Citation Nr: 21027435 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 15-07 309 DATE: May 5, 2021 ORDER Entitlement to service connection for a right knee condition is granted. Entitlement to an earlier effective date of August 1, 2007 for service connection for a lumbar back strain is granted. REMANDED Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for Raynaud's disease is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. FINDINGS OF FACT 1. The Veteran's right knee strain is proximately related to injury in service. 2. A May 2002 rating decision denied service connection for back strain; the Veteran did not timely disagree with that decision or submit new and material evidence within the following year, and it became final. 3. The Veteran filed a claim to reopen the claim for service connection for a back disability on August 1, 2007. In response to an August 2008 rating decision, she filed an August 2008 notice of disagreement, after which an SOC was not issued. She then continuously prosecuted that claim until it was ultimately granted in March 2013. CONCLUSIONS OF LAW 1. The criteria for service connection for right knee strain have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. An effective date for the grant of service connection for a lumbar back strain of August 1, 2007 is warranted. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1996 to January 1999. She also served in the National Guard and Reserves from February 1999 to October 2004, August 2010 to January 2011, with additional periods in the Reserves. Additionally, the record indicates the Veteran served active duty for special work (ADSW). This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2013, October 2014, and December 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In September 2019, the Board remanded this appeal for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. 1. Entitlement to service connection for a right knee condition 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. "Active military, naval, or air service" includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. See 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477 78 (1991). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101 (24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. The Veteran's service personnel records include orders that establish she was on ADSW for various dates between April 2004 and September 2004. The VA Adjudication Procedure Manual, (VBA Manual M21-1MR) states that the term Active Duty Special Work (ADSW) (now described as Active Duty Support (ADS)), applies to those who are ordered to full-time but temporary duty for operational or support purposes for the Reserve or National Guard. The period of service can vary but is generally less than 180 days. A DD Form 214 is not usually issued for ADS periods less than 180 days. M21-1MR, Part III, Subpart ii.6.A.2.c. ADS for periods of less than 180 days is a type of ADT. If the period of ADS equals or exceeds 180 days, it is considered active duty. ADS periods of less than 180 days are generally recorded on an official order document in the service personnel records. A DD Form 214 is not routinely issued for ADS periods of 180 days or less. Exception: All periods of ADS for the Reserves for operational support are considered active service regardless of length of service. M21-1MR, Part III, Subpart ii.6.A.2.d. Duties performed under ADSW may be for operational, support, or training purposes. The Department of Defense (DoD) defines ADSW as a tour of active duty to fulfill support requirements. VA characterizes ADSW as active duty for the purpose of this topic unless the purpose for going on ADSW was to receive training. M21-1MR, Part III.v.4.C.4.c. If the duties a Veteran performed during ADSW cannot be ascertained, treat the period of service as active duty. Id. The Veteran's personnel records contain documentation of the Veteran's orders to ADSW between April 2004 and September 2004 noted to be for the purpose of recruiting support at times. Given that the Veteran's period of ADSW involved performing recruiting support, rather than training, the Board finds that the Veteran's service between April 2004 and September 2004 may be characterized as active duty. 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). The Veteran contends that she is entitled to service connection for her right knee disability. The December 2020 VA examination report indicates that the Veteran has a current a disability of right knee strain. The Board concludes that the Veteran's right knee strain is proximately due to injury in service and that service connection is therefore warranted. A review of the medical records shows the Veteran has consistently complained of knee pain during and since service. The Board hearing transcript reflects the Veteran's complaints of knee pain from standing on her feet as a cook in the military. Further, she was diagnosed with patellofemoral syndrome in October 2003, an April 2012 magnetic resonance imaging (MRI) report showed the Veteran has mild patella chondromalacia of the right knee, a May 2012 military functional capacity form shows she injured her right knee during physical training, and she was placed on a limited physical profile in May 2012 and January 2014 due, in part, to her right knee condition. Pursuant to the Board's September 2019 remand, the Veteran was afforded a VA examination in December 2020 to assess the nature and etiology of the claimed right knee disability. The December 2020 VA opinion found that the Veteran's right knee condition was at least as likely as not incurred in or caused by service. The examiner noted that the Veteran consistently complained of and was treated for knee pain while in the National Guard and that the knee condition progressed and persisted over time because it never fully healed from the initial insult. According to a January 2021 addendum, the examiner noted that the Veteran complained of knee pain and was diagnosed with patellofemoral syndrome in October 2003 and right knee Osgood Schlatter's syndrome in April 2004. The examiner also remarked on the Veteran's 2012 knee findings including injury during physical training. At the outset, the Board finds the VA opinions adequate for appellate review. There is no evidence that the provider was not competent or credible, and as the opinions are based on the Veteran's statements, in-person examination and the examiner's observations, the Board finds it is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). The Board therefore finds that the competent evidence of record indicates that the Veteran has right knee strain incurred in or aggravated by service. As noted above, the Veteran has a current disability of right knee strain. Personnel records reflect that the Veteran had inactive duty for training, and well as active duty/active duty for training/active duty for special work in 2003 and 2004. The only opinions of record providing an analysis of the etiology of the Veteran's right knee disability are the December 2020 and January 2021 VA opinions. As discussed above, the opinions found that the right knee disability was incurred in or caused by the Veteran's service. The opinions stand uncontradicted by any other competent evidence of record. Service connection is therefore warranted. 38 C.F.R. § 3.303(a). 2. Entitlement to an earlier effective date for service connection for a lumbar back strain Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. If a claim is received within one year following separation the effective date of an award of compensation shall be the day following separation from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400(b)(2). For reopened claims, an earlier effective date is assigned the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (r). Once a decision has been made on a claim, a claimant and his representative will be notified in writing of any decision affecting the payment of benefits or granting relief. An appeal consists of a timely filed notice of disagreement (NOD) in writing and, after a statement of the case (SOC) has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. Initially, the Board notes that it has reviewed all of the evidence in the Veteran's record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Here, the Veteran filed a claim for a back disability in December 2000, and it was denied in a May 2002 rating decision. The decision became final because the Veteran did not initiate an appeal or submit new and material evidence within one year of the determination. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.1103. In August 2007, the Veteran filed a new claim for service connection for a back disability. An August 2008 rating decision declined to reopen the claim for back strain. In August 2008, the Veteran submitted a statement that she wanted to appeal the August 2008 decision. The Board finds this constituted a proper NOD under the regulations at the time. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002). There is no evidence that the RO ever issued an SOC with regard to the claimed back disability, which means that the original August 2007 claim remained pending until ultimately addressed in the context of the eventual grant of service connection in the March 2013 rating decision now on appeal. See 38 C.F.R. §§ 3.103(f), 19.26 (an SOC will be prepared following an NOD); Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Accordingly, the appeal for an earlier effective date for the award of service connection for lumbar back strain is granted from August 1, 2007, the date VA received the Veteran's claim to reopen. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. This is the earliest possible effective date assignable under the circumstances of this case, as the date is the latest of the date of claim or date entitlement arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). In the January 2021 rating decision, the RO addressed the issue of CUE regarding the denial of service connection for back strain in the May 2002 decision, finding that CUE was not identified. The Veteran has not appealed that rating decision; and the CUE claim is not before the Board. REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a left shoulder disability is remanded. 3. Entitlement to service connection for fibromyalgia is remanded. The record reflects that the nature of the Veteran's periods of service while in the Reserves and National Guard, to include active duty for special work (ADSW), that have not yet been verified by the AOJ. It is incumbent on VA to ensure that it has a complete record of these periods to determine whether the Veteran's claimed disabilities resulted from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. On remand, the RO should thus make appropriate efforts to identify all periods of ACDUTRA and INACDUTRA and to obtain any outstanding service department records from those periods. 38 C.F.R. § 3.159 (c)(1)-(2). Therefore, a remand of the Veteran's remaining claims is necessary for the AOJ to take all necessary steps to verify all periods of ACDUTRA, INACDUTRA, and/or ADSW with the Reserves and National Guard, as well as obtain any outstanding service treatment records for these periods. Regarding the claimed fibromyalgia, the Veteran was afforded a VA examination in December 2020 at which time the diagnosis was confirmed. The VA examiner opined that the Veteran's fibromyalgia was not related to military service because a diagnosis of fibromyalgia was not shown in the service treatment records. However, the examiner did not explain whether any of the symptoms of pain shown during service, were related to the Veteran's current myalgia. Indeed, the opinion relied essentially on the absence of documented in-service complaints and findings to support the negative conclusion reached, and does not reflect any meaningful consideration of the documented in-service findings of pain or the Veteran's complaints of pain in and since service in formulating the medical opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). Therefore, the Board finds the nexus opinion is incomplete and that a remand is necessary for an addendum opinion addressing whether the Veteran's in-service complaints and treatment of pain is related to the Veteran's current fibromyalgia. 4. Entitlement to service connection for Raynaud's disease is remanded. The Veteran was afforded a VA examination in December 2020 wherein the VA examiner found that the Veteran did not have a current diagnosis of Raynaud's disease. However, the evidence shows that a current diagnosis was demonstrated during the pendency of the appeal. In a December 2012 private treatment report, the Veteran was noted to have clinical Raynaud's disease. Although the VA examiner provided a negative etiology opinion, it's unclear whether the Veteran's December 2012 diagnosis was considered. Further, it appears the examiner relied on absence of documented findings of Raynaud's disease in-service does not reflect any meaningful consideration of the Veteran's complaints any related symptomatology in and since service in formulating the medical opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007). The December 2020 VA examiner's opinion is inadequate to adjudicate the claim as the VA examiner failed to consider the Raynaud's disease diagnosis that is documented during the appeal period. Therefore, this issue must be remanded for adequate VA medical opinion. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following actions: 1. Take all necessary steps to verify all periods of ACDUTRA, INACDUTRA, and ADSW for the Veteran with the Reserves and National Guard, but of note for the periods from 2002 to 2004 and from 2011 to 2014, to include obtaining military personnel records from the appropriate sources. Reserve retirement point sheets are not adequate for this purpose; rather, the specific dates of the Veteran's ACDUTRA, INACDUTRA, and/or ADSW service are required. 2. Upon verification of any additional periods of service, obtain outstanding service treatment records for the Veteran's periods of ACDUTRA, INACDUTRA, and/or ADSW. 3. Thereafter, submit the claims file to the December 2020 VA examiner-or, if that examiner is unavailable, to an equally qualified examiner-in order to obtain an addendum opinion regarding whether the Veteran's right and left shoulder disability and/or fibromyalgia are related to military service. The examiner should opine whether any current right and left shoulder disability and fibromyalgia (even if now resolved), at least as likely as not (50 percent or greater probability) began in or is otherwise related to the Veteran's service. This also includes an opinion on whether the disabilities resulted from (1) a disease or injury incurred or aggravated during ACDUTRA, or (2) from an injury incurred or aggravated during INACDUTRA. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. In rendering the opinions, the examiner should consider the statements of the Veteran regarding her pain in and since service. 4. Obtain an addendum opinion regarding the Veteran's claimed Raynaud's disease from the December 2020 VA examiner-or, if that examiner is unavailable, an equally qualified examiner. If necessary, a physical examination of the Veteran should be scheduled. The examiner is asked to review the record and provide an opinion and rationale as to the following: The examiner should opine whether any Raynaud's disease diagnosed during the pendency of this appeal (even if now resolved), at least as likely as not (50 percent or greater probability) began in or is otherwise related to the Veteran's service. This also includes an opinion on whether the disabilities resulted from (1) a disease or injury incurred or aggravated during ACDUTRA, or (2) from an injury incurred or aggravated during INACDUTRA. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. In providing the opinion, the examiner must discuss the December 2012 private diagnoses of Raynaud's disease as well as statements of the Veteran regarding any symptoms in and since service. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Williams, 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.