Citation Nr: 1342353 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 09-42 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Arif Syed, Associate Counsel INTRODUCTION The appellant had periods of active duty for training (ACDUTRA) from February 1978 to March 1978 and from February 1982 to April 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction currently resides at the RO in Cleveland, Ohio. In June 2013, the appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims folder. The Board observes that the appellant filed a claim of entitlement to service connection for a right knee disability in April 1982 that was denied in a June 1982 rating decision. Thereafter, in July 1982, service treatment records dated February 1982 which document treatment for the appellant's right knee, as well as an April 1981 service enlistment examination were associated with the appellant's claims folder. Under 38 C.F.R. § 3.156(c)(1) (2013), "at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim ... Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury or disease ... (ii) Additional service records forwarded by the Department of Defense or the service department of VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim." The Board finds that the April 1981 and February 1982 service treatment records are clearly relevant and of probative value to the appellant's right knee disability claim, as it provides evidence of whether his right knee disability pre-existed his period of ACDUTRA from February to April 1982. The Board therefore finds that the claim must be reconsidered pursuant to 38 C.F.R. § 3.156(c). The Board has reviewed the appellant 's claims folder and the record maintained in the Virtual VA paperless claims processing system. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant is claiming entitlement to service connection for a right knee disability, which he contends is due to his period of ACDUTRA from February to April 1982, specifically due to an injury sustained from running during basic training. See, e.g., the June 2013 Board hearing transcript, pgs. 8-9. The appellant's service treatment records document treatment in March 1982 for right knee pain secondary to running. At that time, the appellant reported that he underwent removal of the right medial and lateral meniscus in 1981 due to an injury from playing football. This surgery is also documented in service treatment records dated in February 1982. Following examination of the appellant, he was assessed with right medial and lateral meniscectomy, existed prior to service, as well as degenerative joint disease of the right knee, and was subsequently discharged from ACDUTRA due to physical disability. At the outset, the Board notes that generally, "[i]n order to qualify for VA benefits, a claimant . . . [must be] a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994); see D'Amico v. West, 209 F.3d 1322, 1327 (Fed.Cir.2000). A "veteran" is defined 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." 38 U.S.C.A. § 101(2) (West 2002). 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). 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). "The term 'Reserve' means a member of a reserve component of one of the Armed Forces." 38 U.S.C.A. § 101(26). With respect to members of the Army National Guard or Air National Guard, active duty for training (ACDUTRA) is defined as full-time duty under section 316, 502, 503, 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22)(c). The Board notes that veterans who serve on regular active duty are entitled to several presumptions -- such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service -- to assist them in substantiating their service connection claims. 38 U.S.C.A. §§ 1111, 1112, 1153 (West 2002); 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309 (2013). However, the presumption of sound condition does not apply to an appellant whose claim is based on a period of ACDUTRA who has not previously established veteran status. Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). Moreover, "where a claim is based on a period of [ACDUTRA], the presumption of aggravation under [38 U.S.C.A.] § 1153 is not applicable." Id. at 48; see Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010). In the instant case, the appellant has yet to achieve veteran status by virtue of his ACDUTRA service. In this regard, the Board notes that the appellant's DD 214 reflects that he was serving on ACDUTRA from February 5, 1982 to April 5, 1982. Although the record also indicates a period of ACDUTRA from February 12, 1978 to March 27, 1978, no service treatment records are of record from this period service. On remand, VA should attempt to obtain the appellant's complete military personnel records and associate these records with the claims folder. The AOJ should also obtain service treatment records from the appellant's period of ACDUTRA from February to March 1978. Additionally, the appellant was afforded a VA examination in October 2009 in order to determine the etiology of his right knee disability. The VA examiner noted the appellant's pre-existing injury to his right knee and medial and lateral meniscal repair to the right knee in 1981 as well as the appellant's in-service injury in 1982 from running. After examination of the appellant and consideration of his medical history, the VA examiner diagnosed the appellant with chronic right knee strain with degenerative joint disease and concluded that it is less likely than not that the appellant's current right knee disability is a result of the injury that he sustained from service in 1982, and it is more likely than not that his current right knee degenerative joint disease is related to his prior medial and lateral meniscectomy. He further opined that it is less likely than not that the appellant's one-time injury of the right knee described as medial collateral ligament sprain aggravated his current right knee disability beyond its normal progression. Crucially, however, the VA examiner did not provide a rationale for his conclusions. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) [the failure of the physician to provide a basis for his/her opinion goes to the weight or credibility of the evidence]. As such, the Board finds that the October 2009 VA opinion is inadequate for evaluation of the appellant's claim. Moreover, there is no other medical opinion of record that addresses the etiology of the appellant's right knee disability. The Board also notes that at the June 2013 Board hearing, the appellant indicated that he receives Social Security Administration (SSA) disability benefits. See the June 2013 Board hearing transcript, pgs. 21-22. There is no indication in the record that any attempts have been made to obtain these records and, indeed, his SSA records are not currently in the claims file. Therefore, on remand, any determination pertinent to the appellant's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). The Board finally notes that at the June 2013 Board hearing, the appellant stated that he received private treatment, to include surgery, for his right knee prior to his second period of ACDUTRA. See the June 2013 Board hearing transcript, pgs. 13-14, 18. He indicated that this treatment was possibly at the Ford General Hospital. A review of the record reveals that these records have not been obtained and associated with the claims folder. Accordingly, the case is REMANDED for the following action: 1. Take appropriate steps to contact the appellant and obtain the names and addresses of all medical care providers who treated him for the claim remanded herein. Of particular interest are medical records from the Ford General Hospital and other treatment records pertaining to his right knee surgery in 1981 and records pertaining to surgery in 1978. After obtaining proper authorization, obtain any relevant records from these providers that are not already of record in order to ensure that complete records from these facilities are of record. 2. Attempt to obtain the Veteran's complete service personnel records. 3. Attempt to obtain the appellant's service treatment records from his period of ACDUTRA from February to March 1978 and associate these records with his claims folder. 4. Any determination pertinent to the appellant's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained from SSA and associated with the claims file. 5. If, after making reasonable efforts to obtain any outstanding records VA is unable to secure same or if after continued efforts to obtain Federal records VA concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the appellant should be notified in accordance with 38 C.F.R. § 3.159(e). The appellant must then be given an opportunity to respond. If additional service treatment records are not received, the appellant should be notified of alternate sources of records that can supplement the available service treatment records. 6. After the above development is completed, to the extent possible, obtain an opinion from a VA examiner with the appropriate level of expertise in order to determine the etiology of the appellant's right knee disability. The claims file and a copy of this remand should be forwarded to the examiner. If the examiner indicates that he or she cannot respond to the Board's question without examination of the appellant, such should be afforded to the appellant. The examiner should review the appellant 's claims file and provide an opinion as to the following: a. Did the appellant have a right knee injury or disease that pre-existed service? If yes, the examiner must cite to the evidence of record to support that conclusion. b. If the examiner finds that a right knee disability pre-existed service, is it at least as likely as not that the appellant's right knee disability increased in severity during his period of ACDUTRA from February to April 1982, specifically including his injury in February 1982 from running during military training? c. If the examiner finds that any current right knee disability did not pre-exist service, is it at least as likely as not that any current right knee disability had its onset during the period of ACDUTRA from February to April 1982, specifically including his injury in February 1982 from running during military training)? The examiner should indicate in his/her report that the claims folder was reviewed. The reasons behind all opinions expressed should be provided. 7. When the development requested has been completed, the case should be reviewed on the basis of additional evidence. If the benefit sought is not granted, the appellant and his representative should be furnished a supplemental statement of the case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).