Citation Nr: 20021981 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 17-16 698A DATE: March 30, 2020 ORDER Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. Entitlement to service connection for a digestive tract disorder is denied. FINDINGS OF FACT 1. A right knee disability diagnosed as osteoarthritis was not manifest in service and is not otherwise attributable to service; arthritis did not manifest within one year of separation from active service. 2. A left knee disability diagnosed as osteoarthritis and meniscal tear was not manifest in service and is not otherwise attributable to service; arthritis did not manifest within one year of separation from active service. 3. A digestive tract disorder also diagnosed as postgastrectomy syndrome and status post vagotomy with pyloroplasty was not manifest in service and is not otherwise attributable to service; an ulcer did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. A right knee disability was not incurred or aggravated during service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 2. A left knee disability was not incurred or aggravated during service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 3. A digestive tract disorder was not incurred or aggravated during service, nor may it be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1960 to April 1962. He also had service in the Commonwealth of Puerto Rico Army National Guard from May 1962 to April 1966, May 1975 to November 1981, and June 1983 to May 1992. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision rendered by the Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2019, the Veteran testified at a Travel Board hearing held at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. During the October 2019 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects which included evidence of a nexus between the Veteran’s disabilities and service; clarified the type of evidence that would support the Veteran’s claims; enquired as to the existence of potential outstanding records; and held the record open for 90 days for the submission of additional evidence. Thus, the actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing set forth in 38 C.F.R. § § 3.103. Service Connection Pertinent legal criteria Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran 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). In the context of Reserve or National Guard service, active military service is defined to include any period of active duty for training in which the individual 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 during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). Active duty for training (ACDUTRA) includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). Inactive duty training (INACDUTRA) includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 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); Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003) (explaining that “members of the National Guard only serve the federal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor.”). The Veteran’s service personnel records reveal that his National Guard service was INACDUTRA. For certain chronic disorders, including ulcers and arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2019). However, presumptive periods do not ACDUTRA or INACDUTRA (unless such service is classified as active service and had 90 or more days). See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain disease) for the Veteran’s periods of ACDUTRA and INACDUTRA is not appropriate. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Board notes that the Veteran has not claimed that his disabilities on appeal are the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Right and left knee disabilities The Veteran contends that he has right and left knee disabilities related to service. See, e.g., the December 2019 Board hearing transcript, pgs. 3-4. The Board notes that the Veteran’s service treatment records document treatment for pain in the right leg in October 1960. Moreover, a treatment record dated July 1985 during National Guard service documents treatment for right knee pain. The remainder of the Veteran’s service treatment records are absent complaints of or treatment for a knee disability. Further, a March 2015 VA examination report documents findings of left knee meniscal tear from July 2002 as well as right and left knee osteoarthritis with dates of diagnosis from March 2002 and July 2002, respectively. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current right and left knee disabilities are related to his service on a direct or presumptive basis or are related to any period of National Guard service. Specifically, the Veteran was afforded a VA examination in March 2015. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran’s right and left knee disabilities were incurred in or caused by service. The VA examiner’s rationale for his conclusion was based on his finding that the service treatment records both during active service and National Guard service did not indicate a chronic right or left knee problem. He specifically noted the Veteran’s February 1962 separation examination from active service as well as National Guard examinations dated April 1986 and February 1990 which revealed normal findings as to the knees. The March 2015 VA medical opinion was based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with a chronic right or left knee disability for more than 25 years after active service and more than five years after separation from National Guard service. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that his current right and left knee disabilities are not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claims. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). To the extent the Veteran himself asserts his current right and left knee disabilities are related to his active service or National Guard service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, right and left knee disabilities were not noted during Federal service. In as much as the February 1962 separation examination was normal, he did not have characteristic manifestations sufficient to identify the chronic disease entity, arthritis, during service or within one year of separation from active service. 38 C.F.R. § 3.303(b). Further, his February 1990 examination during National Guard service likewise revealed normal findings as to the knees. The Board notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal service examinations as well as his specific denial of knee pathology during the reports of medical history in conjunction with the examinations. Further, the in-service examinations are more credible and more probative than his after-the-fact lay assertions. We conclude that the Veteran’s denial of pertinent symptoms is far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the Veteran’s statements with regard to a nexus between his right and left knee disabilities and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled neutral professional. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for right and left knee disabilities. The benefits sought on appeal are accordingly denied. Digestive tract disorder The Veteran contends that he has a digestive tract disorder related to service. See, e.g., the December 2019 Board hearing transcript, page 5. The Board notes that the Veteran’s service treatment records during active service are absent complaints of or treatment for a digestive tract disorder. The Board notes that a National Guard service treatment record notes a laparotomy that was performed in 1980. There are no other treatment records during the National Guard service that document a digestive tract disorder. Moreover, a March 2015 VA examination report documents findings of gastric ulcer with onset from 1991, postgastrectomy syndrome from 2011, and status post vagotomy with pyloroplasty from 2011. The Board has carefully evaluated the evidence and finds that a preponderance of the evidence of record is against a finding that the Veteran’s current digestive tract disorder is related to his Federal service on a direct or presumptive basis or is related to any period of National Guard service. Specifically, the Veteran was afforded a VA examination in March 2015. After examination of the Veteran and consideration of his medical history, the VA examiner concluded that it is less likely than not that the Veteran’s digestive tract disorder is incurred in or caused by service. The VA examiner’s rationale for her conclusion was based on her finding that the record did not document a finding of a digestive tract disorder for nearly 30 years following the Veteran’s separation from active service. The March 2015 VA medical opinion was based on upon thorough review of the record and analysis of the Veteran’s entire history. See Bloom, supra. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of symptomatology consistent with a digestive tract disorder for more 25 years after active service. Additionally, as discussed above, service connection for diseases, in particular the Veteran’s digestive tract disorder, is not warranted for periods of INACDUTRA. The Veteran was not disabled by an injury that was incurred or aggravated in the line of duty that resulted in his digestive tract disorder. As such, service connection for a digestive tract disorder as related to a period of the Veteran’s National Guard duty is not warranted. The Board notes that the Veteran submitted a private report from J.C., dated December 2019 in which he opines the Veteran’s digestive tract disorder is related to service. However, no rationale was provided for that opinion. Therefore, the Board finds that the opinion is of no probative value. To the extent the Veteran himself asserts his current digestive tract disorder is related to active service, the Veteran is competent to report that he has a current diagnosis (as that is documented in the record). He is also competent to report that he has had symptoms since service. However, a digestive tract disorder was not noted during service. In as much as the February 1962 separation examination was normal, he did not have characteristic manifestations sufficient to identify the chronic disease entity, ulcer, during service or within one year of separation. 38 C.F.R. § 3.303(b). The Board notes that the Veteran is competent to report his symptoms both current and past. However, this lay evidence is inconsistent with the normal service examinations as well as his specific denial of digestive tract disorder pathology during the reports of medical history in conjunction with the examinations. Further, the in-service examinations are more credible and more probative than his after-the-fact lay assertions. We conclude that the Veteran’s denial of pertinent symptoms is far more probative and credible than the lay evidence submitted in support of a claim for benefits. The Board must find that the Veteran’s statements with regard to a nexus between his digestive tract disorder and service to be of minimal probative value and outweighed by the VA opinion, prepared by a skilled neutral professional.   For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for a digestive tract disorder. The benefit sought on appeal is accordingly denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.