Citation Nr: 21073114 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-48 951 DATE: December 7, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. Entitlement to service connection for a lumbar spine disability is granted. FINDINGS OF FACT 1. The Veteran's current left knee disability is etiologically related to a knee injury incurred during a period of active duty for training (ACDUTRA). 2. The Veteran's current right knee disability is aggravated by her service-connected left knee disability. 3. The Veteran's current lumbar spine disability is aggravated by her service-connected left knee disability. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria to establish service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. 3. The criteria to establish service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from March 1971 to January 1976. She had additional service in the Air Force National Guard of New York. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In decisions dated April 2019 and June 2021, the Board remanded the matter for additional development. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 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). In the context of Reserve or National Guard service, active military service is defined to include any period of ACDUTRA in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty and any period of inactive duty for training (INACDUTRA) during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(c); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (explaining that "members of the National Guard only serve the federal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor."). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA (or INACDUTRA), without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a period of such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Relevant here, while arthritis is considered a "chronic disease" under 38 C.F.R. § 3.309(a), the presumptive provisions of "chronic" in-service symptoms and "continuous" post-service symptoms do not apply to periods of ACDUTRA or INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991), 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, consideration of 38 C.F.R. §§ 3.307 and 3.309 (presumption of service incurrence for certain diseases) for any periods of ACDUTRA and/or INACDUTRA is not appropriate. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, 31 Vet. App. 233 (2019). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left knee disability The Veteran asserts she is entitled to service connection for a left knee disability, to include as due to an injury incurred during a period of ACDUTRA in June 2009. As an initial matter, the Board finds that the Veteran has current left knee diagnoses of degenerative arthritis, anterior cruciate ligament tear, and internal derangement. See November 2014 VA knee examination report; letters from Dr. H.L.S. dated October 2013 and May 2016. Therefore, a current disability, to include arthritis, is established. Next, the Board finds that the Veteran had a left knee injury during her period of ACDUTRA in June 2009. A "DFAS Payment Worksheet" dated September 2021 confirms that the Veteran had a period of ACDUTRA from June 14, 2009 to June 26, 2009. In a Statement in Support of Claim received January 2020, the Veteran wrote, "While in active duty at McGuire AFB in June 2009, I was running on the track as part of PT and I twisted by left knee. I iced it, but it didn't get any better. I never went for treatment in the service, but went to the VAMC at Castle Point as soon as I came home, where I was treated." In a VA orthotics prosthetics consultation record dated July 14, 2009, the Veteran complained of left knee pain and reported that it had increased over the last month while she was in training. The Veteran further reported that she did not have a prior injury or trauma, and she was assessed with internal derangement of the left knee by Dr. H.L.S., her VA treatment provider. Accordingly, an in-service event is established. Thus, the remaining question before the Board is whether there is competent evidence of a nexus between the Veteran's current left knee disability and her in-service injury. Turning to the evidence, in a letter dated October 2013, the Veteran's VA treatment provider, Dr. H.L.S., wrote, "I have been treating [the Veteran] since July, 2009 for arthritis and internal derangement of the left knee. I first treated her in July of 2009 for left knee pain. She had been in training during the past month and noted pain of the knee, which was getting worse as she trained. I treated her with a steroid injection at that time. Her x-rays showed mild arthritic changes. She did well. I have continued to treat her since that time. When she came back in 2010, it was again after a month of training, and again the knee was increasingly painful. I again injected her with steroids. Her examination showed progressive loss of motion. Over the next 3 years her knee has continued to deteriorate showing loss of function, recurrent swelling, and increase of pain, as well as progression of the arthritis as shown on our imaging studies including x-rays and MRIs...In my opinion, it is more likely than not that the left knee became painful as a result of her military duties, and progressively deteriorated over the course of treatment. There were no other risk factors in this fit and slender female. The improvement in her symptoms after ending the training supports the causal relationship..." Dr. H.L.S. reiterated his positive nexus opinion in a May 2016 letter. The Board finds the October 2013 and May 2016 nexus opinions to be adequate and highly probative given Dr. H.L.S.'s expertise as an orthopedic surgeon and his opportunities to examine the Veteran over time as her treating physician. The Board acknowledges that the September 2021 VA examiner provided a negative opinion as to whether the Veteran's current left knee disability was related to her period of ACDUTRA in June 2009. The VA examiner reasoned, in part, that there "was no line of duty found in the records for report of service connected injury in 2009." However, the Veteran explained in a January 2020 Statement in Support of Claim that she did not seek treatment during her period of ACDUTRA, but rather received treatment at a VA facility immediately after. A July 2009 VA treatment record corroborates the Veteran's account of these events. To the extent the September 2021 VA examiner impermissibly relied on the absence of evidence in the Veteran's service treatment records to provide a negative etiology opinion, the Board finds the opinion to be inadequate under Dalton v. Nicholson, 21 Vet. App. 23 (2007). Accordingly, the Board affords the September 2021 VA medical opinion little to no probative value. As such, the October 2013 and May 2016 opinions authored by Dr. H.L.S. are the only adequate opinions of record and they are favorable to the Veteran's claim. For these reasons, the Board finds that the Veteran's current left knee disability is etiologically related to the left knee injury incurred during her period of ACDUTRA in June 2009. Service connection is therefore granted. 2. Entitlement to service connection for right knee and lumbar spine disabilities The Veteran also asserts that service connection is warranted for right knee and lumbar spine disabilities, to include as secondary to her now service-connected left knee disability. As an initial matter, the Board finds that the Veteran has current diagnoses of degenerative arthritis of the right knee and lumbar spine. See November 2014 VA knee and back examination reports. Accordingly, current right knee and lumbar spine disabilities are established. Thus, the remaining question before the Board is whether the Veteran's current right knee and lumbar spine disabilities are proximately due to or aggravated by her service-connected left knee disability. Turning to the evidence, in a May 2016 letter, Dr. H.L.S., the Veteran's VA treatment provider, wrote that the Veteran's left knee had been feeling worse, "and she reports increased limping. In addition, that constant limping has taken a toll on her back, causing increased pain and right sided sciatica...Her low back condition has become more and more symptomatic during this period due to her increased limping. Her disability is magnified by the secondary worsening of her back condition." In a March 2021 letter, Dr. H.L.S. wrote, "Unfortunately, [the Veteran's] left knee condition has continued to deteriorate long after her separation from the service, bringing with it consequential problems involving her right knee, which has to bear increased load, and her low back, which has suffered from her abnormal gait. She takes medications every day for her back and her knees. She is unable to run or participate in sports, but even more, she is limited in the normal activities of daily living." On review, the Board finds the May 2016 and March 2021 opinions authored by Dr. H.L.S. to be adequate and highly probative, given his expertise as an orthopedic surgeon and opportunities to examine the Veteran over time as her treating physician. The Board acknowledges that the November 2014 VA examiner provided a negative opinion as to whether the Veteran's right knee and lumbar spine disabilities were proximately due to her left knee disability. However, the Board finds the opinion to be inadequate because the VA examiner did not address the theory of secondary aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). As such, the May 2016 and March 2021 opinions authored by Dr. H.L.S. are the only adequate opinions of record and they are favorable to the Veteran's claims. For these reasons, the Board finds that the Veteran's current right knee and lumbar spine disabilities are aggravated by her service-connected left knee disability. Service connection is therefore granted for both claims on a secondary basis. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. M. Gill, Associate 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.