Citation Nr: 1341198 Decision Date: 12/13/13 Archive Date: 12/20/13 DOCKET NO. 08-06 841A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from March to July 1970. He also served as a member of the Alabama National Guard from November 1982 to February 2005, with a period of active duty for training (ACDUTRA) in January 2004. This matter came before the Board of Veterans' Appeals (hereinafter Board) on appeal from an August 2006 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Montgomery, Alabama, which in pertinent part, denied the Veteran's claim of entitlement to service connection for a knee disorder. He perfected a timely appeal to that decision. In January 2012, the Board remanded the claim for further evidentiary development, including obtaining records from the Alabama Army National Guard as well as a medical opinion. Following the requested development, a supplemental statement of the case (SSOC) was issued in September 2012. Given the actions taken, the Board finds that there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). An Informal Hearing Presentation, prepared by the representative, dated November 18, 2013, is associated with the electronic file as maintained as part of the Virtual VA system; all electronic files have been reviewed in connection with the appeal. FINDING OF FACT Resolving all doubt in the Veteran's favor, residuals of a right knee torn medial meniscus, status-post arthroscopy, had its onset during a period of active duty for training. CONCLUSION OF LAW Residuals of a right knee torn medial meniscus, status-post arthroscopy, were incurred during ACDUTRA. 38 U.S.C.A. §§ 101, 1101, 1110, 5103, 5103(a), 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in June 2005 and October 2005 from the RO to the Veteran, which were issued prior to the RO decision in August 2006. An additional letter was issued in February 2012. Those letters informed the Veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the appellant complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding VA's duty to assist, the appellant was provided an opportunity to submit additional evidence. In addition, the RO obtained the Veteran's service treatment records (STRs), personnel records, and post-service medical records. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Veteran has been afforded an examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination report reflects that the examiner solicited symptoms from the Veteran, examined the Veteran, and provided conclusions and explanations necessary to evaluate the claim of service connection. Therefore, the examination is adequate. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. II. Factual background. The service treatment records (STRs) for the Veteran's period of active duty from January 1970 to July 1970, including the enlistment examination and the separation examination, are negative for any complaints or findings of a right knee disorder. A review of the National Guard records reflect that he was seen for complaints of knee pain in February 1994; it was noted that he had had pain in both knee, more right than left for the past several years. The impression was chondromalacia of the patella, bilaterally. In April 1994, the Veteran underwent diagnostic arthroscopy of the right knee, arthroscopic debridement of the patella, trochlear groove and medial compartment of the right knee, and resection of the large pathological medial synovial plica of the right knee. He was subsequently diagnosed with osteoarthritis and chondromalacia of the right knee. An annual medical certificate, dated in October 1995, indicates that the Veteran had a permanent profile in the record for a right knee disorder. A Statement of Medical Examination reflects that the Veteran injured his right knee in January 2004 at Eglin Air Force Base, Florida. Among the service treatment records (STRs) is line of duty determination (DA Form 2173), dated January 11, 2004, indicating that the Veteran was seen at the Eglin AFB Hospital on January 11, 2004 for evaluation of a trauma to the right knee which he sustained at the Eglin AFB on January 10, 2004. It was reported that the Veteran injured his right knee while working on range equipment. It was determined that the Veteran injured his right knee while in the line of duty. Also of record is the report of a medical evaluation board proceeding, dated in December 2004, wherein it was stated that the Board found that the Veteran had right knee pain, which existed prior to service and was permanently aggravated by service. It was recommended that the case be forwarded to the physical evaluation board for determination of fitness for duty. A similar finding was reported by the PEB in January 2005. The Veteran's claim for service connection for a bilateral knee disability (VA Form 21-526) was received in June 2005. The Veteran was afforded a VA examination in July 2006. It was noted that there was documentation dated July 22, 2004 that the Veteran injured his right knee while working on range equipment. The Veteran was reportedly under doctor's care for osteoarthritis in his knees. It was noted that the Veteran was claiming that he aggravated his pre-existing right knee disability while on weekend drill. It was noted that the record reflects that the Veteran suffered a knee injury with surgery in 1994, and he had another knee injury with resultant surgery in 2004. The Veteran reported right knee pain. The Veteran reported a history of a right knee disability. The Veteran reported injuring the right knee when he was working on a tank range; he stepped into a target pit and popped it and it began to swell. The Veteran indicated that he had surgery in the right knee, and he has arthritis in the knee. He stated that he experiences chronic pain, stiffness, swelling, weakness, redness, giving way, instability, lack of endurance, locking, and fatigability in the right knee. The pertinent diagnosis was minimum patellofemoral osteoarthritis. The VA examiner noted that the review of the literature states that osteoarthritis can occur secondary to joint instability caused by injury to a known ligament or meniscus cartilage tear. Review of the claims folder does state that the Veteran had a previous injury to his right knee. It was the examiner's opinion that the current right knee disability is at least as likely as not caused by or a result of the previous service-connected injury to the right knee. In September 2012, the RO forwarded the Veteran's claims folder to a VA examiner for review and opinion regarding the etiology of the Veteran's current right knee disorder. The examiner opined that the claimed disability, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an inservice-injury, event, or illness. The examiner explained that the record reflects that 10 years prior to the incident in question, the Veteran was already having early signs of osteoarthritis. Two months following the incident, the Veteran underwent arthroscopic right knee surgery at which time a torn meniscus was identified and addressed. The examiner further explained that the ongoing pain was reflecting the usual aging osteoarthritic disability. Received in September 2012 was a copy of Orders 009-023, dated January 9, 2004, notifying the Veteran that he had been ordered to annual training (AT) on January 9, 2004; he was to report to Eglin AFB, FL.. Also received in September 2012 was a statement from Sergeant M.A., a member of the ANG Headquarters Retired Activities Branch, indicating that the Veteran was on Active Duty for training when he received his injury while at Eglin AFB, FL in January 2004. III. Legal Analysis. Service connection is awarded for a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. §§ 1110, 1131. To establish a right to compensation for a present disability, a claimant must show: "(1) the existence of a present disability; (2) 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). Holton v. Shinseki, 557 F.3d 1362 (2009). The term "veteran" is defined in 38 U.S.C.A. § 101(2) (West 2002) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2013); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training (ACDUTRA) is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2013). The term inactive duty training (INACDUTRA) is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2013). Evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70 , for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and the claimant does not achieve veteran status for purposes of that claim."). Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, residuals of a head injury in service falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, supra (lay persons not competent to diagnose cancer). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran does not claim and the record does not show that right knee disability was incurred or aggravated during a period of active service. It is also not claimed or shown that arthritis was manifested within one year of active service. Service connection on a direct or presumptive basis from active service is not claimed or shown. The Veteran contends that his current right knee disorder is related to his National Guard service. Specifically, the Veteran maintains that his right knee disorder was aggravated by an injury which he sustained while on active duty training on January 10, 2004. While the evidence is conflicting as to whether right knee disability resulted from ACDUTRA service in January 2004, the Board finds that it is at least in equipoise. The record reflects that the Veteran injured right knee during a period of ACDUTRA service in January 2004. He clearly had right knee disability prior to this incident, including arthritis of the right knee. However, about two months after the injury, he underwent arthroscopic surgery to repair a torn medial meniscus. Service department findings are that right knee disability was aggravated by the injury and the initial VA examination in 2006 makes a similar conclusion. The surgical report in March 2004 references the ADCUTRA injury and slow healing progress that resulted in the surgery. Resolving all doubt in the Veteran's favor, the residuals of a right knee torn medial meniscus, status-post arthroscopy, was incurred during ACDUTRA. ORDER Service connection for residuals of a right knee torn medial meniscus, status-post arthroscopy, is allowed. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs