Citation Nr: 18157668 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 18-01 303 DATE: December 13, 2018 ORDER Entitlement to service connection for a left hip disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a right knee disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the appellant has a left hip disability due to a disease or injury in service, to include any specific in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the appellant has a right hip disability due to a disease or injury in service, to include any specific in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the appellant has a right knee disability due to a disease or injury in service, to include any specific in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the appellant has a left knee disability due to a disease or injury in service, to include any specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a left hip disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for service connection for a right hip disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. § 3.303. 3. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. § 3.303. 4. The criteria for service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served a period of active duty for training (ACDUTRA) in the United States Marine Corps from June 1972 to October 1972 and has additional unverified service in the United States Marine Corps Reserve. The appellant testified at a Board videoconference hearing at the RO in July 2018 before the undersigned Veterans Law Judge. At the July 2018 hearing, the appellant also testified regarding additional claims, which are the subject of a separate Board decision in November 2018. The Board also observes that the appellant has another service connection claim for posttraumatic stress disorder (PTSD), which was remanded by the Board in May 2018. This issue will be addressed in a separate decision and is not addressed in the decision below. Service Connection At the outset, the Board notes that in this case, the appellant has not achieved “veteran status” for his period of ACDUTRA service. Special rules apply to National Guard and Reserve service. The initial determination in any claim for veterans’ benefits is whether the claimant is considered a “veteran” as defined under VA law. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Service in the National Guard, even during period of ACDUTRA (or INACDUTRA), without more, will not suffice to give one “veteran” status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). A veteran is “a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable.” 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). Active duty for training (ACDUTRA) is, among other things, full-time duty in the Armed Forces performed by Reserve for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Thus, in order to establish “veteran status” with respect to service in the Reserve or National Guard, and therefore eligibility for service connection, the record must establish that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA. See Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Currently, service connection is not in effect for any disabilities. Thus, he has not achieved “veteran” status. Finally, regarding ACDUTRA, the presumptions available to a claimant are limited. A claimant whose claim is based on a period of ACDUTRA can never be entitled to the presumptions of service connection for chronic diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved “veteran” status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or inactive duty training (INACDUTRA)) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the claimant has not achieved “veteran” status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. For the purposes of this case, the record does not show that prior to the appellant’s period of ACDUTRA from June 1972 to October 1972, that he had any period of service in which “veteran” status was obtained. He did not serve on active duty, and has not established a service-connected disability. As to the substance of the claim, generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Entitlement to service connection for a left hip disability 2. Entitlement to service connection for a right hip disability 3. Entitlement to service connection for a left knee disability 4. Entitlement to service connection for a right knee disability The Veteran contends that he has disabilities of the hips and knees that are either related to his military service from lifting heavy items, or a falling injury in service; or secondary to a back injury in service. See, e.g., July 2018 Board hearing transcript, p. 12; VA treatment records dated January 2013 and February 2013. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The preponderance of the evidence is against finding that any disabilities of the hips and knees began during active service, or are otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The service treatment records during the Veteran’s active duty for training are negative for any findings pertaining to the hips or knees. After his period of active duty training, a November 1974 treatment record notes an abnormal painful right knee, old injury. It was noted that the Veteran felt better and wanted to go to work. He was found ineligible for surgery. After service, the Veteran had complaints of pain radiating from his back to his left lower extremity in 1999. The Veteran also complained of right knee pain in October 2002, which he stated was swollen. An October 2002 examination showed full range of motion of the knees with no erythema or warmth. He complained of lumbar spine pain extending to his hips on a mental health treatment record in March 2003, as well. More recently, a January 2009 VA treatment record notes that the Veteran grimaced with hip and knee bends and rotations, but then got up from table and put on a jacket without any apparent discomfort. A February 2009 VA physical therapy record notes the Veteran’s complaint that his legs give out and that he would stumble and fall without provoking activity. He also complained of an episode of bilateral knee buckling when taking a step backward. Examination noted that the Veteran had no limitation of motion or strength. Additional physical therapy records for other disabilities, such as his back, note frequent knee bends without mention of any knee disabilities. See, e.g., December 2009 VA physical therapy record. Even though the Veteran has post-service complaints of hip and knee pain, there is no medical evidence linking his complaints to his military service. As to his complaints that his knee and hip pain is related to his back, his back disability is not service-connected, so the question of secondary service connection is moot. See 38 C.F.R. § 3.310. While the Veteran is competent to report that he injured his knees and hips in service, his reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. He noted a lifting injury as the cause of his knee pain, but then later stated that his pain came from falling in service. The service treatment records do not reflect any injury to the hips or knees; and do not show any current disability in the hips and knees related to his military service. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). While the Veteran believes he has hip and knee disabilities related to in-service injuries, the Board reiterates that the preponderance of the evidence weighs against findings that any bilateral hip or knee disability in service occurred. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. As noted in the introduction, in a separate decision, the Board has remanded the issue of service connection for PTSD. This matter is still pending. The Veteran has a 100 percent rating for nonservice-connected schizophrenia. Because a decision on the issue of service connection for PTSD could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matter is REMANDED for the following action: 1. After the development for the remanded issue of service connection for PTSD has been completed, readjudicate the issue of entitlement to a TDIU on appeal. Then, return the issue to the Board if in order. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond