Citation Nr: 21009863 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-00 283 DATE: February 23, 2021 ORDER Service connection for a right knee disability is granted. Service connection for a left knee disability is granted. FINDINGS OF FACT The Veteran’s right and left knee disabilities had their onset in his Army Reserve service, during periods of active duty for training (ACDUTRA). See VA Treatment Records (VATRs) dated June 2007, January 2008 (noting development of left and right knee pain during reserve service). CONCLUSIONS OF LAW 1. The criteria for service connection for a right knee disability are met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for service connection for a left knee disability are met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Introduction The Veteran served on active duty in the Army from March 1987 to March 1991 and from May 2002 to August 2003, with subsequent service in the National Guard and Army Reserve until December 2011. This case is before the Board of Veterans’ Appeals (Board) on appeal from January 2011 and September 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board remanded this case in April 2020 to seek personnel records attesting to the Veteran’s periods of ACDUTRA and inactive duty for training (INACDUTRA) and to afford the Veteran a new VA examination and medical nexus opinions in support of his claims. The relevant personnel records were added to the claims file in July 2020, and the Veteran was afforded a new VA examination with opinions in November 2020. Thus, there has been substantial compliance with the Board’s prior remand instructions, and an additional remand is not necessary. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). Entitlement to Service Connection Generally, in order to prove service connection, there must be competent, credible evidence of 1) a current disability, 2) in-service incurrence or aggravation of an injury or disease, and 3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In addition, service connection may be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show that 1) a current disability exists, and 2) the current disability was either a) caused by or b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In this case, the Veteran has asserted both that his knee disabilities are directly related to service and that they are secondary to his service-connected left foot plantar fasciitis. See October 2008 Claim for Disability Benefits; August 2010 Claim for Disability Benefits; February 2015 Board Hearing. As noted above, the Board finds that the Veteran’s currently disabilities did have their onset during a period of ACDUTRA. (Although periods of ACDUTRA do not normally constitute periods of active duty service, VA benefits nevertheless may be awarded for disabilities related to injuries or diseases that were either incurred in or aggravated during a period of ACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991).) The earliest mention of knee problems in the record is a June 8, 2007 VATR, which reflects left knee pain that reportedly developed over the last two weeks. The Veteran’s personnel records indicate that the Veteran had been on ACDUTRA for this entire period. See July 2020 Defense Finance and Accounting Service Report. The next mention is a January 2008 VATR, not during a period of ACDUTRA, which reflects a report of bilateral knee trouble the Veteran attributed to overtraining for a PT test. The clinician made an assessment of overuse syndrome and degenerative joint disease. The record reflects continuous knee complaints from the time of these records to the present, and the Veteran’s diagnosis remains bilateral degenerative arthritis. See, e.g., VATRs dated March 2010, March 2012; February 2015 Board Hearing; November 2020 VA Examination. In short, this evidence indicates that the Veteran’s left knee disability had its onset during a period of ACDUTRA, and that his right knee disability was first attested while he was still serving in the Army Reserve. Although the record does not reveal precisely when his right knee disability began, the disability was already noted as “chronic” at the time of the January 2008 VATR. Given that the Veteran had served intermittent periods of ACDUTRA since at least 2005 and that his left knee disability had its onset during a period of ACDUTRA, the Board finds that the evidence is at least equally balanced as to whether the Veteran’s right knee disability had its onset during a period of ACDUTRA. Therefore, resolving all reasonable doubt in the Veteran’s favor, the Board finds that it did. See 38 C.F.R. § 3.102. Weighing against this finding is the conclusion of the November 2020 VA examination and medical nexus opinion. (The Veteran was afforded two other VA examinations during the claim period, in Mary 2009 and January 2011. The former did not include a nexus opinion; the latter the Board previously found to be inadequate. See April 2020 Board Remand.) The examiner stated that the Veteran’s right and left knee disabilities were not related to his active duty service, primarily on the grounds that “the [claims file] is silent for a knee disability during the Veteran’s military service.” However, as noted above, the record does reflect knee complaints and treatment during the Veteran’s reserve service, including periods of ACDUTRA. Therefore, because the conclusion of the November 2020 VA examination rests on premises contrary to the evidence of record, the Board finds that it is inadequate and affords it no weight. Therefore, the Board finds that the Veteran’s right and left knee disabilities had their onset in his Army Reserve service during a period of ACDUTRA. Accordingly, service connection for right and left knee disabilities is warranted. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Timmerman, 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.