Citation Nr: 1752076 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10- 00 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left knee disability. 2. Entitlement to service connection for a left foot disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The appellant had a period of active duty for training (ACDUTRA) from February 18, 1985, to August 1, 1985, with prior and subsequent service in the U.S. Army National Guard from February 1984 to August 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was remanded by the Board for further development, which has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. The appellant's current left knee disability was not incurred or aggravated during military service. 2. The appellant's current left foot disability was not incurred or aggravated during military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2017). 2. The criteria for service connection for a left foot disability have not been met. 38 U.S.C. §§ 1101, 1110, 1131, 1153 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. With respect to the appellant's claims herein, VA has met all statutory and regulatory notice provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The record reflects that all available identified treatment records have been obtained with respect to the appellant's service connection claims, to include service treatment records and post-service private treatment records. The appellant's service personnel records have also been obtained. The VA examiners examined the appellant, reviewed his claims file, and provided opinions on the pertinent questions asked. Therefore, the VA examinations are adequate for evaluation purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). The appellant has not identified any other outstanding, existing evidence that could be obtained to substantiate the claims. The Board is also unaware of any such evidence. The appellant contends that he has left knee and foot disabilities as a result of an injury that occurred while playing softball in May 1985. Service treatment records do not document any complaint, treatment, or diagnosis associated with this incident, and a November 1988 periodic medical examination recorded no subjective reports or clinical findings of any disabilities of the left lower extremity. The record also contains buddy statements dated in 2014 that the appellant used crutches. One buddy statement indicated that he witnessed the appellant playing softball and fell but denied treatment and he witnessed the appellant using crutches a few days later. The appellant is competent to describe the circumstances and symptoms of the claimed injury. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The witnesses are competent to describe that they saw the appellant using crutches. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) For VA compensation purposes, service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6. Active duty is full time duty in the Armed Forces other than ACDUTRA. Id. With regard to National Guard service, ACDUTRA is full time duty performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. Inactive duty training is duty other than full-time duty performed under the same provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Acciola v. Peake, 22 Vet. App. 320, 324 (2008). "Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability ... in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. 3.102 (2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A June 2009 private treatment record notes complaints of left foot and left knee pain, but July 2009 imaging studies were negative. A February 2014 VA examiner, however, diagnosed mild degenerative joint disease of the left knee and left foot strain. Therefore, the appellant has currently diagnosed disabilities of the left knee and left foot. The remaining question is whether the appellant's currently diagnosed disabilities of the left knee and left foot are a result of his military service, to include the reported injury in May 1985. Three VA opinions have been obtained that address this question. The February 2014 VA examiner opined that it is less likely as not that the appellant's current left knee and left foot disabilities were caused by or related to active service. The opinion was based on the fact that service treatment records revealed no left knee or left foot injury or disability in 1985 and that the first report of symptoms was in 2009. The examiner indicated that the lapse of 24 years between initial injury and first symptoms led to the conclusion that the left knee and left foot disabilities were not service-connected. The examiner also noted the minimal findings for the left knee on the examination and stated that had the left knee disability started in service, the findings at the examination should have been very definite and more pronounced. A September 2016 VA examiner reviewed the buddy statements associated with the claims file and observed that, although a buddy statement documents the use of crutches by the appellant, the service treatment records do not show a disability of the left knee or left ankle. The examiner noted that the findings at clinical examinations in service were normal for the left lower extremity. Further, the examiner indicated that the even if the appellant had an acute sprain injury in service, the subsequent examinations were normal and therefore, it was less likely as not that the appellant incurred a chronic disability in service. The examiner also opined that the appellant's arthritis was not aggravated by active service. However, the examiner did not provide a rationale for this conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). A July 2017 addendum opinion was obtained after the appellant's dates of ACDUTRA and INACDUTRA were verified and provided to the examiner. Upon review of the claims file, including all dates of service, which concluded in 1991, the examiner stated that there was no definitive evidence that indicated that the appellant's left knee and left foot disabilities had their onset in or were otherwise related to active duty or any verified period of service. Therefore, the examiner found that the current left knee and left foot disabilities less likely than not had their onset in or were related to active duty. The appellant has not provided any competent contradictory opinions. Therefore, the Board determines that a preponderance of the competent and probative evidence is against the appellant's claim of entitlement to service connection for left knee and left foot disabilities. For the purposes of this decision, the Board finds that the appellant's in-service injury to the left lower extremity occurred as the appellant described. However, the evidence does not establish that the appellant has current disabilities of the left knee and left foot that are a result of that injury. As noted, the appellant's first complaints of symptoms were made in June 2009, over 24 years after the reported injury. Although not dispositive of the issue, the Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the appellant was not diagnosed with the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, no disability was diagnosed at that time as pain alone is generally not a disability under VA law and regulations. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Three VA examiners concluded that the appellant's left knee and left foot disabilities are not a result of service. In particular, the Board considers the February 2014 VA examiner's assessment that the current manifestations of the left knee disability would be worse if it were due to a May 1985 injury and the September 2016 VA examiner's observation that service treatment records established no chronic disability at any time in service. Finally, the Board notes the July 2017 addendum opinion which determined that no disability of the appellant's left knee or left foot was aggravated during service. As the appellant only had ACDUTRA and INACDUTRA service, the presumption of soundness does not apply. Even so, the only clinical examination from service dated after the first period of ACDUTRA ending in August 1985 is the November 1988 examination that reflects no disability of the left lower extremity. Moreover, the appellant did not have a diagnosed disability of either the left knee or left foot in June/July 2009. Consequently, there was no disability present prior to any period of ACDUTRA or INACDUTRA that could have been aggravated by any period of military service as the appellant's service ended in 1991. In light of the above analysis, the Board finds that the appellant's left knee and left foot disabilities are not at least as likely as not a result of incurrence or aggravation during his military service. The claims for service connection for these disabilities are, therefore, denied. ORDER Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a left foot disability is denied. ______________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs