Citation Nr: 1805279	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  15-03 802A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for a bilateral knee disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Shauna M. Watkins, Counsel


INTRODUCTION

The Veteran served on active duty from September 1954 to March 1958.  The Veteran then served in the Reserves from 1970 to 1993 with periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA).
The claim comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  The RO in Indianapolis, Indiana, currently has jurisdiction over the claim.

In March 2017, the Veteran was afforded his requested hearing before a Decision Review Officer (DRO) at the local RO.  A copy of the hearing transcript has been associated with the claims file.  

In February 2015, VA received the Veteran's Substantive Appeal concerning the denial of his claim of entitlement to service connection for an acquired psychiatric disorder.  However, a subsequent October 2017 rating decision granted that claim.  The Veteran did not appeal either the initial disability rating or effective date assigned.  Therefore, that claim has been resolved and is no longer before the Board.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see, too, 38 C.F.R. § 20.200 (2017).

This appeal was processed using the paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) claims processing systems.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

The Veteran's bilateral knee disorder, identified as internal derangement, meniscal tear, and osteoarthritis of the bilateral knees, has been attributed to falls and injuries he incurred during periods of ACDUTRA and INACDUTRA.

CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for establishing service connection for a bilateral knee disorder, identified as internal derangement, meniscal tear, and osteoarthritis of the bilateral knees, have been met.  38 U.S.C. 
§§ 101(2), (22)-(24), 1101, 1110, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304, 3.307, 3.309 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the favorable determination, no further discussion of compliance with VA's duty to notify and assist is necessary.

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a).

The phrase "in the active military, naval, or air service" is defined by 38 U.S.C. § 101(24).  This phrase embraces active duty, any period of ACDUTRA which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred in or aggravated in the time of duty.  Id.  The implementing regulation defines INACDUTRA as "duty (other than full-time duty) performed by a member of the National Guard of any State . . . ."  38 C.F.R. § 3.6(d)(4).  Thus, an individual engaged in INACDUTRA who is disabled from an injury incurred or aggravated in the line of duty may be eligible to receive compensation.  

Service connection may also be granted for any disease diagnosed after the military discharge, when all the evidence, including that pertinent to the period of military service, establishes that the disease was incurred during the active military service.  38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d).  
The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C. § 7104(a) (2012); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). 

When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); see 38 C.F.R. § 3.102.  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365. 

The evidence of record establishes that the Veteran has a current bilateral knee disorder.  At the December 2015 VA examination, the Veteran was diagnosed with internal derangement of the bilateral knees.  In an April 2017 VA Disability Benefits Questionnaire (DBQ) filled out by Dr. L.L., the Veteran's treating private physician, diagnosed the Veteran with meniscal tear and osteoarthritis of the bilateral knees.

The Veteran served on active duty from September 1954 to March 1958.  The Veteran then served in the Reserves from 1970 to 1993.  The Veteran's personnel records document that his Military Occupational Specialty (MOS) was Crew Chief and that he serviced planes during his Reserves period.  His Retirement Points Statements from the Reserves also document several active duty and inactive duty points from 1982 to 1989.  The Veteran's service treatment records (STRs) from his Reserves period (particularly from 1982 to 1989) document several falls and injuries while performing his job duties.

A VA examination and medical opinion were obtained in February 2015; however, the VA examiner provided a negative nexus opinion based solely on the fact that the Veteran did not have a current bilateral knee disorder.  Another VA examination and medical opinion were obtained in December 2015.  The VA examiner provided a negative nexus opinion, but only addressed the Veteran's active duty period.
At his March 2017 DRO hearing, the Veteran testified that he had several falls and injuries during his Reserves period (particularly in the 1980s), which he believed caused his current bilateral knee disorder.  See Hearing Transcript, pages 3-4.

In an April 2017 DBQ, Dr. L.L. examined the Veteran and diagnosed the Veteran with a bilateral knee disorder.  He opined that the Veteran's knees were damaged by the nature of his service as Crew Chief while servicing planes - specifically, falling off ladders and falling off planes in wet or icy conditions.  Dr. L.L. stated that the Veteran estimated that he fell off over 100 times during his time of service.

In this case, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current bilateral knee disorder is related to his ACDUTRA and INACDUTRA periods of service in the Reserves from 1982 to 1989.  See 38 U.S.C. § 5107(b).  As stated above, his Reserves treatment records document several falls and injuries during presumed periods of ACDUTRA and INACDUTRA.  The claims file contains a positive medical nexus opinion linking the Veteran's current bilateral knee disorder to these falls and injuries during his Reserves.  There are no contrary medical opinions of record addressing the Veteran's periods of ACDUTRA and INACDUTRA service.  The Veteran's claim of entitlement to service connection for a bilateral knee disorder is granted.


ORDER

The claim of entitlement to service connection for a bilateral knee disorder, identified as internal derangement, meniscal tear, and osteoarthritis of the bilateral knees, is granted.



____________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs