Citation Nr: 1417384 Decision Date: 04/17/14 Archive Date: 05/02/14 DOCKET NO. 09-16 882 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a right knee disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The appellant's sole period of active service was active duty for training from July 1957 to January 1958, with additional service in the Marine Forces Reserve. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection for a right knee disorder. This matter was previously remanded by the Board in January 2013 and again in October 2013 for further procedural development. This appeal was processed using the Veterans Benefits Management System (VBMS) processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence is against a finding that the appellant's right knee disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A right knee disability was not incurred in or aggravated by active service, nor may it be presumed to have been. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board has previously remanded this matter in January 2013 and October 2013. The Board's January 2013 remand instructed the RO to: (1) obtain copies of any outstanding service treatment records and document the attempts in the file; (2) schedule the appellant for a VA examination for his right knee; and (3) after the necessary development readjudicate the claim. VA sent February 2014 and April 2014 requests for outstanding service treatment records, and received a May 2014 reply from the Marine Forces Reserve indicating that there were no additional records. The appellant was scheduled for and attended an August 2013 VA examination to determine the etiology of his claimed right knee disability. Ultimately, the appellant questioned the adequacy of this exam, and the Board requested a new opinion in the subsequent October 2013 remand. The RO then readjudicated the claim in a September 2013 Supplemental Statement of the Case (SSOC). The Board's October 2013 remand instructed the RO to: (1) return the claims file to the August 2013 examiner for an opinion regarding the appellant's claim that his preexisting right knee condition was aggravated by service; and (2) readjudicate the claim. The August 2013 VA examiner provided a December 2013 addendum opinion regarding the appellant's aggravation claim. The RO then readjudicated the claim in a February 2014 SSOC. As a result of these steps taken, the Board finds that there has been compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand orders of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). II. VA's Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2013). The duty to notify requires VA 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). Notice must be provided before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA complied with the duty to notify in a May 2007 letter, prior to the January 2008 rating decision now on appeal. The duty to assist requires VA to seek relevant records and to obtain a medical opinion when required. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In assisting the claimant in the procurement of service and other relevant records, VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency, and will make "reasonable efforts" to obtain relevant records not in the custody of a Federal department or agency. VA has satisfied its duty to seek relevant records. VA has obtained and associated service treatment records and VA treatment records with the file. The record indicates that VA made requests in February 2013 and April 2013 for the appellants treatment records while in the Marine Reserves. A May 2013 response from the Marine Forces Reserve indicated that no treatment records were on file. The record does not indicate and the appellant has not notified VA that additional VA medical records, private medical records, or relevant Social Security Administration records exist. The duty to assist includes providing an examination when one is required by law. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (provides an analysis of when an examination is required). When VA determines to provide an examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The opinion must be adequately supported and explained. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The appellant was afforded a VA examinations for his right knee disability in August 2013 with a corresponding addendum opinion in December 2013. The appellant and his representative have argued that both were inadequate. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Board addressed the appellant's concern with respect to the adequacy of the August 2013 examination by remanding for an addendum to the opinion concerning the appellant's assertion that a preexisting right knee condition was aggravated by service. In a March 2014 Brief, the appellant's representative asserts that the December 2013 opinion is inadequate because the examiner "never addresses the Veteran's reports of symptoms and history when providing his rationale." The Board recognizes that the examiner does not specifically discuss the appellant's reports in his rationale. However, the examiner clearly states that he has reviewed the entire claims file, which presumably would have included the appellant's statements, and he demonstrated a thorough and accurate understand of the appellant's history. When viewed in concert, the Board finds that the August 2013 and December 2013 opinions are adequate. The examiner reviewed the claims file, considered the appellant's relevant medical history, and provided a well-reasoned and adequately supported opinion with respect to both direct service connection and an aggravation analysis. There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). III. Service Connection for a Right Knee Disability Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. To establish entitlement to service-connected compensation benefits, 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 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); 38 C.F.R. § 3.6(c). 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); 38 C.F.R. § 3.6(d). 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. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Certain diseases, to include arthritis, generally may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.307, 3.309 (2011). The presumption pertaining to chronic diseases under 38 U.S.C.A. § 1112, however, does not apply to ACDUTRA or INACDUTRA service. Smith v. Shinseki, 24 Vet. App. 40, 46-47 (2010); see also Acciola v. Peake, 22 Vet. App. 320 (2008); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Nor does the presumption of sound condition at entrance into service or presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service apply to periods of ACDUTRA or INACDUTRA. See Smith, 24 Vet. App. at 45. Here, the appellant's sole period of active service was ACDUTRA from July 1957 to January 1958. Where a claim for service connection is based entirely on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. As the presumptive regulations do not apply to periods of ACDUTRA and INACDUTRA, the claim for aggravation of a preexisting condition during ACDUTRA must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. Here the appellant has claimed both that he did not have a pre-existing condition and that any pre-existing right knee condition he had was permanently aggravated by injuries sustained during his period of ACDUTRA. In his Form 9 Substantive Appeal, the appellant argued that VA focused on the injury prior to service, but that he "was accepted for enlistment into the USMC and [he] did hurt [his] knee while on active duty." A December 2012 Written Brief Presentation by the American Legion notes that it is the appellant's "contention that his knee condition was caused by, is due to, or was aggravated [by] time he spent on active duty while serving in the United States Marines." A September 2013 Appellate Brief Presentation makes a similar argument, contending both that the appellant did not have a pre-existing condition and that the current arthritis was caused by an in-service injury, and, alternatively, that any pre-existing condition that was aggravated by service. The Board will address both theories. In the absence of presumption, to establish service connection the appellant must establish the three Shedden requirements delineated above. The appellant has a current diagnosis of osteoarthritis in his right knee. The arthritis was originally diagnosed in boot camp, and was confirmed at the appellant's August 2013 VA examination. As a result, Shedden requirement (1) for service connection is met. Regarding requirement (2) and (3), service treatment records indicate that the appellant underwent surgery in 1956 to remove cartilage from his right knee. This surgery was noted in the appellant's July 1957 enlistment examination. No complications were noted. Service treatment records further indicate that during service the appellant was treated for a contusion of the right knee after he was struck by a pugil stick in training. The appellant had swelling of the right knee, but did not recall twisting his knee. The treating professional noted that he believed the appellant had a minimal medial collateral ligament weakness that existed prior to enlistment. X-rays taken at the time revealed Pelligrini's disease of the right knee with an arthritic spur of the posterior surface of the right patella. With respect to direct service connection, the August 2013 VA examiner reviewed the claims file, including the appellant's service treatment records. The examiner stated that the appellant's current disability is a result of the injury incurred prior to military service. The examiner opined that the condition was "less likely than not" a result of military service, and ultimately concluded that the appellant's "right knee arthritis is unlikely to be caused by an injury incurred during a period of active service or ACDUTRA or due to an injury sustained during a period of active duty training. The [appellant's] right knee injury is not related to his military service." The examiner made this determination fully aware of the appellant's pre-service surgery, in-service medical records, and his post-service medical history. In addition, as previously discussed, the examiner indicated that he had reviewed the entire claims file. The examiner reiterated his August 2013 opinion in the December 2013 addendum opinion. With respect to the aggravation claim, the examiner stated in the December 2013 addendum that the "claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness." In coming to this conclusion, the examiner stated that the appellant was seen for and operated on a condition prior to service. With respect to Pellegrini's disease, the examiner stated that it is a "medial collateral ligament calcification. Once it occurs it does not diminish or grow. There is no natural progression of this condition." As a result, it could not be permanently worsened by service. Regarding the appellant's current arthritis, the examiner stated: Arthritis is a disease which progresses until the bone rubs on another bone instead of cartilage on cartilage. This process takes a number of years. This [appellant] was diagnosed with arthritis in 1957. He had total knee replacement for osteoarthritis in 2004. That is a period of 47 years. It is difficult to say that the natural progression was interrupted by service when the condition lasted for 47 years. One would expect a much shorter period if the service time increased his disease. It is less likely than not that the [appellant's] preexisting right knee disorder was aggravated beyond its natural progression. The appellant has provided no evidence beyond his bare assertions that his knee disorder was caused by or aggravated by service. The Board notes that the appellant did receive treatment for his right knee during service, but service treatment records indicate that it was a contusion. X-rays taken at the time of the contusion in October 1957 indicate that the knee was already arthritic. The examination also revealed minimal medial collateral ligament weakness that existed before service, and the examiner explained that any progression in disability in the knee was due to the natural progress of this disorder. Nothing in the record, other than the appellant's statements, suggests that the contusion caused, or aggravated, the appellant's current right knee disability. While the appellant can report his symptoms, he is not competent with respect to a complex medical question such as the etiology of arthritis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As the examiner referenced, arthritis is a condition that takes a number of years to manifest. The Board notes that the file does contain reference to x-rays taken prior to and upon enlistment on February 4, 1956 and July 10, 1957 that were "negative." However, the record suggests that these were chest and dental x-rays. There is no indication that an x-ray of the right knee was taken at the time of enlistment. No documents suggest that an x-ray of the right knee was taken until the appellant's October 1957 injury. Having reviewed the complete record, the Board finds that the preponderance of the evidence is against a finding that the appellant's current arthritis was incurred in or aggravated by his active service. In reaching that conclusion, the Board finds the August 2013 VA examination and December 2013 addendum to be of significant probative value. The Board has considered the appellant's assertions, but as they are mere allegations without any substantive evidence of injury or aggravation, their probative value is minimal. In the absence of the presumptions, the appellant has failed to provide evidence sufficient to show that his current disorder is the result of injury or aggravation. ORDER Entitlement to service connection for a right knee disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs