Citation Nr: 21063882 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 19-06 281 DATE: October 18, 2021 ORDER Service connection for a bilateral knee disorder is granted. Service connection for a skin disorder, claimed as loss of pigmentation on the legs, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the evidence is at least in equipoise that the Veteran's bilateral knee disorder was incurred in or is otherwise etiologically related to his active duty service. 2. The Veteran's skin disorder was not caused by or related to his active duty service. CONCLUSIONS OF LAW 1. The criteria for service connection for a bilateral knee disorder have been met. 38 U.S.C. § §§ 1110, 5107(b); 38 C.F.R. § §§ 3.102, 3.303(a), 3.304, 3.307, 3.309. 2. The criteria for service connection for a skin disorder, claimed as loss of pigmentation on the legs, have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1970 to July 1970, February 2002 to January 2003, and February 2003 to February 2004, with unverified periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard. In January 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110. Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for a bilateral knee disorder The Veteran contends that service connection is warranted for a bilateral knee disorder because his current bilateral knee disorder is related to a knee injury that he sustained and knee problems that began during his active duty service in 1970, and worsened during his additional periods of active duty service. Based upon the evidence of record and resolving all reasonable doubt in favor of the Veteran, the Board determines that service connection is warranted for his bilateral knee disorder. In this case, the evidence is at least in equipoise that the Veteran's bilateral knee disorder is related to his active duty service. Initially, a March 1970 service treatment record reflects that he experienced pain in both knees during his active duty service, making it difficult for him to walk and preventing him from performing knee bends. Next, the evidence of record includes two opinions by private physicians who opined that the Veteran's current bilateral knee disorder is etiologically related to his active duty service. Specifically, in August 2013 a private physician opined that it was more likely than not that the Veteran's current knee disorder was caused by actions such as running, squatting, twisting knees, and extended road marches carrying heavy amounts of weight during his active duty service. In support of that opinion, the physician explained that his opinion was based on his review of the pertinent medical records, which indicated that the Veteran had been on a physical profile due to recurrent knee problems and his treatment of the Veteran for approximately 16 years. The evidence also includes a March 2020 opinion by second private physician, where that physician opined that the Veteran's bilateral knee disorder was at least as likely as not proximately due to or the result of his active duty service because his initial injury occurred during basic training and he experienced periodic knee pain after suffering that initial injury. Given the physicians expertise, history of treating the Veteran, and supporting rationales, the Board finds that these opinions are entitled to significant probative weight and show that the evidence is at least in equipoise that his current bilateral knee disorder is etiologically related to his active duty service. The Board acknowledges the negative evidence, including normal knee examinations in May 1975 and September 1995, and May 1975 and September 1995 reports of medical history where he denied trick or locked knee. Although these examinations and reports of medical history fail to show continuous symptoms of a bilateral knee disorder, the Board finds that the probative value of the private physicians' opinions outweighs these examinations and reports of medical history because a lack of continuous symptoms does not preclude service connection and the physicians provided well-supported rationales for their opinions. By virtue of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board concludes that the evidence is at least in equipoise that his bilateral knee disorder that is etiologically related to his active duty service and that service connection for his bilateral knee disorder is warranted. 2. Entitlement to service connection for a skin disorder, claimed as loss of pigmentation on the legs The Veteran contends that service connection is warranted for a skin disorder because it was caused by his service in response to Hurricane Katrina, when he walked through contaminated water, causing him to develop red sores and lose pigmentation of the skin. As a preliminary matter, the Board notes that the Veteran has expressly asserted that his present skin disorder was caused by service in New Orleans, following Hurricane Katrina, when he walked through contaminated water. He further asserted that the duties he performed in response to Hurricane Katrina were performed pursuant to "federal orders." Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). ACDUTRA includes full-time duty performed for training purposes by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(3). National Guard duty is distinguishable from other Reserve service because a member of the National Guard may be called to duty by the governor of his or her state. National Guard members "only serve the federal military when they are formally called into the military service of the United States," and, at all other times, National Guard members serve solely as members of the State militia under the command of a state governor." Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Therefore, to have basic eligibility for veterans' benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Id.; see also 10 U.S.C. § 12401. In this case, no evidence reflects that the Veteran ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. The evidence does not include a DD-214 or orders by the President, calling the Veteran into Federal service. Thus, to the extent that the Veteran seeks service connection based upon his period of active service in the Army National Guard, when he performed duties in response to Hurricane Katrina, and links his current skin disorder to that service, that event does not constitute an in-service injury or event and cannot serve as a link between his present skin disorder and service for purposes of establishing service connection because he was not ordered into Federal service by the President of the United States and did not perform "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Next, based upon the evidence of record, the Board concludes that service connection for the Veteran's skin disorder is not warranted. Initially, the Veteran's service treatment records fail to establish that his current skin disorder was incurred in or is otherwise etiologically related to active duty service. Specifically, his service treatment records do not reflect that he reported symptoms of, received treatment for, or was diagnosed with a skin disorder. In fact, his May 1970 separation examination reflects that his skin was normal, and he did not report any issues related to his skin in his May 1970 report of medical history. Medical records from after his subsequent periods of service similarly do not show that he reported symptoms of, received treatment for, or was diagnosed with a skin disorder given that no skin issues were noted in February 2003 and September 2005 post-deployment health assessments. Accordingly, his service treatment records fail to establish that his skin disorder was incurred in or is otherwise etiologically related to his active duty service. The post-service clinical evidence also fails to establish a relationship between the Veteran's skin disorder and his active duty service. Here, the evidence, including a March 2020 private treatment record shows that the Veteran's skin disorder arose in 2005, following his performance of duties in response to Hurricane Katrina as a member of the Army National Guard. Given that the symptoms arose as a result of his performance of duties in response to Hurricane Katrina, and, as set forth above, that event does not constitute an in-service event and cannot serve as a link between his present skin disorder and service for purposes of establishing service connection because he was not ordered into Federal service by the President of the United States and did not perform "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, the post-service medical evidence fails to establish that his current skin disorder was incurred in or is otherwise etiologically related to his active duty service. Additionally, service connection may be granted when the evidence establishes a medical nexus between active duty service and the current diagnosis. However, the Board finds that the weight of the competent evidence does not attribute the Veteran's skin disorder to active duty service, despite his contentions to the contrary. Indeed, there is no objective medical evidence linking these disorders to his active duty service. The Boards acknowledges that an August 2018 opinion reflects that a private dermatologist opined that the Veteran's skin disorder more likely than not began due to his exposure to contaminated water during his deployment to New Orleans in September 2005, following Hurricane Katrina because multiple chemicals have been implicated as inducers of vitiligo. The dermatologist also cited medical literature in support of that opinion. Although this opinion is probative of the etiology of the Veteran's skin disorder, it fails to establish that service connection is warranted because it does not overcome the fact that the Veteran's service in response to Hurricane Katrina was not active duty service. As set forth above, the Veteran's service in response to Hurricane Katrina was not active duty service because he was not ordered into Federal service by the President of the United States and did not perform "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. In arriving at its conclusion, the Board has also considered the statements made by the Veteran relating his skin disorder to his active duty service. The Federal Circuit has held that "[l]ay 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." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding the etiology of his skin disorder. See Jandreau, 492 F.3d at 1377, n.4. Although the Veteran can provide competent testimony regarding symptoms, the skin disorder on appeal is not a disorder that can be diagnosed by its unique and identifiable features as it does not involve a simple identification that a layperson is competent to make. In any event, the diagnoses of dysfunctions and disorders, and their respective etiologies, are medical determinations and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, to the extent that the Veteran believes that his skin disorder is related to active duty service, he is a lay person without appropriate medical training and expertise to provide a medical diagnosis and etiological opinion. By virtue of the foregoing, service connection for the Veteran's skin disorder is not warranted. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Crosnicker, Associate Counsel