Citation Nr: 1341369 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 09-00 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for left knee disability. 2. Entitlement to service connection for right knee disability. 3. Entitlement to service connection for left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran has served in the Army Reserves for more than 20 years. He served on active duty for training (ACDUTRA) from May 1988 to August 1988 and on active duty from February 2003 to October 2003 and from February 2004 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee that declined to reopen claims for entitlement to service connection for a right knee disability, a left knee disability, and a left shoulder disability. In December 2009, the Veteran testified at a hearing held before the undersigned Veterans Law Judge. In an October 2010 decision, the Board reopened all three service connection claims and remanded the appeal for additional development. FINDINGS OF FACT 1. The Veteran's posttraumatic arthritis of the left knee was aggravated by service. 2. The Veteran's posttraumatic arthritis of the right knee was aggravated by service. 3. The Veteran's left shoulder adhesive capsulitis and pain status post rotator cuff tear were aggravated by service. CONCLUSIONS OF LAW 1. Posttraumatic arthritis of the left knee was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. Posttraumatic arthritis of the right knee was incurred in service. 38 U.S.C.A. §§ 101, 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304 (2013). 3. Left shoulder adhesive capsulitis and pain status post rotator cuff tear were incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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 United States Court of Appeals for the Federal Circuit, citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2012). Moreover, the United States Court of Appeals for Veterans Claims 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). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of INACDUTRA during which the Veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty performed by Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed by Reserves. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Thus, with respect to the Veteran's Army Reserves service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Generally, a preexisting injury or disease will be considered to have been aggravated by active military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. The evidentiary presumptions of sound condition at entrance to service and aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service do not extend to those whose service connection claim is based on a period of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 44-45 (2010); 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); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); 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 claimant does not achieve Veteran status for purposes of that claim.") I. Left knee disability The Veteran contends that his left knee disability was aggravated by service. The Veteran's induction examination in October 1987 shows that his left knee disability was noted at entrance to service. Specifically, a consult was performed on the left knee as part of the induction examination and it notes status post left knee surgery for an old medial collateral ligament tear. An x-ray showed two staples. This is consistent with the Veteran's lay reports of having sustained a football injury to the knee in eighth grade that resulted in surgery. The orthopedist performing the consult noted the knee was non-symptomatic and the Veteran had a "suitable knee for military duty without restrictions." Therefore, the presumption of soundness does not apply to the Veteran's left knee disability. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). However, the Veteran may still establish service connection by showing evidence that the pre-existing condition was worsened or aggravated by service. In this case, the service treatment records (STRs) and private treatment records show that the left knee was reinjured and treated during periods of active duty service. He is currently diagnosed with posttraumatic arthritis of the left knee. The November 2010 VA examiner opined that the Veteran's military service "probably contributed to his knee pain and worsening of this arthritis." The VA examiner's opinion is afforded high probative value as it was made after a review of the relevant evidence, including the STRs, and contains a rationale for the conclusion reached. There is no evidence of record in conflict with the opinion. As such, service connection for a left knee disability (diagnosed as posttraumatic arthritis) is warranted. II. Right knee disability The Veteran contends that his right knee disability was caused or aggravated by service. He is currently diagnosed with posttraumatic arthritis. The first evidence of injury to the right knee is documented in a July 1988 STR that shows complaints of right lateral knee pain for two to three weeks and diagnosis of stable knee with friction. This injury took place during a period of ACDUTRA; therefore the evidentiary presumptions of soundness and aggravation do not apply. Smith; Paulson. However, the Veteran may still establish service connection by showing evidence that the in-service injury to the right knee is either 1) related to the current right knee disability; or 2) was worsened or aggravated by later periods of active duty service. While there is no medical opinion of record relating the Veteran's current right knee disability to the July 1988 complaint, there is medical evidence that his right knee disability was aggravated by service. STRs and private treatment records show that the Veteran sustained a major fracture of the right knee in August 1998 and eventually required surgery in 1999. These injuries and treatment occurred in between his periods of ACDUTRA and active duty service. The STRs contain a permanent physical profile dated January 2000 that diagnoses posttraumatic arthritis in both knees and permanently limits the Veteran from running. STRs corresponding to the Veteran's first active duty period show that in March 2003 his duties loading vehicles and equipment resulted in unbearable pain in both knees and on March 6, 2003, while mobilized for Operation Enduring Freedom, he fell off a train car while loading materials and sustained a right knee injury. A Line of Duty Determination shows that this injury was sustained in the line of active duty. Thus the Veteran reinjured his right knee during active duty service. STRs show continued symptoms, treatment, and work restrictions due to chronic right knee pain throughout the first and second periods of active duty service. The November 2010 VA examiner opined that the Veteran's military service "probably contributed to his knee pain and worsening of this arthritis." The VA examiner's opinion is afforded high probative value as it was made after a review of the relevant evidence, including the STRs, and contains a rationale for the conclusion reached. There is no evidence of record in conflict with the opinion. As such, service connection for a right knee disability (diagnosed as posttraumatic arthritis) is warranted. III. Left shoulder disability The Veteran contends that his left shoulder disability was aggravated by service; he is currently diagnosed with adhesive capsulitis and pain status post rotator cuff tear. Private treatment records show that left shoulder symptoms had their onset in 1996 and in July 1997 the Veteran had arthroscopic surgery on the left shoulder, followed by physical therapy. These events did not occur during a period of military service. When the Veteran entered his first period of active duty service in February 2003, there is no record of an entrance examination noting his left shoulder disability. Thus he is entitled to the presumption of soundness with respect to the left shoulder. There is clear and unmistakable evidence that his left shoulder disability preexisted his active duty service; namely the private treatment records showing the fracture and surgery in 1997. However, the presumption of soundness is not rebutted unless there is also clear and unmistakable evidence that the left shoulder disability was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). In fact, the medical evidence of record actually shows that the Veteran's left shoulder disability was aggravated by service. STRs include Line of Duty determinations showing that the Veteran sustained injuries to his left shoulder on active duty in February 2003 and June 2003. In January 2004 he underwent another surgery to the left the shoulder. In an addendum opinion, the November 2010 VA examiner found it was more likely than not that the left shoulder current disability (diagnosed as adhesive capsulitis and pain status post rotator cuff tear) is related to military service. The VA examiner's opinion is afforded high probative value as it was made after a review of the relevant evidence, including the STRs, and contains a rationale for the conclusion reached. There is no evidence of record in conflict with the opinion. There is no clear and unmistakable evidence that the Veteran's left shoulder disability was not aggravated by service and the presumption of soundness is not rebutted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Moreover, the preponderance of the evidence shows that the Veteran's left shoulder disability was indeed aggravated by service and that his current disability is related to service. As such, service connection for a left shoulder disability (diagnosed as adhesive capsulitis and pain status post rotator cuff tear) is warranted. ORDER Service connection for posttraumatic arthritis of the left knee is granted. Service connection for posttraumatic arthritis of the right knee is granted. Service connection for left shoulder adhesive capsulitis and pain status post rotator cuff tear is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs