Citation Nr: 1752812 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 13-28 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a right knee disorder. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a heart disorder, including left ventricular hypertrophy (LVH) and/or a repolarization abnormality. 4. Entitlement to service connection for diabetes mellitus, Type II. 5. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Jeany Mark, Attorney ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty for training from September 1983 to December 1983, with subsequent service in the National Guard and the Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In May 2015, the Board remanded the above claims for further development. At the time of the remand, a claim for service connection for bilateral hearing loss was also on appeal and remanded for development. Subsequently, in a July 2016 rating decision, the RO granted this claim. It is no longer in appellate status and will not be addressed below. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The record contains a statement of the case (SOC) issued in September 2017 on a claim for a higher rating for bilateral hearing loss. The Veteran has not yet perfected an appeal of this claim. Thus, the issue is not currently on appeal and will not be addressed by the Board. The electronic filing system contains documents located in Virtual VA that were associated with the record since the RO's last readjudication of the claims. In the absence of a specific, written request for initial agency of original jurisdiction (AOJ) review of any additional evidence, there is an automatic waiver of AOJ review. See 38 U.S.C. § 7105(e)(1), (2) (West 2012) (applicable in cases where the substantive appeal is filed on or after Feb. 2, 2013). The issues of service connection for sleep apnea, a heart disorder, and diabetes mellitus are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The right knee disorder is related to service. 2. Tinnitus is related to service. CONCLUSIONS OF LAW 1. The criteria for the establishment of entitlement to service connection for a right knee disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for the establishment of entitlement to service for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is granted for disability resulting from a disease or an injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled from an injury, but not also disease, incurred in or aggravated in the line of duty, or when a cardiac arrest or cerebrovascular accident occurs during such training. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. "[M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. §12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id. Right Knee Disorder The Veteran has a current diagnosis of right knee osteoarthritis, documented on VA examination in July 2016. His military service consists entirely of service in the National Guard and the Reserves. A July 2016 report from the Veterans Affairs and Department of Defense Identity Repository (VADIR) shows that the Veteran had Reserve service from February 28, 2001 to June 1, 2004. The Veteran reports that within this timeframe, in August 2001, he was involved in a motor vehicle accident during annual training and injured his knee. He submitted medical records from a private emergency room confirming the injury. A DD Form 689, "Individual Sick Slip," dated August 17, 2001 shows that he was placed on desk duty for one week and restricted from physical training following the injury to his knee the previous day. The form indicates he was serving at Ft. Hunter Liggett, California, in the 1st Battalion, 104th Division. Thereafter, a July 2002 DD Form 3349, "Physical Profile," placed him on physical profile for right knee internal derangement, with restrictions on running distances. In September 2014, a private physician, Dr. A., reviewed the Veteran's in-service and post-service medical records. She discussed the August 2001 and July 2002 service records documenting a right knee injury and opined it was more likely than not that the Veteran's current right knee disorder was related to the August 2001 motor vehicle accident. She based this finding on the type of injury sustained and the continued documentation of knee problems following the injury. On VA examination in July 2016, the examiner diagnosed right knee osteoarthritis and discussed the August 2001 injury. He opined that the current disorder was at least as likely as not related to the in-service accident. In support, he discussed the August 2001 medical record, the August 17, 2001 DD Form 689, and a subsequent March 2003 record regarding ongoing knee problems. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for his right knee disorder. The record shows that he was serving on Reserve duty from 2001 to 2004, and there are two service records within this timeframe, from August 2001 and July 2002, documenting a right knee injury. Despite the Board's remand efforts in May 2015, the record remains unclear as to whether the Veteran was serving on INACDUTRA or ACDUTRA at these times. However, further remand is unnecessary because the in-service event was an injury, not a disease, so even if the service constituted INACDUTRA, service connection may be awarded. Also, as the VADIR report shows that the service was in the Reserve, and not National Guard, development as to whether such service was state-controlled or federal service is also unnecessary. There is no evidence contrary to the September 2014 report of Dr. A. and July 2016 VA examiner's report. The Court has cautioned VA against seeking a medical opinion where favorable evidence in the record is unrefuted. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). The reports are adequate for the purposes of adjudication. The examiners based their conclusions on a review of the electronic claims file, including military records, and the Veteran's admissible and believable reports of in-service right knee symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). They provided a rationale for the conclusions reached based on an assessment of the Veteran's current and in-service symptoms. The evidence is, at minimum, in equipoise in showing that the Veteran has a right knee disorder attributable to service. In resolving any reasonable doubt in the Veteran's favor, service connection is warranted. Tinnitus The Veteran has a current tinnitus, documented on VA examination in July 2016. In July 2016, the RO awarded service connection for bilateral hearing loss based, in part, on the Veteran's DD Form 214 for his period of ACDUTRA from September 1983 to December 1983, which showed that he trained with M16 rifles and hand grenades and was exposed to excessive noise during that time. In the September 2014 report of Dr. A., she noted the Veteran's in-service noise exposure and discussed the causes of tinnitus. She opined that his hearing loss was likely related to service, and noted that hearing loss is a common cause of tinnitus, as is excessive noise exposure. On VA examination in July 2016, the examiner provided a negative nexus opinion based on his finding that the Veteran was not aware of his tinnitus until after military service. In considering the evidence under the laws and regulations as set forth above, and resolving all reasonable doubt in his favor, the Board concludes that the Veteran is entitled to service connection for his tinnitus. The in-service incurrence of hazardous noise has been established during a period of ACDUTRA, which allows service connection for both diseases and injuries. The Veteran is competent to report experiencing tinnitus during service, and his lay assertions are found to be believable for the purpose of linking the onset of his tinnitus to exposure to excessive noise levels during active service. Additionally, while the September 2014 opinion of Dr. A. could have been more clearly stated, she indicated a link between the Veteran's tinnitus and both his in-service noise exposure and his service-connected bilateral hearing loss. See Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (where the opinion is lacking in detail the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination.) By contrast, the probative value of the VA examiner's opinion is diminished by the internal inconsistency of the report; he provided a positive nexus opinion as to hearing loss based solely on in-service noise exposure with no contemporaneous evidence of hearing loss in service, but did not do so with tinnitus. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent his conclusion was based on a finding that the Veteran did not have tinnitus until after military service, this is inconsistent with all of the other statements made by the Veteran throughout the appeal. The evidence is in relative equipoise in showing that the current tinnitus as likely as not had its clinical onset in service due to the Veteran's exposure to harmful noise associated with his military service. Thus, in resolving all reasonable doubt in the Veteran's favor, service connection is warranted. ORDER Service connection for a right knee disorder is granted. Service connection for tinnitus is granted. REMAND In the prior May 2015 remand, the Board emphasized the significance of ascertaining the dates and character of the Veteran's ACDUTRA and INACDUTRA service. See Remand p. 7, ("Identifying such periods of service is crucial to properly adjudicating all the appealed issues.") The RO did not complete this action. Stegall v. West, 11 Vet. App. 268 (1998). VA examinations document current sleep apnea, a heart disorder, and diabetes mellitus, and private medical records indicate the disorders have been present for a number of years. As for sleep apnea, a statement from the Veteran's wife indicates symptoms from 1999 onward, and the July 2016 VA examiner noted the Veteran had symptoms of excessive snoring in the 2000's. As for the heart disorder, documentation of LVH and a repolarization abnormality are documented in records of October 2000 and March 2001. Diabetes was documented in March 2003. A July 2016 VADIR Report, generated on remand, provides a range of dates for the Veteran's National Guard and Reserve service, including National Guard service from October 1998 to February 2001, and Reserve service from February 2001 to June 2004. Thus, it appears the sleep apnea, heart disorder, and diabetes mellitus were present within the National Guard and Reserve service generally, but the RO did not ascertain the specific periods of ACDUTRA and INACDUTRA. As these are diseases not injuries, and there is no indication they arose from any injury, at a minimum, the Veteran's periods of ACDUTRA must be identified. With specific regard to the heart disorder, it does not appear the Veteran has had a cardiac arrest or cerebrovascular accident so as to require ascertainment of INACDUTRA periods. Additionally, the RO should determine whether the Veteran's National Guard service was state-controlled or federal service. A July 2016 VA examiner provided a negative nexus opinion for each of the disorders, based essentially on the lack of documentation during ACDUTRA and INACDUTRA. However, as the dates of ACDUTRA and INACDUTRA had not been defined, further opinions must be obtained Accordingly, these claims are REMANDED for the following action: 1. Contact the National Personnel Record Center and/or the appropriate service entity and request that (1) it identify the exact dates for all periods of active duty, active duty for training, and inactive duty for training performed by the Veteran, and (2) forward any and all service treatment records associated with such duty that are not already incorporated in the record. At a minimum, it should be ascertained whether the Veteran was serving on ACDUTRA: (a) in 1999 or the 2000's, when symptoms of sleep apnea were identified; (b) in October 2000 or March 2001 when LVH and a repolarization abnormality was documented; or (c) in March 2003 when diabetes was documented. Additionally, verify whether the Veteran's National Guard service was "full-time duty" ordered under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, or whether he was ordered into Federal service by the President of the United States, see 10 U.S.C. §12401. In other words, the AOJ should determine whether such service was state-controlled or federal service. 2. If, and only if, the above development indicates the presence of sleep apnea, a heart disorder, or diabetes mellitus during a period of ACDUTRA, obtain an addendum medical opinion to address the etiology of the disorders. The examiner is asked to opine as to whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) whether the current sleep apnea, heart disorders, or diabetes mellitus began during ACDUTRA or are related to any incident of that service. The examiner should give a reasoned explanation for all opinions provided. With specific regard to sleep apnea, the July 2016 VA examiner appears to have attributed the condition to obesity. However, the examiner should note that because obesity occurs over an extended period of time, the onset of obesity cannot qualify as an in-service "event" for the purposes of establishing service connection. VAOPGCPREC 1-2017. 3. Thereafter, readjudicate the claims, considering all evidence. If the benefits sought remain denied, the Veteran and his representative should be provided a SSOC. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs