Citation Nr: 21001405 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 10-10 870 DATE: January 8, 2021 ORDER The appeal for service connection for a left shoulder/arm disability is dismissed. The appeal for a higher initial rating for service-connected posttraumatic stress disorder (PTSD) with depression is dismissed. The appeal for a higher initial rating for service-connected spondylosis of the cervical spine is dismissed. Entitlement to service connection for a left knee disability to include degenerative joint disease is denied. FINDINGS OF FACT 1. On October 7, 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the appellant that a withdrawal of the appeal for entitlement to service connection for a left shoulder/arm disability is requested. 2. On October 7, 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the appellant that a withdrawal of the appeal for entitlement to a higher initial rating for service-connected PTSD with depression is requested. 3. On October 7, 2020, prior to the promulgation of a decision in the appeal, the Board received written notification from the appellant that a withdrawal of the appeal for entitlement to a higher initial rating for service-connected spondylosis of the cervical spine is requested. 4. The Veteran’s left knee disability, to include arthritis/degenerative joint disease, was not shown as chronic during his first period of active service and did not manifest to a compensable degree within the applicable presumptive period; the disability is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. 5. A left knee disability, to include arthritis/degenerative joint disease, existed prior to the Veteran’s second period of active duty from June 2004 to August 2005, and was not aggravated by such service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal for service connection for a left shoulder/arm disability by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal of the appeal for a higher initial rating for service-connected PTSD with depression by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for withdrawal of the appeal for a higher initial rating for service-connected spondylosis of the cervical spine by the appellant (or his authorized representative) have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 101, 1110, 1112, 1113, 1131, 1153, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.306, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from February 1971 to February 1974, and from June 2004 to August 2005, with additional periods of service in the Army National Guard (ARNG). He served in the Southwest Asia theater of operations during the Persian Gulf War. This case comes to the Board of Veterans’ Appeals (Board) on appeal from Agency of Original Jurisdiction (AOJ) decisions dated in March and April 2008. The Veteran testified before a Veterans Law Judge (VLJ) of the Board at a December 2016 hearing; a transcript of the hearing is of record. This case was previously remanded to the AOJ in May 2017, for additional development. In rating decisions dated in March 2018, November 2019 and April 2020, in pertinent part, the AOJ granted service connection for tinnitus, bilateral hearing loss, degenerative joint disease of the right knee, a right shoulder/arm disability, and median nerve neuropathy of the left upper extremity. These issues are no longer in appellate status. The case was subsequently returned to the Board. The record reflects that the Veteran received a letter indicating that he could request a virtual tele-hearing instead of waiting for a Travel Board hearing. Upon further review, he does not have a pending hearing request, and provided testimony in a hearing with a VLJ on December 2016. The undersigned has considered the transcript of that hearing as evidence in making the Board’s decision. By a letter dated in October 2020, the Board informed the Veteran that the VLJ who held a hearing in his case was no longer employed by the Board, and he was offered the opportunity to testify at another hearing before the VLJ who will decide his case. See 38 U.S.C. § 7107 (c). He was advised that if he did not respond within 30 days of this letter, the Board would proceed with adjudication. He did not respond. Withdrawn Issues 1. Entitlement to service connection for a left shoulder/arm disability 2. Entitlement to a higher initial rating for PTSD with depression 3. Entitlement to a higher initial rating for spondylosis of the cervical spine The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant has withdrawn his appeal with regard to the issues of entitlement to service connection for a left shoulder/arm disability, and higher ratings for PTSD and spondylosis of the cervical spine and, hence, there remain no allegations of errors of fact or law for appellate consideration as to these issues. See the Veteran's October 2020 letter. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under the law, active military service includes (1) active duty, but also (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24) (B); 38 C.F.R. § 3.6 (a). For National Guard service, ACDUTRA is defined as full-time duty performed by members of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22)(C); 38 C.F.R. § 3.6 (c)(3). INACDUTRA is defined as duty (other than full-time duty) performed by a member of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d)(4). Thus, in order for National Guard service to be qualifying service for VA compensation purposes, the period of service must have been “federalized,” that is to say, his or her unit was ordered into Federal service under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 C.F.R. § 3.6 (c), (d). As a threshold matter, “veteran” status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is “axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status”). The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Certain chronic diseases will be presumed related to service if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 4. Entitlement to service connection for a left knee disability including degenerative joint disease The Veteran had active service from February 1971 to February 1974, and from June 2004 to August 2005, with additional periods of service in the ARNG. At his December 2016 Board hearing, the Veteran asserted that his bilateral knee disabilities began as a result of general wear and tear over several periods of active and inactive service. Specifically, he asserted that he worked in transportation, which required excessive amounts of lifting with the knees, communication, which required climbing poles to install wiring, and as a military policeman, which required excessive amount of walking and time on his feet. He also asserted that during his second period of active service from 2004-2005, in the Persian Gulf, he fell repeatedly and injured his knees while performing duties in the motor pool. See December 2016 Board hearing transcript. The Veteran previously contended that he injured his left knee in the line of duty during training in February 1999 at Base Camp Honduras. See his March 2008 statement, or that his left knee disability was aggravated by military service, referencing a May 2010 Physical Evaluation Board (PEB) report by the ARNG. See his June 2012 statement. In the May 2017 Board decision and remand, the Board found that the Veteran’s reports of knee injuries from repeated falls in the motor pool are generally consistent with the circumstances of his service, and that bilateral knee injuries during the Veteran’s second period of active service, from 2004 to 2005, are conceded. 38 U.S.C. § 1154 (b). During the pendency of the appeal the Veteran has been diagnosed with degenerative joint disease and osteoarthritis of the left knee as evidenced by the October 2007 and September 2019 VA examinations. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, arthritis of the left knee was not shown as chronic during a period of active service or within a presumptive period, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. At the September 2019 VA examination, the examiner noted the Veteran had a history of multiple left knee surgeries, including a left anterior cruciate ligament (ACL) repair in 1984, a left knee arthroscopy in 2002, and a subsequent left knee arthroplasty. VA medical records reflect that the left total knee arthroplasty was performed in May 2016. The Board concludes that for the reasons discussed below, while the Veteran has had current diagnoses of arthritis and degenerative joint disease of the left knee and an ACL tear (see August 2006 VA outpatient treatment record) during the pendency of the appeal, the preponderance of the evidence weighs against finding that these diagnoses began during service or are otherwise related to an in-service injury, event, or disease. Service treatment records for the Veteran’s first period of active duty from 1971 to 1974 are negative for any complaints, treatment or diagnosis of a left knee disability or injury. His lower extremities were clinically normal on separation medical examination in November 1973, and on periodic examinations for the Alabama ARNG in November 1977, May 1981 and May 1984. The medical evidence of record shows that the Veteran had left knee ACL repair in 1984, after his first period of active duty and prior to his period of ARNG service in February 1999. See October 2005 VA outpatient treatment record, August 2006 VA orthopedic clinic note. The Veteran’s service personnel records indicate that all periods during which he served in the ARNG between his two periods of active duty were for the state of Alabama. As the appellant has not established “veteran” status with regard to any periods other than his active duty from February 1971 to February 1974 and June 2004 to August 2005, no presumptions, including the presumptions of soundness and aggravation, are applicable to such periods. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010). During a period of Alabama ARNG service in February 1999, the Veteran had a left knee strain after he reportedly stepped in a hole and twisted his knee while at Base Camp Sula, Honduras. A February 1999 statement of medical examination and duty status reflects that this injury occurred in the line of duty and he was sent to sick call. The Board finds that the appellant has not achieved Veteran status as to the February 1999 ARNG period of service, and the preponderance of the evidence does not show that a left knee disability was incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA while ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or while performing “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101 (21), (22)(C); 38 C.F.R. § 3.1 (a). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran’s left knee disability preexisted his military service from June 2004 to August 2005. The evidence shows that the Veteran underwent a left ACL repair in 1984, and a left knee arthroscopy in 2002, and private medical records from University Orthopedic Clinic reflect that he was diagnosed with osteoarthritis of the left knee in March 2003. The appellant established “veteran” status based on his period of active duty service from June 2004 to August 2005. The Veteran’s May 2004 annual medical examination is absent of any notations of defects, infirmities, or disorders of the left knee, and he was found fully fit. On pre-deployment health assessment in June 2004, he was found to be deployable. Additionally, the evidence is at least in equipoise as to whether a left knee disability manifested during service. Service treatment records for the Veteran’s second period of active service show that the Veteran was treated for a contusion of the left knee in November 2004 after falling and landing on his left knee. Therefore, with respect to a left knee disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence “‘cannot be misinterpreted and misunderstood, i.e., it is undebatable.’” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). With regard to the first prong, the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran’s left knee disability preexisted his second period of active service. Prior this period of service, the Veteran underwent a left ACL repair in 1984, and a left knee arthroscopy in 2002, and was diagnosed with osteoarthritis of the left knee in March 2003. See private medical records from University Orthopedic Clinic (UOC). At that time, he reported two prior left knee surgeries, including meniscectomy, and complained of significant left knee pain that had been bothering him for some time. An X-ray study showed tricompartmental osteoarthritis. An April 2003 private medical record reflects that X-ray studies showed severe degenerative joint disease. Although the July 2017 VA examiner opined that the left knee disability did not clearly and unmistakably exist prior to the second period of service, the Board finds that this opinion is of no probative value, as the opinion is based on an inaccurate factual premise and did not consider the medical evidence of left knee surgery prior to service or the private X-ray studies showing severe left knee arthritis in 2003. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that “an opinion based upon an inaccurate factual premise has no probative value”). The September 2019 VA examiner opined that the Veteran’s left knee disability clearly and unmistakably preexisted service. The September 2019 VA examiner’s opinion is highly probative because it is based on an accurate medical history and review of the records and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). As noted, the Veteran was treated for a left knee contusion after falling on his left knee in November 2004, and he has credibly reported other falls during this period of service. In November 2004, he reported that he had prior surgery on his left knee in 1980. On examination, there was scarring from prior surgery, decreased range of motion, and mild swelling at the suprapatellar area. The diagnostic assessment was left knee contusion. He was released back to duty with a normal profile. His July 2005 discharge examination noted that he had scars from a remote left knee ACL repair, and reported occasional knee pain. The Board finds that the evidence does not show symptomatic manifestations of the left knee disability during or proximately following action with the enemy. See 38 C.F.R. § 3.306(b)(2). An October 2005 VA outpatient treatment record reflects that the Veteran reported no traumatic physical injuries in Iraq. He got a bruise on his left knee in a fall at the motor pool, which cleared up promptly without sequelae in two weeks. He reported aching off and on in his knees for several years. A December 2005 VA outpatient treatment record reflects that the Veteran reported a history of left knee ACL repair in 1984 and left knee arthroscopy in 2002 for scar tissue. He said he fell and hit his knee in Iraq, but the pain cleared up over two weeks. He began having pain two weeks ago without any trauma or injury, or unaccustomed activity other than raking leaves. On examination, the left knee was stable. The diagnostic impression was probable post-traumatic arthritic changes exacerbated by physical activity with raking leaves. A March 2006 magnetic resonance imaging (MRI) scan of the left knee showed severe tricompartmental degenerative changes with complex medial and lateral meniscal tears and complete ACL tear. An August 2006 VA orthopedic note reflects that the Veteran complained of left knee pain. He worked as a referee for an athletic association but felt his knee was hindering his ability to referee basketball games, and he had an increase in pain when pivoting and running up and down the court. The physician noted that an X-ray study showed severe degenerative joint disease of the left knee. On examination, the knee was stable, and range of motion was from 0 to 120 degrees. The Veteran was afforded a VA joints examination in October 2007; the diagnosis was degenerative joint disease of both knees. The examiner did not give an opinion on the etiology of the bilateral knee disability. On physical examination in November 2007 for the Social Security Administration, the Veteran complained of bilateral knee pain. He reported that he had surgery on his left knee for a ligament injury in 1985, and a second surgery on the left knee in 2000 for scar tissue removal. The diagnosis was chronic knee pain due to moderate osteoarthritis, worse on the left. In a March 2008 VA medical opinion, the examiner noted that prior arthroscopic left knee surgery was noted in February 1995, at which time he had regular duty, and that he injured his left knee again in November 2004 during his second period of active service. The examiner opined that it was less likely than not that the Veteran’s pre-existing left knee condition was aggravated by his period of service from June 2004 to August 2005. The rationale was that although the Veteran injured his left knee; he was treated and released back to regular duty with a normal profile and no evidence of residual complications was found. The Board previously found that the March 2008 examiner’s opinion was incomplete and therefore inadequate and remanded this case for another VA medical opinion. The September 2019 VA examiner opined that the Veteran’s preexisting left knee disability clearly and unmistakably was not aggravated beyond its natural progression by events in service. The rationale was that the Veteran had a 30-year gap between his military separation in 1974 and subsequent entry into active duty in 2004. The Veteran reported a knee injury during the 1990s, and during this non-active duty period also had two left knee surgeries, including a 1984 left ACL repair and a 2002 arthroscopy. Moreover, a VA orthopedic clinic note dated in August 2006 documents that the Veteran worked as a referee for a state high school athletic association, noting problems with pivoting. This fast-paced physical activity or similar activities likely predisposed the Veteran to the injury that resulted in the 1984 surgery. Continued problems with his left knee resulted in additional surgery prior to his next active duty period. The UOC medical records dated in March 2003 document evaluation of chronic left pain, noted that “he has had significant pain associated with this,” and gave a diagnosis of osteoarthritis. This 2003 visit is approximately one year from his 2002 surgery and is prior to his 2004 active duty period. The UOC records dated in January 2013 document that the Veteran began to have worsening left knee pain that began on March 26, 2003, prior to the second period of active military service. Given the evidence as outlined above, the VA examiner opined that the Veteran had no significant left knee injury during active duty that resulted in a permanent aggravation of his significant pre-existing left knee condition, and this condition has followed the natural progression. (Continued on the next page)   The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s left knee disability preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based on direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.