Citation Nr: 21073515 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 17-62 335 DATE: December 8, 2021 ORDER Service connection for left knee disability is denied. Service connection for right knee/leg disability is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the appellant has a left knee disability began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that the appellant has a right knee/leg disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for right knee/leg disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had active duty for training (ACDUTRA) from August 1979 to November 1979 in the Army Reserve, which was characterized as honorable, with subsequent service from March 1981 to March 1982 in the Army National Guard (ARNG) of Georgia, which was characterized as under other than honorable conditions. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The appellant testified at a December 2019 hearing before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In February 2020, the Board remanded the appeal for further development. There has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). As an initial matter, the Board notes that as a National Guardsman/Reservist with only a period of ACDUTRA, who has not yet established service connection for any disability, the appellant has not established his status as a veteran. See 38 C.F.R. § 3.1. 1. Entitlement to service connection for left knee disability 2. Entitlement to service connection for right knee/leg disability The appellant seeks service connection bilateral knee disability. See Appellate Brief (September 2021). The appellant and his representative contend that his current left and right leg disabilities had their onset during, or are related to, his ACDUTRA period. Specifically, the appellant testified that during his ACDUTRA period he injured his legs, was placed on light duty for a week, and first sought medical treatment for his legs in 1993. The appellant additionally argues that the cramps and swelling he experienced during, and following, his ACDUTRA period are early signs or symptoms of deep vein thrombosis (DVT) and peripheral artery disease (PAD) or peripheral vascular disease. See Correspondence (December 2019). It is noted that he has had below knee amputation (BKA) on the left as a result of peripheral vascular disease. In support of the appeal, the appellant submitted a copy of a December 2019 email (the account of a relation of the appellant) and that it purports to reflect the text of a news article(s) indicating, generally, that a minor leg injury such as sprain or muscle rupture has a high risk of developing blood clot; that leg pain while walking or doing other activities could be a sign of PAD; and that early warning signs of DVT include pain, swelling, warmth, redness, leg cramps. After the text, there is a check next to the statement "I agree." Along with the email is a copy of a business card belonging to "Cancer Specialists of North Florida" Dr. R. Shameen. There is no accompanying medical opinion. See Correspondence (December 2019). The Board concludes that the preponderance of the evidence weighs against finding that the appellant's left knee and/or right knee/leg disability began during ACDTURA or a period of inactive duty for training (INACDUTRA), or is otherwise related to an injury during ACDUTRA or INACDUTRA. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. Service connection basically means that the facts, shown by evidence, establish that an injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) 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); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d). Reserve and National Guard service generally means active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c). That usually includes two weeks of annual training and/or an initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d). With respect to Reserve service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). The evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases that manifest to a degree of 10 percent or more within a specified time after separation from service-do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). Here, service treatment records (STRs) for the appellant's period of ACDUTRA reflect no complaints of or treatment for lower extremity pain or findings for abnormal musculoskeletal pathology. An October 1979 Report of Medical History (ROMH) completed by the appellant reflects that he denied a history of having or ever having had swollen or painful joints, arthritis bone or joint deformity, lameness, and "trick" or locked knee. He reported a history of eye trouble and cramps in the legs. An October 1979 Report of Medical Examination (ROME) for separation reflects normal clinical evaluation of the lower extremities and vascular system. See STR (May 2015). The medical officer noted the appellant had "no significant medical problems while on active duty." During the appellant's subsequent ARNG service, in May 1981, the appellant reported to sick call with a "sore leg;" following examination, he returned to duty. The medical officer noted he was "good." Bilateral knee pain is first documented in October 2014, roughly 32 years after the appellant's separation from ACDUTRA. The appellant was referred to his primary doctor for a reported history of blood clots and an orthopedic specialist for knee pain. See Medical Treatment Record Non-Government Facility (May 2015). Private treatment records reflect the appellant had bilateral DVT in March 2015, PAD resulting in left knee amputation in March 2017, and right knee arthritis. Private treatment providers do not link the appellant's conditions to an in-service injury. In May 2015, VA received the appellant's initial application for compensation for left knee injury and right knee injury. The notation was "Attributed to Injury in Basic Training" and no further details were provided. See VA Form 21-526EZ (May 2015). In October 2020, the appellant underwent VA examinations for knee and lower leg conditions, as well as for artery and vein conditions (vascular disease including varicose veins). The diagnoses were bilateral knee strain, right knee arthritis, peripheral vascular disease (PVD), unspecified DVT of the bilateral lower extremities, and left BKA. See C&P Exam (October 2020). By history, the appellant had cramps and bilateral leg pain since ACDUTRA with swelling during the 1990s that decreased with elevation of the lower extremities. The VA knee examination noted that the appellant's left BKA was due to DVT. The associated medical opinion reflects that the appellant's claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The clinician acknowledged the appellant's theory claims that his leg cramping while in the military represented early signs/symptoms of later found DVT. However, the clinician explained that this was incongruous with what is medically known about DVT. For instance, that DVT is an acute finding requiring emergent treatment and chronic after treatment initiated. The clinical noted that the many year gap (35 years) between the appellant's the leg cramps in the military and findings for DVT was simply too long to have occurred without there having been complications occurring. Further the clinician discussed the appellant's documented medical history and explained that the appellant is not shown to have had risk factors for vascular disease in service but rather years later, suggesting that this too is incongruous with a link between the disability and the appellant's service. Further, the opinion acknowledged the appellant's report of leg cramps, legs soreness but noted that, in most cases, the cause is never found and considered generally harmless; and while they may be linked to an underlying disorder (e.g. diabetes or PAD), the symptoms of DVT (e.g. swelling, not, painful to touch, leg pain) worsen when bending the foot with skin discoloration, which is not shown in service. The Board finds the October 2020 medical opinion of high probative value. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a medical professional provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Having carefully reviewed the lay and medical evidence of record, the preponderance of the evidence weighs against finding that the appellant has a right and/or left knee disability that began during a period of ACDUTRA or INACDUTRA. As addressed above, the appellant is not shown to have had a disability of either knee during his ACDUTRA or any INACDUTRA. Indeed, chronic symptoms of disability are first documented decades after the appellant's period of ACDUTRA while in the Reserves and subsequent service in the ARNG. Further, to the extent that the appellant believes that he had lower extremity symptoms during his ACDUTRA that represent the onset of DVT or PAD, or other vascular disorder, he is not competent to formulate a medical opinion on that matter. The etiology of the appellant's post service diagnosis of DVT, PAD, and peripheral vascular disease is a complex medical matter and requires knowledge of the vascular system and its disease processes. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). While the appellant is competent to report his symptoms in and since his military service, to the extent that the appellant suggests onset of right and/or left lower extremity symptoms, to include of either knee, during his ACDUTRA, the Board finds that this is not credible in view of (1) the October 1979 ROME on separation from ACDUTA, which showed normal clinical evaluation of the lower extremities and vascular system along with his denial of relevant history on his ROMH; (2) his entry/acceptance into the USNG and later only an isolated complaint of leg soreness in May 1981 that did not preclude his return to duty, coupled with the absence of any further complaints or findings for abnormal pathology of either knee or lower extremity during his remaining USNG service prior to discharge under other than honorable conditions and many years later; and (3) the many years intervening the appellant's ACDUTRA and the first documented complaints or findings for abnormal pathology of either lower extremity. Therefore, the Board finds that, to the extent that is it suggested by the appellant that his symptoms began and persisted since the appellant's ACDUTRA, the statements have no probative value. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. § 3.303. The Board acknowledges a December 2019 email submitted in support of this appeal. However, it is not accompanied by a medical opinion addressing the etiology of the appellant's disability of either lower extremity. Therefore, it has little probative value. In sum, the weight of the evidence is against finding that the appellant had any DVT, or other vascular disorder, of either lower extremity during his ACDUTRA or any period of INACDUTA. Lastly, neither the lay nor the medical evidence establishes that bilateral knee strain or right knee arthritis began during the appellant's ACDUTRA or is etiologically related to injury or disease incurred during his ACDUTRA or injury during any INACDUTRA. The Board assigns greater probative value to the appellant's STRs and post-service medical records, which contain no objective finding for a lower extremity disability to include the right and/or left knee, until years after the appellant's Reserve and USNG service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which the veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board additionally assigns greater probative value to the October 2020 medical opinion than to the appellant's uncorroborated medical opinion that his post military service DVT began in service or is related to symptoms he had during ACDUTRA. This is because the medical professional is shown, through the comprehensiveness and detailedness of the medical opinion, to have possessed the necessary education, training, and expertise to provide the requested opinion. Additionally, the opinion is also shown to have been based on a review of the appellant's record and is accompanied by a sufficient explanation as to why his theory is not supported by his clinical picture and what is known about DVT. The opinion, moreover, reflects a reasoned medical explanation with consideration of lay statements, and relevant STRs and post service medical records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). It is clear from the medical opinion that the clinician reviewed the appellant's claims file and considered the theory of entitlement. Also, the medical opinion is supported by a rationale that the Board can use to weigh against the other evidence of record. On balance, the weight of the evidence is against the claim. Accordingly, the appeal is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.