Citation Nr: 21070736 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 16-18 645 DATE: November 24, 2021 ORDER Entitlement to service connection for left knee strain is granted. Entitlement to service connection for right foot degenerative arthritis is granted. Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The Veteran's left knee strain is related to her active duty service. 2. The Veteran's degenerative arthritis of the right foot is related to her active duty service. 3. The Veteran's hypertension is related to her active duty service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left knee strain have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for right foot degenerative arthritis have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for hypertension have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army National Guard and in the United States Army. The periods of active duty of record include the periods from November 20, 1977 to November 29, 1977, from February 5, 1978 to May 25, 1978 and from March 18, 1994 to September 22, 1994 and in the United States. Army from October 3, 1994 to March 3, 1995, from March 13, 1995 to August 11, 1995 and from April 6, 2007 to June 24, 2008. The Veteran served in the Army Reserves from February 1977 through her retirement in October 2010. During the Veteran's service, she received numerous decorations and medals, including the Meritorious Service Medal, the Army Commendation Medal, the Army Achievement Medal, and the Iraq Campaign Medal. This appeal comes to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran, with representation, testified at a March 2019 videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In July 2019, the Board remanded the issues for further development. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106. ACDUTRA includes full-time duty performed by members of the National Guard of any state. 38 C.F.R. § 101 (22); 38 C.F.R. § 3.6 (c)(1). INACDUTRA includes part-time duty by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). A disorder diagnosed after discharge may be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis and hypertension, may be service-connected on a presumptive basis if manifested to a compensable degree within a specified period of time following separation. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b), service connection will be presumed where there are either chronic symptoms shown in service or continuity of symptomatology since service for diseases identified as 'chronic' in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013) (holding that continuity of symptomatology is an evidentiary tool to aid in the evaluation of whether a chronic disease existed in service or an applicable presumptive period). With a chronic disease shown as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent cause. 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for a left knee disability. The Veteran is seeking service connection for a left knee disability as related to a 1980 accident and January 1991 motor vehicle accident. See March 2019 Hearing Transcript and July 2020 VA Form 21-4138 Statement in Support of Claim. There is sufficient evidence that the claimed in-service injury occurred during a period of active duty for training (ACDUTRA). For example, an August 1980 Statement of Medical Examination and Duty Status revealed that during the Veteran's active duty for training, she fell into a hole and injured her left knee. It was noted that the injury was incurred in the line of duty. An April 1991 Statement of Medical Examination and Duty Status noted that the Veteran had a motor vehicle accident on January 22, 1991, during which she injured her arm, shoulder, and knee. The form classified the Veteran's status as having been on active duty for the period from January 10, 1991 through January 26, 1991. The form ambiguously identified that the injury was not incurred in the line of duty and indicated that whether the injury was incurred in the line of duty was "to be determined." Subsequently, an August 1991 addendum by V. B., Maj. Adjutant General noted "Reviewed for completeness. In Line of Duty." This appears to be an official line of duty determination and appears to supersede the prior ambiguous notations. To the extent there is a balance of evidence on this point, doubt is resolved in favor of the Veteran, and the motor vehicle accident is considered to have occurred in the line of duty. See 38 C.F.R. § 3.102. In February 2021, the Veteran was afforded a VA examination for her left knee disability. The Veteran was diagnosed with left knee strain. The VA examiner opined that the Veteran's current left knee disability was at least as likely as not incurred in or caused by the Veteran's military service. The VA examiner noted that the Veteran's service dates were April 6, 2007 to June 24, 2008, March 13, 1995 to August 11, 1995, October 3, 1994 to March 3, 1995, March 18, 1994 to September 22, 1994, February 5, 1978 to May 25, 1978, and November 20, 1977 to November 29, 1977. An August 18, 1980 Line of Duty document showed that the Veteran injured her left knee during service. The Veteran's current left knee condition was a continuation and progression of this in-service injury. It was at least as likely as not that the Veteran's current left knee condition was incurred in or caused by the Veteran's in-service injury, event, or illness. In June 2021, a VA addendum medical opinion was obtained regarding the Veteran's left knee. The same VA examiner who provided the opinion in February 2021 rendered this opinion also. The examiner stated that he reviewed the available records again and exam/medical opinion he provided in February 2021. The August 18, 1980 Line of Duty document showed that the Veteran injured her left knee during service. In this LOD, the diagnosis was contusion of the left knee and the document stated that the injury was considered to have been incurred during service. The opinion that the VA examiner provided showed that it was at least as likely as not that the Veteran's left knee strain the examiner diagnosed during the examination was incurred in service based on this line of duty determination. However, a January 22, 1991 line of duty determination showed that the Veteran was involved in a motor vehicle crash. This line of duty determination stated that the injury was not considered to have been incurred during service. It also did not state which knee was possibly injured. This makes it less likely than not that the Veteran's current left knee condition was caused and/or aggravated by this January 1991 motor vehicle crash. Based on the foregoing, the Board finds that the Veteran's left knee strain is related to his active duty military service. First, the June 2021 medical opinion that opined that the Veteran's left knee disability was not related to his military service is inadequate and not probative in value because it erroneously relies on the fact that the January 1991 line of duty determination showed that the Veteran's injuries from the motor vehicle crash were not incurred in the line of duty. However, in fact, an addendum to the January 1991 line of duty determination ultimately concluded that the Veteran's injuries occurred in the line of duty. Further, this medical opinion did not consider the August 1980 line of duty determination that concluded that the Veteran's injury to her left knee occurred during the line of duty. On the other hand, the positive February 2021 medical opinion is adequate and probative in value because it considered the fact that the Veteran's left knee injury occurred during the line of duty and related this to her military service with a sufficient explanation. The February 2021 medical opinion weighs in favor of the Veteran's claim. Therefore, the Board concludes that the claim for entitlement to service connection is granted. 2. Entitlement to service connection for a right foot disability. The Veteran is seeking service connection for a right foot disability. The Veteran claimed that she was in a motor vehicle accident in January 1991 and injured her left knee, left shoulder, and right side of foot, which she later had surgery on. The Veteran found out her foot was broken in 2003 or 2004 while she was at Fort Benning and had surgery on it. See March 2019 Hearing Transcript. An April 1991 Statement of Medical Examination and Duty Status noted that the Veteran had a motor vehicle accident on January 22, 1991, during which she injured her arm, shoulder, and knee. The form classified the Veteran's status as having been on active duty for the period from January 10, 1991 through January 26, 1991. The form ambiguously identified that the injury was not incurred in the line of duty and indicated that whether the injury was incurred in the line of duty was "to be determined." Subsequently, an August 1991 addendum by V. B., Maj. Adjutant General noted "Reviewed for completeness. In Line of Duty." This appears to be an official line of duty determination and appears to supersede the prior ambiguous notations. To the extent there is a balance of evidence on this point, doubt is resolved in favor of the Veteran, and the motor vehicle accident is considered to have occurred in the line of duty. See 38 C.F.R. § 3.102. Service treatment records showed that in September 2009, the Veteran had an x-ray performed on her right foot. The x-ray revealed that the Veteran had moderate to severe osteoarthritis of the tarsometatarsal joint and intertarsal bones, moderate enthesophyte, and mild plantar spur formation. In February 2021, the Veteran was afforded a VA examination for her right foot disability. The Veteran was diagnosed with plantar spur and degenerative arthritis. The VA examiner opined that the Veteran's right foot disability was less likely than not related to her military service. The VA examiner noted that the Veteran's service dates were April 6, 2007 to June 24, 2008, March 13, 1995 to August 11, 1995, October 3, 1994 to March 3, 1995, March 18, 1994 to September 22, 1994, February 5, 1978 to May 25, 1978, and November 20, 1977 to November 29, 1977. A January 1977 entrance examination did not show any diagnosis of hypertension, left knee pain, or right foot pain. A September 10, 2009 x-ray of the right foot showed that the Veteran had arthritis in the right foot. An August 1980 Line of Duty document showed that the Veteran injured her left knee during service. There was no objective medical evidence found in this that the injury was severe in nature as to have an effect on the uninjured right foot. In the absence of significant alteration to the individual's gait pattern (resulted in a major post-surgical limp occurring over a prolonged period of time) it was medically unlikely there would be any detrimental effect on the opposite uninjured foot. There was no objective medical evidence that the Veteran's diagnosed right foot condition/injury during the dates of service or during the motor vehicle accident in 1991. Finally, there was no line of duty determination that a right foot condition was incurred in service. The Board finds that service connection should be granted based on the continuity of symptomatology. The February 2021 VA medical opinion is inadequate because it does not consider the Veteran's lay statements that she had continuous problems with her right foot since service and the medical evidence that shows such. Although the Veteran's right foot injury was not noted in the April 1991 line of duty determination document, it was concluded that the January 1991 motor vehicle accident occurred during the line of duty. During her hearing, the Veteran testified that she hurt her foot during this car accident. The Board finds the Veteran's statements to be credible as she is competent to report observed symptoms of pain and discomfort. Additionally, the Veteran's service treatment records shows that she had right foot problems throughout service. In a September 2009 x-ray of her right foot, the Veteran was diagnosed with moderate to severe osteoarthritis of the tarsometatarsal joint and intertarsal bones, moderate enthesophyte, and mild plantar spur formation. In a February 2021 VA examination of her right foot, the Veteran was diagnosed with plantar spur and degenerative arthritis. Arthritis is a chronic disease that may be service-connected based on the theory of continuity of symptomatology. It is clear that the Veteran had continuous symptoms of arthritis and pain throughout service. Therefore, service connection for degenerative arthritis of the right foot is granted. 3. Entitlement to service connection for hypertension. The Veteran is seeking service connection for hypertension. She claims that she was diagnosed with hypertension in 2003 while she was stationed at Fort Benning. She started taking blood pressure pills while on active duty. See March 2019 Hearing Transcript. The Board finds that service connection for hypertension should be granted based on a theory of continuity of symptomatology. Hypertension is a chronic disease for which service connection may be granted under the theory of continuity of symptomatology. The Veteran's service treatment records show that she had elevated blood pressure during service. For example, in April 1993, the Veteran's blood pressure was 138/88. In July 2009, the Veteran's blood pressure was 130/80. In January 2008, during the time that the Veteran was on active duty, the Veteran was diagnosed with essential hypertension. In October 2014, the Veteran was afforded a VA examination for hypertension. It was noted that she had a diagnosis of hypertension since 2002 (during the time that the Veteran was in military service). The Veteran reported that she began taking medication in 2002. In February 2021, the Veteran was afforded a VA examination for hypertension. She was diagnosed with hypertension. The Veteran reported a long history of hypertension. The VA examiner opined that it was less likely than not that the Veteran's claimed hypertension was related to or had its onset during a period of active service or ACDUTRA. The VA examiner noted that the Veteran's service dates were April 6, 2007 to June 24, 2008, March 13, 1995 to August 11, 1995, October 3, 1994 to March 3, 1995, March 18, 1994 to September 22, 1994, February 5, 1978 to May 25, 1978, and November 20, 1977 to November 29, 1977. A January 1977 entrance examination showed no diagnosis of hypertension, left knee pain, or right foot pain. A treatment record dated November 9, 2006 showed a diagnosis of hypertension. However, this was outside the reported dates of service. There was no objective medical evidence that the claimant was diagnosed with hypertension during dates of service. Furthermore, there was no line of duty determination that hypertension was incurred in service. It was less likely than not that the Veteran's current hypertension was incurred in or caused by the Veteran's in-service injury, event, or illness. The February 2021 medical opinion is inadequate and does not weigh against the Veteran's claim because the opinion failed to consider that the Veteran was diagnosed with hypertension during the time she was on active duty in January 2008 and the fact that the Veteran had elevated blood pressure readings throughout service. (Continued on next page) The Board finds the Veteran's statements that she had high blood pressure and had been taking high blood pressure pills since service to be credible. The evidence of record shows that the Veteran was diagnosed with hypertension during active duty. She had a long history of hypertension since service. Therefore, service connection for hypertension should be granted under the theory of continuity of symptomatology. Thus, service connection for hypertension is granted. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Crawford, 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.