Citation Nr: 21028329 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-26 857 DATE: May 11, 2021 ORDER Entitlement to service connection for left knee medial meniscal tear, status post meniscectomy is granted. FINDING OF FACT Resolving all doubts in favor of the Veteran, he sustained a left knee injury during a period of inactive duty training (INACDUTRA) in 1999 which was diagnosed as a meniscal tear in 2000; a second injury left knee injury occurred during active duty training (ACDUTRA) in 2005 which required arthroscopic surgery. CONCLUSION OF LAW The criteria for service connection of a left knee medial meniscal tear, status post meniscectomy have been met. 38 U.S.C. §§ 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active duty service in the United States Army Reserves from August 1983 to December 1983; February 2003 through May 2003, and January 2004 through October 2005 with additional INACDUTRA in the Army National Guard and Army Reserves from 1983 to 2013. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in an April 2021 videoconference hearing. A copy of the transcript will be incorporated with the electronic record. Service Connection Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 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 from a disease or injury incurred in line of duty. 38 U.S.C.A. § 101(21)(24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Only chronic diseases listed under 38 C.F.R. § 3.309(a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Therefore, the presumption of soundness, 38 U.S.C. §§ 1111 and 1131, the presumption of aggravation of a chronic pre-existing disease, 3.306; and the presumption of service incurrence for enumerated conditions including arthritis, 38 C.F.R. §§ 3.307 and 3.309, are not applicable for periods of ACDUTRA or INACDUTRA. In rendering a decision on appeal 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990). Competency of evidence is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination of the probative value of the evidence once the evidence has been assessed as competent. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Entitlement to service connection for left knee medial meniscal tear, status post meniscectomy The Veteran contends that his left knee condition had its onset in, was aggravated by or is otherwise related to service. After review of the evidence, the Board agrees. The evidence of record reflects that the Veteran had periods of continuous INACDUTRA beginning in February 1983 to April 1989 in the Army Reserves, from April 1989 to September 2000 with the Army National Guard, followed by resumption of Army Reserve INACDUTRA in October 2000 through July 2013. The Veteran testified during his Board hearing that he sustained a left knee injury in service in 1999 that gradually worsened. A meniscal tear of the left knee was discovered during his annual Army Reserve physical. In July 2001 a permanent physical profile for meniscal tear of the left knee was signed by a military physician and approved by Colonel J. B. Following his permanent profile, the Veteran had periods of ACDUTRA from February 2003 to May 2003 and from January 2004 to October 2005. During these periods the Veteran was deployed with Operation Noble Eagle to perform training of mobilized units in convoy tactics for missions in Iraq and Afghanistan at Fort McCoy, Wisconsin. In June 2005 the Veteran underwent Medical Resonance Imaging (MRI) scan of the left knee for pain and suspected torn lateral meniscus. The findings were tri-compartment osteoarthritis and frayed/torn posterior horn of the medial meniscus and small tear of the lateral meniscus. On September 1, 2005, military physician Dr. J.D. prepared a Statement of Medical Examination and Duty Status that was signed by Lt. Colonel J.M.O., Unit Commander. The statement confirmed that the Veteran was on active duty and included the medical opinion of Dr. J.D. that the Veteran sustained an injury that was incurred in the line of duty and was likely to result in a claim against the government for future medical care. Details of the accident indicate that the Veteran tore the lateral meniscus in addition to a torn/frayed medial meniscus of the left knee. The Installation Adjutant reviewed the Statement for completeness and by authority of the Secretary of the Army indicated that the Veteran had sustained a line of duty injury. The Veteran was referred to a private physician who performed arthroscopy on his left knee in October 2005. In May 2017 the Veteran underwent a VA disability examination for knee conditions. The examiner noted a left knee medial meniscal tear of the posterior horn status post meniscectomy diagnosed in 2005. The Veteran advised the examiner that he developed pain in his left knee from running and jumping as well as a slip from a truck while on active duty. He subsequently underwent arthroscopy with a civilian physician but was unable to run after the procedure. The Veteran has worked in construction and owns an investment firm. His functional limitation was an inability to run. Upon examination, the right knee had normal range of motion upon initial and repetitive use testing without pain or tenderness. The left knee had normal range of motion without pain or tenderness. There was no evidence of instability or subluxation. The examiner was unable to provide an opinion as to whether pain or other factors would significantly limit functional ability with repeated use over time. or during flare-ups. Degenerative arthritis was present in the left knee but not documented for the right knee. The examining physician concluded that there was no objective evidence or residual functional limitation and that the Veterans condition was less likely than not related to a line of duty injury in 2005. The examiner concluded that the Veteran's osteoarthritis pre-existed 2005 as documented on previous x-rays. An addendum to the medical opinion based upon an evidence review was provided by a VA examiner in May 2019. The examiner reviewed additional information including an April 2004 order for an x-ray, a June 2005 army hospital note, and a June 2005 left knee x-ray. The April 2004 order for x-ray of the left knee stated "51-year-old activated reservist sustained a left knee injury a week before when the knee was hit with a weapon system. Ecchymosis and swelling noted on PE [physical exam]." The Ireland Army Community Hospital note indicated that the Veteran had a history of a left knee meniscal tear seen on MRI from 2000. The June 2005 x-ray showed minimal osteoarthritis. The VA examiner commented that there were no details of the trauma to the left knee that could cause both lateral and medial meniscus tears. Since osteoarthritis takes many months to years to develop, therefore the osteoarthritis noted on April 2004 was not consistent with an injury from a week before. The examiner confirmed that the Veteran's left knee disability was less likely than not related to service as meniscal tears without a history of prior joint injury are most likely degenerative in nature. During his Board testimony the Veteran indicated that his symptomology worsened over time requiring him to undergo a total knee replacement in May 2019. The first element required for service connection, a current disability, is satisfied by the Veteran's total knee replacement and findings during VA examinations. In August 2019, the Veteran underwent a second VA disability examination for knee conditions. The Veteran gave a history of being a rail car inspector in civilian with and steel sales before and after his periods of active duty. Upon examination the Veteran had full range of motion of the right knee without pain or functional loss on initial or repetitive use testing. The left knee demonstrated pain on palpation with flexion decreased to 110 degrees on initial range of motion testing with objective evidence of pain with weight bearing. The examiner concluded that it was less likely than not that the Veteran's left knee condition was caused by or result of or the left knee surgery in 2005 during service, because the findings on MRI prior to surgery were "all consistent with advanced osteoarthritis, a result of pre 3rd AD [active duty] period meniscal injury, which led to surgery in 2005." No ankylosis, deformity, malalignment, drainage, tenderness, edema, redness, heat, spasms, abnormal movement, guarding of movement, fatigue, lack of endurance, weakness, atrophy, incoordination, instability, subluxation or scarring that was over 6 square inches or was painful or unstable, was noted. The examiner declined to evaluate additional loss of motion or function based upon repetitive use or flare-ups. There was no pain with non-weight-bearing and evaluation of pain with passive range of motion was not performed due to risk of injury. Affording the Veteran the benefit of the doubt, given the competent, consistent, and credible statements of the Veteran regarding a left knee injury during INACDUTRA in 1999 that was diagnosed as a meniscal tear in 2001, the Board finds that there is an in service injury that confers veteran status. There is no evidence that disputes the Veteran's claim of left knee injury during INACDURA in 1999. In addition to the first in service injury in 1999, the evidence of a second in service injury and aggravation of the chronic left knee disability during ACDUTRA in 2005 is well-documented--medically by a military physician's referral to a private physician for arthroscopy in 2005 and by military officials' statements confirming a line of duty injury to the left knee. The remaining issue for establishing entitlement to service connection is whether the Veteran's current left knee disability is related to an injury or aggravation during INACDUTRA or ACDUTRA. There are conflicting opinions on this issue between the military treating physician and installation officials and the VA examiners. A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or from lay reports of injury, symptoms and/or treatment, including by a veteran. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner's opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The military physician who examined and treated the Veteran in 2005 documented a line of duty, or service injury. Years later, the 2017, May 2019 and August 2019 VA examiners gave opinions indicating a lack of nexus between the current left knee disability and an in-service injury in 2005 stating that the pre-existing advanced osteoarthritis on the 2005 x-ray was the cause of the Veteran's meniscal tear. The examiners did not address the Veteran's lay statement regarding a 1999 in service left knee injury and MRI findings in 2001 of a left knee meniscal tear; the 2005 military treating physician's unequivocal opinion of a service related injury with concurring signature by the unit commander; or whether a 2005 injury aggravated the pre-existing 1999 injury. Even more important, these examiners based their opinions on the Veteran's "advanced" osteoarthritis in 2005 contrary to 2005 x-ray findings of "minimal" osteoarthritis. Accordingly, the VA examiner opinions are of minimal, if any, probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning), see also Harris, 203 F.3d at 1351. (Continued on the next page) The Board further finds that the evidence is at least in equipoise as to whether the Veteran's current left knee disability is related to the in service left knee injury or aggravation of the left knee injury in 2005. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for left knee medial meniscal tear status post meniscectomy is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Adams Hill, 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.