Citation Nr: 21071749 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 16-49 866 DATE: December 1, 2021 REMANDED Entitlement to service connection for left knee osteoarthritis, with meniscal tear, instability, and patellofemoral pain syndrome is remanded. Entitlement to service connection for right knee osteoarthritis, with instability and patellofemoral pain syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to July 1988, and again from November 1990 to May 1991. The Veteran also has pertinent service as a member of the National Guard, to include periods of active duty for training (ACDUTRA or ADT), and inactive duty for training (INACDUTRA or IDT). This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. On May 14, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Memorandum Decision that vacated the Board's March 24, 2020 decision and remanded the issues of service connection for a left knee disability and service connection for a right knee disability all back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated August 17, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran's representative submitted an updated attorney brief on October 6, 2021, within the 90-day window. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's Memorandum Decision will be discussed further in the remand section below. In November 2018, the Board remanded the above issues for additional development. Based on the Court's memorandum decision, the issues must again be remanded. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes a separate appeal from this Veteran also under the Board's jurisdiction. However, since that separate appeal is under the modernized system of appeals created under the Appeals Modernization Act (AMA), by law and Board policy the appeals cannot be merged, and that AMA appeal has been docketed separately and will receive a separate decision. ACDUTRA/INACDUTRA and Service Connection Legal Considerations The Veteran served primarily as a member of the Army National Guard, and was discharged from the Guard in March 1993. He served a period of active duty from May to July 1988 for his basic training, and then was activated under federal orders for Operations Desert Shield and Desert Storm from November 1990 to May 1991 as noted above, with service at Fort Polk, Louisiana. The remainder of his service is characterized as active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). See 38 U.S.C. §§ 102(22), (23); 38 C.F.R. § 3.6(c). Service connection for only injury incurred during INACDUTRA is warranted, as opposed to injury or disease, in the case of ACDUTRA. 38 U.S.C. § 101(24)(C); 38 C.F.R. § 3.6(a) (emphasis added). "Injury" is damage inflicted on the body by an external force, but "disease" is a definite pathological process having a characteristic set of signs and symptoms. See 38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.6. Generally, in order to qualify for VA benefits, a claimant must be a Veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "Veteran" is one of the five elements of a claim for service-connection benefits). Here, because the Veteran served a period of active duty at the beginning of his overall service, primarily for his basic and follow-on training after initial enlistment, and an additional period of active duty from November 1990 to May 1991, the Board finds the Veteran has achieved status as such. Id. Personnel records currently in the Veteran's claims file indicate periods of active duty for training in addition to the active-duty periods noted above. These periods include June 5 to August 7, 1987; June 1 to June 17, 1989; August 1 to August 18, 1990; and July 18 to August 1, 1992. As part of this remand, the Veteran will be solicited for any additional information that might identify additional periods of active duty for training or inactive duty for training from any service records not yet part of the claims file. Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Lay statements alone cannot be used to establish "Veteran" status. See Venturella v. Gober, 10 Vet. App. 340 (1997). One determinative question then becomes whether the Veteran's claimed disabilities in this appeal derive or originate from a period of active service, to possibly include full-time duty, ACDUTRA, or INACDUTRA. 38 U.S.C. § 101(24)(B), (C); 38 C.F.R. § 3.6(a). 1. Entitlement to service connection for left knee osteoarthritis, with meniscal tear, instability, and patellofemoral pain syndrome is remanded. 2. Entitlement to service connection for right knee osteoarthritis, with instability and patellofemoral pain syndrome is remanded. The Veteran originally filed a claim for service connection for his bilateral knees and his back in September 2015. The Veteran's theory of his case is that he was called to active duty for Operation Desert Shield in November 1990 and sent to Fort Polk, Louisiana, where he "over-exerted himself and his body while training for combat operations over many months during this time frame." The Veteran included that this training included "long road marches, jumping, hand to hand combat, live fire weapons training and munitions explosions," and that he would have soreness in his knees and hips after completing the obstacle course of wall climbing and jumping 7-foot barricades. The Veteran also stated "he was told he should push through the pain and aches because combat would be a whole lot worse." After the initial rating decision denied that claim, the Veteran appealed but was eventually denied in a March 2020 Board decision based on a lack of nexus back to service. On May 14, 2021, CAVC issued a Memorandum Decision which vacated the March 2020 Board decision that denied entitlement to service connection for service connection for a left knee disability and a right knee disability, and remanded to the Board for further consideration and development. No. 20-3157, 2021 U.S. App. Vet. Claims (May 14, 2021) (unpublished). In its statement for the bases for remand back to the Board, the Court noted the August 2016 VA examination for which the Board relied for its decision denying service connection for a bilateral knee disability was inadequate. The Court too issue with the Board's assessment of the evidence, both lay and medical, was deficient in that weight, competency, and credibility was not appropriately evaluated for all of the existing evidence in the claims file at the time of the appeal. The Court also stated that the Board erred when it did not discuss whether the Veteran was entitled to service connection on continuity of symptoms basis. The Court noted diagnoses of degenerative arthritis of the Veteran, a chronic disease, of both knees. As noted earlier, the Veteran has two periods of active duty, from May to July 1988 and then again from November 1990 to May 1991. However, most of his service is in the Louisiana National Guard, where he has additional periods of ACDUTRA/ADT and INACDUTRA/IDT that are potentially qualifying for service in terms of possible service connection. As part of this remand, then, both VA and the Veteran will be solicited for any potential service records that identify other periods of ACDUTRA and/or INACDUTRA, and a request will be made of the assigned VA examiner to identify all pertinent diagnoses as either an "injury" or a "disease," given that is pertinent for potentially qualifying time periods for the Veteran's service connection claim. Service connection may be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis or degenerative disc disease, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection for degenerative arthritis can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA must provide an examination that is adequate for rating purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). If VA undertakes to provide an examination, even if not required to do so, the examination must be adequate, or the Veteran informed as why one cannot or will not be provided. Daves v. Nicholson, 21 Vet. App. 46, 52 (2007). As such, the Board must remand for a new VA examination and opinion for service connection. The Board also takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran, to include any records relating to the Veteran's military service in the National Guard through his separation in March 1993. Emphasis here should include the detailed ascertainment of all periods of active duty, active duty for training, and inactive training for training. 2. After the record search is complete, and any new records are added to the claims file, schedule a VA examination by a VA medical professional with the expertise necessary to address the nature and etiology of the Veteran's claimed bilateral knee disabilities, to include all orthopedic and neurological manifestations. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran's entire record, the examiner should provide an opinion as to the following: Whether it is at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed left knee and/or right knee disabilities had their onset in service or are otherwise related any to any in-service disease, event, or injury? The examiner is requested to identify any diagnosed disability as either an injury or a disease, given that determination is potentially qualifying given the nature of the Veteran's ACDUTRA and INACDUTRA service, if such original incurrence did not occur within the two periods of active service. The examiner is reminded of the legal definitions pursuant to federal law and regulation in Title 38: "injury" is damage inflicted on the body by an external force, and "disease" is a definite pathological process having a characteristic set of signs and symptoms. See 38 U.S.C. § 101; 38 C.F.R. §§ 3.1, 3.6. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). When considering the evaluations, the examiner is to carefully consider all lay statements of record, VA treatment records, and private treatment records and evaluations. The examiner should view the Veteran as a reliable historian as to his service and his reports of his activities and symptoms in and since service. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Attention is invited to the Veteran's reports and statements of chronic pain in his back and knees since active service. The Board takes notice of the recent precedential Federal Circuit case, Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that pain alone may constitute a disability for VA compensation purposes when it results in "functional impairment of earning capacity." Id. at 1368. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.