Citation Nr: 21024657 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 16-23 454 DATE: April 23, 2021 ORDER Entitlement to service connection for a right knee disability (claimed as stress fractures) is denied. Entitlement to service connection for a left knee disability (claimed as stress fractures) is denied. Entitlement to service connection for a left leg disability (claimed as stress fractures) is denied. Entitlement to service connection for a right leg disability (claimed as stress fractures) is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Appellant’s bilateral knee and leg disabilities were incurred or aggravated in the line of duty during ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for an entitlement to service connection for a right knee disability (claimed as stress fractures) have not been met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. . The criteria for an entitlement to service connection for a left knee disability (claimed as stress fractures) have not been met. 38 U.S.C. §§ 101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for an entitlement to service connection for a left leg disability (claimed as stress fractures) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an entitlement to service connection for a right leg disability (claimed as stress fractures) have not been 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 served on active duty in July 1995 with the U.S. Navy. He also served as a member of the Florida Army National Guard from March 2006 to June 2007, with a period of active duty for training (ACDUTRA) from April 2006 to September 2006, and a period of inactive duty (to include inactive duty for training (INACDUTRA)) from September 2006 to March 2007. Subsequently, he had inactive service with the North Carolina Air National Guard from June 2007 to February 2010. He testified before the undersigned Veterans Law Judge during a December 2018 video conference hearing, and a transcript is of record. The Board finds there has been substantial compliance with the prior Board remand instructions as the requested records and an adequate VA medical addendum opinion has been obtained. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Appellant nor his representative has raised any other issues with the duty to notify or duty to assist or with the conduct of his hearing. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. The Board is cognizant of the Appellant’s contentions that a January 2020 VA examination is inadequate. Specifically, the Appellant argues that the examination was only 15 minutes long, and that the examiner failed to adequately address his medical issues and made a contradictory statement (that even after verbally expressing he has a loss of range of motion (ROM) in both knees, wrote in the report “no loss of ROM”). See May and August 2020 Correspondence letters. However, a presumption of regularity is applied to all manner of VA processes and procedures. Miley v. Principi, 366 F.3d 1343, 1346-47 (Fed. Cir. 2004) (“The presumption of regularity provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties.”); Rizzo v. Shinseki, 580 F.3d 1288, 1292 (Fed. Cir. 2008) (applying the presumption of regularity to VA examination). Clear evidence is required to rebut the presumption of regularity. Miley, 366 F.3d at 1347. In this case, to the extent that the allegations relate to the proper conduct of a medical examination (length of time spent), the examiner has some discretion in the manner it is conducted. Also, contrary to the Appellant’s contention, the examiner did indicate that the Appellant has an abnormal ROM of both knees, but just concluded that his loss of ROM does not contribute to a functional loss (even after acknowledging the Appellant’s report of pain). Accordingly, as there is not “clear evidence” of irregularity and the examination was done in accordance with VA’s usual practice, the Board finds that the presumption of regularity has not been rebutted. Thus, the Board finds that there is no duty to provide another VA examination or medical opinion. The Board also recognizes the Appellant’s contention included in his May 2016 VA Form 9 that not all his military treatment records were considered in adjudicating his claims. However, as all available records have subsequently been obtained and have been considered thereafter, the Board finds no pending duty to assist issues. In deciding a claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, 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 favorable to the claimant. See 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. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Appellant’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Appellant to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Service Connection As a threshold matter, the type of military service a claimant had governs his or her eligibility for service connection for a given disability. Relevant to this case, there is a difference between “active duty,” which includes full-time duty in the Armed Forces, other than active duty for training,” and “active duty for training” (ACDUTRA), which includes “full-time duty in the Armed Forces performed by Reserves for training purposes.” 38 U.S.C. § 101 (21), (22). Here, the Appellant claims that he incurred injuries while on ACDUTRA in 2006, and his DD Form 214 makes it clear that he was on ACDUTRA from April 2006 to September 2006 (see also Army National Guard Retirement Points History Statement, March 2006 to April 2006 and April 2006 to September 2006 associated with “AD pts” (which notes points earned by performing active duty, active duty for special work (ADSW), ACDUTRA, or annual training (AT)). As set forth below, this distinction governs the circumstances under which the Appellant may be eligible for service connection. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). However, when a claim for service connection is based on a period of ACDUTRA, there must be evidence that the claimant became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. See, generally, 38 U.S.C. §§ 101 (2), (22), (24), 1110; 38 C.F.R. § 3.6 (c); Smith v. Shinseki, 24 Vet. App. 40, 44 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). A claimant whose claim is based on a period of ACDUTRA is not entitled to the presumption of service connection for those “chronic diseases” listed in 38 C.F.R. § 3.309(a)—i.e. degenerative joint disease—that manifest to a compensable degree within the presumptive period after service, or through a continuity of symptomatology since service. See Smith, supra; Acciola, supra. Additionally, when a claim for service connection is based on a period of INACDUTRA, there must be evidence that the claimant became disabled (or died) from an injury incurred or aggravated in the line of duty, or from acute myocardial infarction, cardiac arrest, or cerebrovascular accident. 38 U.S.C. § 101 (24)(C). Unless and until Veteran status is established for any period of ACDUTRA or INACDUTRA, the presumptions of soundness and aggravation under 38 U.S.C. §§ 1111, 1153, and the presumptions of service connection accorded certain diseases under the pertinent sections of the statute and regulations do not apply. See Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that presumptions of service connection and the presumptions of soundness and aggravation cannot apply to appellants whose claims are based only on a period of active duty for training); Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (holding that the presumption of aggravation does not apply to periods of ACDUTRA); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established Veteran status). The Appellant contends that he incurred bilateral leg and bilateral knee disabilities (characterized as stress fractures) during his active service with the Florida Army National Guard. Specifically, he testified that he was injured during basic training in spring of 2006 after overexerting himself while carrying a very heavy pack and marching after a lengthy period of inactivity. He described an incident as twisting his ankle and injuring his legs after stepping into a pothole, after which he sought treatment at sick call multiple times and underwent diagnostic tests at an Army medical facility at Fort Knox, Kentucky. Initially, as the record contains no competent evidence indicating the claimed conditions pre-existed his period of ACDUTRA, a theory of entitlement to service connection based on aggravation is not viable. Moreover, although he had a subsequent INACUDTRA period with the Florida Army National Guard, neither the Appellant nor the evidence in the record suggests that any of the conditions for which he seeks service connection resulted from an injury incurred or aggravated in line of duty while performing INACUDTRA, or are due to an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. In fact, as discussed above, he only claims that these conditions resulted from disease or injury incurred while performing ACDUTRA. Thus, the question at issue is whether the Appellant’s claims conditions were incurred in the line of duty during his period of ACDUTRA. Turning to the medical evidence of record during his ACDUTRA period, his March 2006 enlistment examination shows all normal clinical condition, to include musculoskeletal system, and he specifically denied any impaired use of legs or feet, painful joints, knee trouble, arthritis, knee or foot surgery, but only reported broken right ankle during that time. The Appellant again denied any swollen/painful/dislocated joint or pain/swelling at the site of an old fracture during a March 2006 medical prescreening. In May 2006, he sought treatment for a two-week-old ankle injury, but he also reported bilateral knee pain at the time. Although multiple attempts have been made to obtain additional relevant service records not of record, to include a “profile” for these injuries, as well as x-rays and bone scans that the Appellant testified to have undergone in 2006, all available records have been obtained and do not include such records. Recently, the Board remanded twice, in part, for obtaining a VA examination and medical opinion to ascertain the Appellant’s current bilateral lower extremity disabilities and to determine whether any identified, current disability of either lower extremity was incurred in the line of duty. There are two examinations/opinions obtained as a result: January 2020 and October 2020. With regards to his bilateral knee condition, the Appellant reported its onset as 2006 and was diagnosed with bilateral patellofemoral degenerative joint disease. [Although no formal diagnosis was provided for his bilateral legs, as will be discussed further below, the examiner referenced the Appellant’s treatment records showing sciatic condition of the bilateral lower extremities (implicitly seeming to suggest he has a sciatic condition for his legs), which the examiner seems to be suggesting are caused by his non-service connected back disability]. After reviewing all pertinent records, the examiner concluded that his bilateral knee and bilateral legs conditions were not incurred in the line of duty. In doing so, the examiner pointed out that there is only one piece of evidence during his ACDUTRA showing bilateral knee pain (May 2006) and none relating to his bilateral leg injury/alleged fracture. The examiner also stated that there was lack of chronicity of care or evidence of continuous treatment (“did not find anything since 1995 up to 2020 for any knee/leg pain”), emphasizing a long gap between the time he separated and the time the Appellant first reported and sought treatment for his leg/knee pain. There is no contrary medical opinion in the claims file. The Board acknowledges a discrepancy between the year that the examiner indicated as the Appellant first having reported and sought treatment for his bilateral legs and knees condition post-service —2020, as opposed to 2018 (see i.e., October 2018 private treatment records, reporting joint pain/swelling, difficulty bending knees, and bilateral leg pain along with back pain). However, the Board notes that this discrepancy neither has any bearing on, nor negates, the final opinion as a whole—i.e. lack of chronicity of care. In other words, this discrepancy does not change the fact that it was not until many years post-separation that he first sought care for and reported bilateral knee/leg problems and this is supported by his post-service treatment records. There is not only a lack of chronicity of care, but also no persuasive evidence the Appellant continued to have leg/knee symptoms after his ACUDTRA period, based on 2008 medical records from his subsequent INACUDTRA service showing his musculoskeletal system and extremities were normal and a medical record from 2016 wherein he complained of back pain but denied a prior history of any other chronic problems and did not report anything like a history of stress fractures or knee symptoms. Thus, the Board still finds its rationale provided in support of the medical conclusions still adequate, and assigns some probative value to these 2020 medical opinions. As for any other either bilateral extremity disabilities, the VA examiner concluded that there is none, even after listing in the Evidence Section evidence of bilateral extremity disabilities (“low back pain with radiation down the leg,” “patient with radiating pain with positive sciatic nerve pain”). It appears that these referenced bilateral extremity sciatic disabilities are also all related to his non-service connected back condition. Thus, these cannot be warranted service connection. In addition, the evidence shows that following his service with the Florida Army National Guard the Appellant had additional inactive service with the North Carolina Air National Guard. However, other than for a period when he was ordered to active duty, the Appellant is not eligible for VA disability benefits for his periods of National Guard service based on being ordered into Federal service by the President of the United States under 10 U.S.C. § 12401, performing “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, or being ordered to ACDUTRA under 10 U.S.C. § 12301 (d), as none of these scenarios is applicable. [Moreover, even considering the alleged training period during his service with the North Carolina Air National Guard (although the exact period as to that alleged training is uncertain), the Appellant testified that he does not recall ever going to any of the military providers for any of his legs/knees/stress fracture and further stated that he was able to continue running and continue his physical duties as his duties were “more laid back.” See Board hearing testimony. Furthermore, his treatment records from his service period with the North Carolina Air National Guard show only normal movement of all extremities/musculoskeletal systems. See August 2008 medical records. The Board also points out his Board hearing testimony that he did not go through any annual PT tests or assessments during his time there as the one from Army were still valid]. Thus, the Board concludes that the Appellant’s bilateral knees and legs condition were not incurred in his period of ACDUTRA. The Board emphasizes the more restrictive requirements applicable to periods of ACDUTRA and INACDUTRA as compared to active duty service. The law applicable to active duty service establishes “veteran” status without further requirements. Moreover, it permits a grant of service connection simply by evidence establishing an etiological relationship between an injury or disease in service and a post-service disability. The law pertaining to periods of ACDUTRA and INACDUTRA requires that the claimant have become disabled “during” the period of ACUDTRA or INACDUTRA in which the injury or disease occurred, and specifically requires that the disease and/or injury have been incurred in the line of duty. Moreover, the claimant bears the burden of establishing that this sequence of events has occurred before “veteran” status is granted. 38 U.S.C. § 101 (24). While the Appellant believes his bilateral knee and leg disabilities had onset during service or is related to the in-service injury, he has not been shown to have the requisite medical knowledge or expertise to be deemed competent to provide a nexus opinion in this case. This issue is medically complex, as it requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. The Appellant’s service connection claims are denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine and finds it inapplicable because the preponderance of the evidence is against the claims. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.