Citation Nr: 21002731 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 14-00 605 DATE: January 14, 2021 ORDER Entitlement to service connection for a left wrist disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. A preexisting left wrist disorder was present prior to the Appellant’s entry into the April 30, 1971, active duty for training (ACDUTRA) period and was not aggravated by the April 30, 1971, to September 3, 1971, ACDUTRA period. 2. A preexisting left knee disorder was present prior to the Appellant’s entry into the April 30, 1971, ACDUTRA period and was not aggravated by the April 30, 1971, to September 3, 1971, ACDUTRA period. CONCLUSIONS OF LAW 1. The criteria for service connection for a left wrist disorder have not been met. 38 U.S.C. §§ 101, 1110, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303(a) (2019). 2. The criteria for service connection for a left knee disorder have not been met. 38 U.S.C. §§ 101, 1110, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served on active duty for training (ACDUTRA) from April 30, 1971, to September 3, 1971, with the Army National Guard of Ohio and had additional periods of National Guard service from July 1972 to March 1977. This matter came before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Appellant testified before the undersigned Veteran’s Law Judge at a November 2017 Travel Board hearing. The transcript of the hearing is of record. The claim was remanded in March 2018 for additional evidentiary development. Service Connection 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 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303 (2019). The Appellant did not serve on active duty. Instead, the entirety of his pertinent service as to the current issues consisted of ACDUTRA service with the Army National Guard in Ohio. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated while performing ACDUTRA. 38 U.S.C. §§ 101 (24), 106 (2012). Every veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2019). Regulations concerning the presumption of soundness and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010). The presumption of soundness will apply to a period of ACDUTRA only if “veteran” status has been established through a prior period of active duty and an entrance examination was performed prior to the period of ACDUTRA. Id. Veteran status is defined in the regulations as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.” See 38 U.S.C. § 101 (2) (2012); 38 C.F.R. § 3.1(d) (2019). In effect, an individual who has served only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and to be entitled to compensation. As the Appellant is not currently service-connected for any disabilities and as he did not serve on a period of active duty, he has not achieved veteran status. Accordingly, the presumption of soundness and the presumption of aggravation to not apply to his current claim. With respect to a claim for aggravation of a preexisting disorder during a period of ACDUTRA, in order for a claimant to establish “veteran” status, the claimant must demonstrate both elements of aggravation: (1) that the preexisting disability permanent worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan v. Shinseki, 24 Vet. App. 167 (2010). In such instances, the claimant is not entitled to the easier presumption of aggravation standard. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306(a) (2019). The standard of proof for the claimant is the “benefit of the doubt” standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Donnellan, 24 Vet. App. at 175. A Left Wrist Disorder Enlistment examination in February 1970 reflects that the Appellant had mild left wrist instability. The disability was noted again upon consultation in February 1971, but he had full left wrist motion and no effusion. Function was good. Thus, he entered his April 30, 1971, ACDUTRA period with a preexisting left wrist disability. In May 1971, an ace wrap was used on the left wrist. At time of separation examination in August 1971, no chronic left wrist disorder was complained of or noted. A private report from December 2009 reflects that the Appellant was seen for complaints to include left wrist pain. He had full range of motion (ROM), and there was no swelling. An assessment was made of osteoarthritis/old trauma to the left wrist, but X-ray showed no acute abnormality with no joint space narrowing or juxta-articular erosions of the wrist. A dorsal spur was seen on the lateral view at the triquetral bone. A VA joints examination was conducted in April 2010. The Board notes that the examiner did not offer an opinion regarding the Appellant’s left wrist disability. A private physician reported in an August 2010 statement that the Appellant had been his patient for the past ten years. While on active military duty in 1971 he sustained a fall, which resulted in injuries to include the left wrist. The physician said that the Appellant continued to have arthritic pain and limitation of joints. He further opined that it was as likely as not that the Appellant’s osteoarthritis began when he was on active military duty. The Appellant testified at his November 2017 Travel Board hearing that he injured his left wrist when he fell during a training exercise at Fort Knox. It was noted that the left wrist made an audible popping sound with movement. Also added to the record in November 2017 was a November 2017 DBQ from a private physician regarding the left wrist, noting that there was osteoarthritis and instability. The Appellant’s history of injury to the wrist during service was noted. When examined by VA in September 2018, the claim file was reviewed, and an in-person evaluation was conducted. The diagnosis was chronic sprain and dynamic carpal ligament laxity of the left wrist. A second diagnosis was of a triquetrum bone spur in the left wrist. As history, it was noted that the Appellant reported tripping/falling while at boot camp when training in the dark. He stuck out his arm to break his fall and hit his wrist on the ground. He heard a pop, and the left wrist swelled and hurt. He was treated at that time and ever since, he reported a loss of strength and that he ultimately lost his civilian jog (working at a printing press) because he could no longer perform his duties. Current symptoms included pain with lifting. There was laxity in the joint that caused uncertainty with performing certain tasks. At night, after a day of activity, he had a steady, dull ache in the wrist. He reported having to use a lot of work arounds to make sure that he did not drop things. The examiner also noted that a December 2009 X-ray showed a dorsal spur at the triquetrum bone. ROM testing showed limitation of left wrist motion but without pain. There was localized tenderness and pain with weight bearing. The VA examiner who conducted the 2018 left wrist examination provided reports dated in July 2019 and September 2019 where he specifically discussed the etiology of the Appellant’s left wrist disorder. In his current medical opinion, after a review of medical records, he found that the Appellant had a diagnosis of left wrist instability prior to entry into the military as seen upon enlistment examination. There was one note identifying the Appellant as seeking something for his left wrist. The note only mentioned that he got an ACE bandage for his left wrist; there was no description of mechanism of injury, X-ray, need for follow-up. His separation examination was negative for reported symptoms or observed limitations of the left wrist. The VA examiner further noted that the first mention of need for care of left wrist after separation was in 2009, which was 38 years after his last official medical treatment for left wrist. It was his opinion the Appellant’s left wrist condition existed prior to military service, and there was no evidence that it was aggravated beyond the natural course of its progression due to military service. There was no evidence that the one medical encounter in 1971 evidenced an injury but more likely represented his seeking a support for his left wrist due to increased activity. The examiner added that while this might be interpreted as an increased need for treatment, it did not represent a permanent increase and was not supported by any evidence of continuity of care. The Appellant’s current condition was more likely due to the pre-service instability, and it was more pronounced today due to age and wear and tear not specific to his military career. The examiner further stated that the Appellant’s dorsal bone spur on the triquetrum bone was more likely due to wear and tear of the joint associated with aging. There was no evidence to support that he suffered any injury to the left wrist in service that would by itself or predominantly be the cause of the bone spur. Analysis Here, the probative competent evidence of record shows that the Appellant entered ACDUTRA with a preexisting left wrist disability. The evidence does not show that this preexisting left wrist disorder underwent a permanent increase in the underlying severity during his April 30, 1971, to September 3, 1971, ACDUTRA period. The 2019 VA medical opinion reports (July and September) are the most probative evidence in this case. The VA examiner’s reasoned opinion is of greater value than the private examiner’s 2010 opinion that left wrist arthritis resulted from the in-service injury. The VA examiner reviewed and considered the evidence of record, including the Appellant’s statements, and provided a medical opinion with a supporting rationale relying on medical training, knowledge, and expertise. The private examiner did not account for the negative separation examination or the many years that passed between the fall during ACDUTRA and additional left wrist complaints in 2009. Evidence of a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a preexisting condition was aggravated by military service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In addition, the VA examiner concluded that the preexisting disorder was not aggravated beyond its natural progression. The private medical opinion does not address whether any preexisting disorder was aggravated by his military service. Moreover, temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). While the Appellant believes that his left wrist disorder resulted from an in-service injury, the evidence is convincing that he entered ACDUTRA with a preexisting left wrist disorder that was not aggravated therein. He is not competent to provide opinions in this case. Such opinions require specific training in the field of orthopedics and the record does not show that the Appellant has such training or skills. The issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the VA examiner’s medical opinions than the Appellant’s own lay statements. Further, as to any argument that the left wrist exhibits arthritis service connection on a presumptive basis is not warranted for periods of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. at 47. The chronic disease presumptive provisions of 38 U.S.C. §§ 1112 and 1137 (2012) and 38 C.F.R. § 3.309 (2019) do not apply to the Appellant’s claim. Accordingly, the Board finds that the Appellant had a preexisting left wrist disorder that was not aggravated during his ACDUTRA in 1971. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. A Left Knee Disorder Enlistment examination in February 1970 reflects that the Appellant had a left knee disability (chronic derangement). Specifically, it was reported that he had injured his left knee in a motorcycle accident, and that surgery was performed when he was 17 years old. The disability was noted again upon consultation in February 1971, but he had good mobility and no instability or effusion. Thus, he entered his April 30, 1971, ACDUTRA period with a preexisting left knee disability. In May 1971, his old surgery was noted. An ACE wrap was applied. He was seen for possible sprained/twisted left knee. He was noted to be status post medial meniscectomy. An ACE wrap was applied, and he was to be on light duty. At time of separation examination in August 1971, he gave a history of a tricked or locked knee and his previous surgery was noted. A VA joints examination was conducted in April 2010. The Appellant gave a history of ongoing knee problems ever since he injured his knee during training. He reported surgery to the knee in 1977. X-ray showed minimal degenerative changes. The examiner attributed the minimal degenerative joint disease (DJD) to the meniscectomy. The examiner opined that the current left knee condition was not caused by or the result of military service. For rationale, he found that the Appellant entered service with a preexisting left knee disorder. While he was treated during service for a twisted knee, this resolved. The current medical condition to the left knee had no nexus for service connection. Instead, the current degenerative left knee changes were from an accumulation of activities of a normal lifestyle. A private physician reported in an August 2010 statement that the Appellant had been his patient for the past ten years. While on active military duty in 1971 he sustained a fall, which resulted in injuries to include the left wrist and ankle. He did not mention the left knee, but he did note that the Appellant continued to have arthritic pain and limitation of joints and that he had osteoarthritis which began on active military duty. The Appellant testified at his November 2017 Travel Board hearing that he injured his left knee when he fell during a training exercise at Fort Knox. While he had had left knee surgery prior to service, the knee felt normal when he entered ACDUTRA. He had had knee problems ever since the fall during training. Also added to the record in November 2017 was a November 2017 DBQ from a private physician regarding the left knee that states that the Appellant had left knee surgery to repair his meniscus in 1978. The Board remanded the claim in March 2018 noting that the Appellant submitted the 2017 DBQ, and that this evidence has not previously been considered in rendering a nexus opinion and it was consistent with his reports of knee treatment after service. Thus, additional opinion was warranted. Upon VA report in June 2019, it was noted that the claims file was reviewed. The examiner reported that the Appellant underwent left knee arthroscopic surgery when he was 17 years old for a medial meniscectomy. His mild chronic knee derangement was noted at entrance. The examiner noted that knee meniscectomies were among the most frequent reasons for knee problems. He referred to medical literature which noted that the prognosis after such a procedure was guarded. The condition was often associated with secondary osteoarthritis. The examiner opined that the literature supported the finding that the left knee had already begun to show degenerative changes due to the previous surgery in 1971. During service, he sustained a twisting knee injury which resolved without sequelae. There was no evidence to support that the twisting left knee injury materially impacted the performance of Appellant’s duty. For rationale, he pointed to the lack of complaints or documentation of excessive workdays missed or healthcare visit for the condition. The VA examiner further noted that the August 1971 separation examination was silent for left knee symptomatology. For these reasons, the VA examiner opined that it was less likely than not (less than 50 percent probability) that the Appellant’s left knee disorder, which clearly and unmistakably existed prior to service, was clearly and unmistakable not aggravated beyond its natural progression by an in-service injury, event, or illness. Analysis Initially, it is noted that the only mention of a second left knee surgery was upon the DBQ questionnaire in 2017. Records subsequently added to the claims file include recent VA records but do not include any private or VA records showing that additional knee surgery treatment reports from 1978. In this case, the probative evidence of record shows that the Appellant entered ACDUTRA with a preexisting left knee disability. The evidence does not show that this preexisting left knee disability underwent a permanent increase in the underlying severity during his April 30, 1971, to September 3, 1971, ACDUTRA period. The June 2019 VA medical opinion report is the most probative evidence in this case. The VA examiner’s reasoned opinion is of greater value than the private examiner’s 2010 opinion in support of the claim. The VA examiner reviewed and considered the evidence of record, including the Appellant’s statements, and provided a medical opinion with a supporting rationale relying on medical training, knowledge, and expertise. The private examiner did not specifically address the left knee in the 2010 report but did opine that osteoarthritis was of service origin. He also did not account for the many years that passed between the fall during ACDUTRA and additional left knee complaints in 2009. Evidence of a prolonged period without medical complaint can be considered, along with other factors, as evidence of whether a preexisting condition was aggravated by military service. See Maxson, supra. In addition, the VA examiner concluded that the preexisting disorder was not aggravated beyond its natural progression. The private medical opinion does not address whether any preexisting disorder was aggravated by his military service. Moreover, temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, not just the symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). While it is the Appellant’s primary argument that either he has a left knee disorder which resulted from an in-service injury, or, if preexisting, the disability was aggravated therein, the evidence is convincing that he entered ACDUTRA with a preexisting left knee disability disorder that was not aggravated therein. He is not competent to provide opinions in this case. Such opinions require specific training in the field of orthopedics and the record does not show that the Appellant has such training or skills. The issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau, supra. Consequently, the Board gives more probative weight to the VA examiner’s medical opinions than the Appellant’s own lay statements. Further, as to any argument that the left knee exhibits arthritis service connection on a presumptive basis is not warranted for periods of ACDUTRA. See Smith v. Shinseki, 24 Vet. App. at 47. The chronic disease presumptive provisions of 38 U.S.C. §§ 1112 and 1137 (2012) and 38 C.F.R. § 3.309 (2019) do not apply to the Appellant’s claim. And as indicated in the above evidence, it was the examiner’s opinion that the Appellant’s left knee degenerative changes are the result of his preexisting left knee disorder (mild derangement from preservice injury and meniscectomy). Accordingly, the Board finds that the Appellant had a preexisting left knee disorder that was not aggravated during his ACDUTRA in 1971. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert, supra. The claim is denied. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.