Citation Nr: 21015829 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 15-26 271 DATE: March 18, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a left knee meniscal tear is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that the Appellant’s claimed back injury occurred during a period of active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA), as defined by VA law and regulations. 2. It is as likely as not that the Appellant’s meniscal tear of the left knee occurred during his July 2009 period of ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability are not met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.303. 2. The criteria for entitlement to service connection for left knee meniscal tear are met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served on ACDUTRA with the Army from February 13, 1984 to June 25, 1984 and served with the Guam National Guard from November 2007 to November 2009, with a confirmed period of ACDUTRA from July 3, 2009to July 17, 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Appellant testified at a video conference hearing held before the undersigned Veterans Law Judge. A transcript of this hearing has been added to the record. These claims were last before the Board in July 2018 where they were remanded for additional development. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of INACDUTRA which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. §§ 3.6(a), (c), (d). In other words, service connection may be granted for injury or disease incurred while on ACDUTRA and for injury incurred while on INACDUTRA, but not disease. 38 U.S.C. § 101(24). Presumptive periods for service connection, the presumption of soundness, and the presumption of aggravation do not apply to ACDUTRA or INACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during such period. Smith v. Shinseki, 24 Vet. App. 40 (2010); Donnellan v. Shinseki, 24 Vet. App. 167 (2010). In any event, the Appellant’s period of ACDUTRA was less than 90 days; thus, the presumption of service connection for certain chronic diseases pursuant to 38 C.F.R. § 3.309(a) is not for application. For National Guard service, ACDUTRA is defined as full-time duty performed by members of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22)(C); 38 C.F.R. § 3.6(c)(3). INACDUTRA is defined as duty (other than full-time duty) performed by a member of the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d)(4). Thus, in order for National Guard service to be qualifying service for VA compensation purposes, the period of service must have been “federalized,” that is to say, his or her unit was ordered into Federal service under 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 C.F.R. § 3.6(c), (d). 1. Entitlement to service connection for a back disability The Appellant contends that he injured his back operating heavy machinery during ACDUTRA in July 2009, and during a physical training run in November 2009. See November 2009 Statement. Upon review of the record, the Board finds that the preponderance of the evidence is against a finding the Appellant’s back was injured during a period of active duty, ACDUTRA, or INACDUTRA, as defined by VA law and regulations. The Appellant’s National Guard personnel records show that from July 3, 2009 to July 17, 2009, he was ordered into ACDUTRA under the authority of 32 U.S.C. § 502, under the authority of Guam’s National Guard. However, there is no indication that his November 2009 training was federalized National Guard service. Thus, disability associated with the November 2009 training cannot serve as a basis for service connection. While service treatment records note the Appellant being seen for left knee derangement and joint pain in the knee during the period of ACDUTRA in July 2009, there was no mention of back pain or back complaints at this time. See AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Board notes that the Appellant saw a chiropractor on July 24, 2009 for left knee complaints and was noted to have sacroiliac misalignment. However, subsequent diagnoses, including degenerative disc disease of the thoracolumbar spine, following radiographic studies were not shown until June 2010. In April 2020, a VA examiner opined the Appellant’s back disability was less likely than not related to his ACDUTRA. The examiner noted he did not complain of back pain during his July 2009 ACDUTRA and that the diagnosed back disabilities were not shown until after his ACDUTRA. The examiner further noted that he used to work as a moving and storage truck driver full time, packing household items, picking up and delivering goods up to 50 pounds and walking up to 50 yards with them. The examiner concluded that job, which lasted longer than any of his active duty times, would be at least as likely as not responsible for his currently diagnosed back disability. In sum, the Appellant’s back disability was not shown during a period of federalized ACDUTRA nor was an injury shown during a period of federalized INACDUTRA. Moreover, the most probative medical evidence indicates the Appellant’s current back disability is not related to his July 2009 period of ACDUTRA. Accordingly, the preponderance of the competent and probative evidence is against the Appellant’s claim, and service connection for a back disability is denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the probative evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).   2. Entitlement to service connection for a left knee disability The Appellant is seeking entitlement to service connection for a left knee disability, which he asserts occurred during his July 2009 period of ACDUTRA. Service treatment records for this period of ACDUTRA note the Appellant was seen on July 14, 2009 complaining of a left knee injury. He was noted to have left knee pain and left knee derangement. His knee was wrapped and he was placed on limited duty from July 14, 2009 to July 18, 2009. Treatment records following that period of ACDUTRA and prior to November 2009 training indicate continued left knee complaints. During the November 2009 training, he was noted to be limping during a run, but there is no indication of a specific injury to the left knee at that time. An April 2010 private treatment record noted the Appellant reporting a history of left knee pain for 9 months (i.e., since July 2009) after heavy running at National Guard training. The physician ordered an MRI, which revealed a degenerative tear of the posterior horn of the medial meniscus. The June 2011 x-ray examination on VA examination was interpreted as showing osteosclerotic changes in the anterior/superior aspect of the patella that “are probably related to prior injury.” The May 2015 VA examiner indicated the Appellant’s knee arthritis existed prior to his period of ACDUTRA and the 2020 VA examiner agreed but stated the condition was first diagnosed during service. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Appellant’s medial meniscal tear noted on MRI in 2010 to have manifested during the July 2009 period of ACDUTRA when knee derangement was noted. The Board acknowledges that the 2020 VA examiner provided a negative opinion on this question because the diagnosis was not made until after his period of service. However, the Board finds the Appellant’s continued complains of knee pain following his July 2009 ACDUTRA until ultimate MRI testing, to be persuasive. Accordingly, after resolving all doubt in favor of the Appellant, the Board finds that service connection for left knee meniscal tear is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.