Citation Nr: 21071061 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-30 153 DATE: November 29, 2021 ORDER Entitlement to service connection for a left knee disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the appellant's left knee disability is related to disease or injury incurred during a period of ACDUTRA or related to an injury incurred during a period of INACDUTRA. CONCLUSION OF LAW The criteria for entitlement to service connection for a left knee disability have not been met. 38 U.S.C. §§ 101, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant had a period of service in the Army National Guard from November 1979 to June 1982, which included a period of active duty for training (ACDUTRA) from July 1980 to November 1980. He also served in the Army Reserves from June 1982 to December 1985. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Board reopened and remanded the matter to obtain any outstanding treatment records identified by the appellant. As the actions specified in the most recent remand have been substantially complied with, the matter is again properly before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist With respect to the appelant's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the appellant nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110 , 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Thus, service connection may be granted for a 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, 1110, 1131. Only veterans are entitled to VA compensation under 38 U.S.C. §§ 1110 , 1131. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a veteran a claimant must serve on active duty, serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA, or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service on active duty alone is sufficient to meet the statutory definition of veteran; however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one veteran status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). In addition, for certain chronic diseases a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. That presumption is rebuttable by probative evidence to the contrary. 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection when the requirements for application of the presumption are not met. 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). However, as applies to this case, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for a certain disease, arthritis) for periods of ACDUTRA or INACDUTRA is not appropriate, as those presumptions of service incurrence only apply to Veterans who serve on active duty. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). 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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for a left knee disability is denied. The appellant seeks service connection for a left knee disability which he contends is the result of an in-service left knee strain that occurred on July 25, 1980, during a period of ACDUTRA. Throughout the period on appeal the appellant has been diagnosed with bilateral patellofemoral syndrome, genu varus, osteoarthritis, and bilateral medial compartment syndrome. Turning to the relevant evidence of record, service treatment records (STRs) reflect the appellant's July 1980 treatment for left knee strain. During training exercises the appellant slipped and fell, injuring his knee. He was given light duty for two days and instructed not to do physical training. There are additional references to the left knee documented in his STRs. The appellant's earliest post-service complaint of knee pain was in September 1997. See September 4, 1997 Private Progress Note. A May 1999 private treatment note reflects that the appellant has pain in his bilateral knees. The appellant reported that while playing soccer he jumped for the ball and fell and hit his head on a board. He complained of slight discomfort to the back of his head and the knee area. Assessment revealed only a slight area of swelling on the back of the head area, no other injuries were noted. See May 21, 1999 Private Treatment Note. An October 2000 private treatment note reflects the appellant's complaints of constant, bilateral knee pain that was ongoing since 1983. The appellant also reported that he began having knee pain right after leaving service in 1982. See October 23, 2000 Private Treatment Note. An October 2000 x-ray of the appellant's left knee revealed small osteophytes about the intercondylar notch, but was otherwise interpreted as normal. See October 23, 2000 Private X-ray, November 10, 2000 Private Treatment Note. The appellant underwent VA examinations in January 2002, November 2005, and August 2015, and the RO obtained VA opinions pursuant to the November 2005 and August 2015 VA examinations. During the January 2002 examination, the appellant reported bilateral knee pain which started about 6 months after discharge from service. While the examiner determined that the appellant may experience additional range of motion loss due to pain, especially after prolonged walking or sitting up, the examiner did not provide an opinion regarding service connection. At his September 2003 Board hearing, the appellant testified that could only bend his knee so far before experiencing pain. He cannot squat, walking long distances, or walk uphill. Prolonged sitting also causes pain. The appellant lives in "pain all the time" with pain that diverges to his back and shoulder. The appellant reported that his knee issues began after service in approximately 1992 or 1993. An October 2003 private exam revealed bilateral marked genu varus without effusion. X-rays showed significant symmetrical genus varus. The appellant was noted as being a candidate for bilateral, symmetrical, corrective proximal tibial valgus osteotomies to redistribute the weightbearing in his knees. The provider noted that in his opinion the appellant was "entitled to full medical management, including the surgery [proposed] for the correction of service-connected right knee patellofemoral syndrome and for the left knee patellofemoral syndrome." See October 8, 2003 Private Treatment Note. A December 2003 private treatment note reflects the appellant's complaint of 20 years of bilateral knee pain. See December 1, 2003 Private Treatment Note. In an August 2004 letter, the appellant's private physician stated that the appellant had bilateral patellofemoral syndrome believed to be service related, treatable, and well controlled under a comprehensive medical and surgical treatment plan. The provider stated that any assistance the VA could offer to enable the appellant to receive the care he needs would be appreciated. The provider did not offer any rationale to support his belief that the appellant's knee disabilities were service related. See August 31, 2004 Letter. Therefore, the opinion is entitled to no probative weight as to the question of a nexus. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). An August 2004 examination of the knees by a private physician noted the appellant's complaints of constant bilateral knee pain and the incurrence of a superficial laceration to the right lower leg during service that had healed without problems. The diagnosis was bilateral medial compartment early osteoarthritis with varus deformities. See August 31, 2004 Private Treatment Record. During the November 2005 VA examination, the appellant reported that his knees began to hurt him after service and that he experiences constant knee pain. The examiner noted the appellant's in-service left knee strain and right knee laceration. Imaging obtained pursuant to the exam revealed no evidence of acute osseous injury, and no degenerative changes. Small joint effusion was seen on the lateral view. Overall, the examiner diagnosed the appellant with bilateral medial compartment syndrome and noted it was not likely due to his in-service injuries, but rather at least as likely as not due to the appellant's non-service-connected bilateral pes planus. The appellant underwent another VA examination in August 2015. The examiner reviewed the appellant's entire claims file and noted that the appellant was diagnosed with a single episode of resolved left knee strain in 1980. The examiner continued with his review of the file, finding that in September 1997 the appellant was seen with complaints of knee pain, in May 1999 that he fell at volleyball, and in October 2000 he was seen for bilateral knee arthritis and torn cartilage. The appellant at that time reported ongoing knee pain that began right after leaving service in 1982. The examiner summarized the findings in the medical records of post service multiple visits for bilateral knee pains, some related to sports related injuries. In 2003, he was diagnosed with bilateral patellofemoral syndrome. In addition, he has non-service connected pes planus that is thought to contribute to his knee pains. The examiner opined that the appellant's current knee condition is less likely as not related to a single resolved episode of left knee strain in 1980, and is at least as likely as not due to post service diagnosis. Based on the foregoing, the Board finds that the preponderance of the evidence weighs against finding in favor of service connection for the appellant's left knee disability. In making this finding, the Board finds the August 2015 VA opinion to be the most probative, competent medical opinion of record regarding the etiology of the appellant's left knee disability. The August 2015 VA examiner provided a fully articulated conclusion adequately supported by medical rationale, consideration of the appellant's lay statements, and citation to the appellant's claims file and medical history. The Board finds that opinion constitutes probative evidence on the medical nexus question, based on review of the appellant's documented medical history and assertions and physical examination as well as consideration of the appellant's contentions. The opinion provided a clear rationale based on an accurate discussion of the evidence of record. Prejean v. West, 13 Vet. App. 444 (2000); Guerrieri v. Brown, 4 Vet. App. 467 (1993). Significantly, neither the appellant nor representative has presented or identified any contrary probative medical opinion that supports the claim for service connection for a left knee disability. VA adjudicators are not free to ignore or disregard the medical conclusions of a VA physician, and are not permitted to substitute their own judgment on a medical matter. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Willis v. Derwinski, 1 Vet. App. 66 (1991). Finally, the Board recognizes that the appellant sincerely believes that his left knee disability was incurred in or caused by his periods of ACDUTRA or INACDUTRA. The appellant is competent to report on matters observed or within his personal knowledge and is therefore competent to make statements regarding his symptoms and medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of his left knee disability requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the appellant is not competent to render a persuasive or competent medical opinion on whether his left knee disability was incurred in or caused by his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any opinion by the appellant regarding the etiology of his disability is not competent evidence. The Board finds the August 2015 VA medical opinion of record, provided by a qualified medical professional, to be more probative regarding causation and is against a finding of a relationship to his service. In summary, the Board finds that the preponderance of the evidence weighs against finding that the appellant's left knee disability is due to a period of ACDUTRA or INACDUTRA. As such, entitlement to service connection for a left knee disability is not warranted in this case. 38 C.F.R. §§ 3.102 , 3.303. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990). For these reasons, the claim is denied. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.