this case, the Veteran claims that he tore a ligament in his left knee in an accident that occurred during the week of March 16, 2007 to March 24, 2007 while he was on a period of ACDUTRA. During his October 2011 video conference hearing before the Board, he reported that slipped while walking through the woods, but said that he did not seek treatment for the condition at that time, as his knee did not bother him. Instead, he said that he waited until he returned home to Arkansas and received treatment at his local VAMC. As an initial matter, review of the Veteran's active duty service treatment reports reveals no evidence of a left knee disorder. His January 1980 service examination revealed normal findings for all systems, including the lower extremities. His February 1983 examination again revealed normal findings for the lower extremities, with no indication of any knee problems noted in the accompanying medical history report. The claims folder shows no evidence that the Veteran was diagnosed with left knee arthritis to a compensable degree within one year of active duty service. Accordingly, service connection on a presumptive basis is not for application. Review of the claims folder shows that the Veteran served a period of ACDUTRA between March 17 and March 24, 2007. In February 2007, prior to his Army reserves training, he was seen at the VAMC for complaints of chronic left knee pain with some locking. An x-ray revealed normal findings with joint spaces normally maintained and no bony abnormalities or joint effusion. Review of the available service treatment records for March 2007 shows that, on March 3, the Veteran performed an Army physical fitness test, which included performing a two-mile run. The test scorecard appears to show that he passed, as the only comment from the examiner was "go!" There are no treatment records for the Veteran's period of ACDUTRA service. As noted above, however, the Veteran reported that he did not seek treatment until after his reserves training. VAMC treatment records show that, on April 3, 2007, the Veteran was seen at the VAMC for an MRI of the left knee. The results revealed a degenerative tear involving the posterior body horn of the medial meniscus and mild degenerative changes within the patellofemoral joint. During a subsequent April 2007 visit with a VA orthopedist, the Veteran reported a several month history of left knee pain. A physical examination found distinct tenderness in the posterior medial corner with reduced range of motion. In May 2007, he underwent a left knee arthroscopic partial medial meniscectomy. Subsequent 2007 VAMC records show that he underwent several months of physical therapy for his left knee injury. In December 2010, the Veteran was seen at the VAMC for complaints of left knee popping for a few weeks. He said he had experienced flare-ups since his knee injury and subsequent surgery. In March 2011, he presented to the VAMC emergency room for complaints of left knee pain without any new trauma or strains. A physical examination revealed that he could fully flex and extend the knee without obvious laxity. In October 2011, the Veteran underwent a second arthroscopic medial meniscectomy, which revealed a degenerative posterior horn medial meniscus tear. In December 2012, the Veteran was afforded a VA compensation and pension examination for his left knee. The diagnoses were degenerative joint disease and medial meniscus tear. The examiner opined that it was as likely as not that the Veteran's left knee disorder was secondary to, related to and the result of his military training in March 2007. Having reviewed the complete evidence of record, the Board finds the most probative evidence to be the opinion of the VA examiner, who opined that the Veteran's left knee disorder was as likely as not related to his period of ACDUTRA. Significantly, the Board has also considered the Veteran's personal statements as to the etiology of his disability. In this regard, the Board observes that the Federal Circuit has held that medical evidence is not categorically required when the determinative issue involves either a medical etiology or diagnosis, but rather may, depending on the facts of the case, be established by competent lay evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Davidson reaffirmed the Federal Circuit's holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), that VA must consider the competency of lay evidence, and cannot reject outright such evidence on the basis that such evidence can never establish a medical diagnosis or nexus. In this case, although there are no service treatment records or personnel reports showing that the Veteran sustained a left knee injury during ACDUTRA, the medical evidence supports his assertion that he sought treatment for left knee pain immediately after returning home from training. Furthermore, based on a review of the record, the Board finds that there is no reason to doubt the Veteran's credibility as to his reports concerning the timing of his injury, as the Army physical fitness test that the Veteran performed just prior to his reserves training demonstrating that he was able to run two miles without any indication of a left knee injury at that time. Accordingly, the Board finds that the evidence is at least in equipoise with respect to the Veteran's claim. Consequently, the benefit-of-the-doubt rule applies, and service connection for left knee arthritis, status-post arthroscopic partial meniscectomy is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER For the period prior to December 31, 2012, entitlement to an initial disability evaluation of 30 percent, and no more, is granted, subject to the laws and regulations governing the payment of monetary awards. For the period December 31, 2012 forward, entitlement to a disability evaluation in excess of 30 percent for migraine headaches is denied. Entitlement to service connection for left knee arthritis, status-post arthroscopic partial meniscectomy is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs