Citation Nr: 21030064 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-06 532 DATE: May 17, 2021 ORDER Service connection a right knee disorder is denied. FINDINGS OF FACT 1. The Veteran had active duty from January 1975 to January 1976, with periods of active duty for training (ACDUTRA) until 2003. 2. A right knee disorder did not occur during a period of active duty, or during a period of active duty training (ACDUTRA) or inactive duty training (INACDUTRA). CONCLUSION OF LAW A right knee disorder was not incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.309, 3.310 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION In January 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In January 2021, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). 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). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. Only "veterans" are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a "veteran" a claimant must serve on active duty, serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA, or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service on active duty alone is sufficient to meet the statutory definition of veteran; however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. These evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Board did not err in not applying presumptions of sound condition and aggravation to claim where appellant served only on ACDUTRA and had not established any service-connected disabilities from that period). However, for those who have achieved "veteran" status through a prior period of service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith, 24 Vet. App. at 40. The Veteran seeks service connection for a right knee disorder. He asserts that he initially injured his right knee when he stepped into hole during a training exercise at Fort Leonard Wood in 1999. As an initial matter, the Veteran has been diagnosed with a right knee disability. Specifically, an August 2015 VA examiner diagnosed right knee strain and right knee joint osteoarthritis. Therefore, a current diagnosis has been shown and the first element of service connection has been met. As to an in-service incurrence, the military personnel records establish that the Veteran had active service between January 1975 and January 1976 with periods of ACDUTRA until March 2003. The service treatment records (STRs) from his active duty from are unavailable for review; however, he does not claim, and the record does not reflect that his right knee injury occurred during a period of active duty. Rather, the record reflects that the Veteran had service in the Army Reserve until March 2003. A December 1979 Report of Medical Examination conducted at enlistment into the Army Reserve shows that clinical evaluation of the lower extremities was normal. A June 1999 physical profile for a right knee meniscus tear restricted the Veteran from running and heavy lifting; however, there is no line of duty determination that showed that the right knee disorder was incurred during ACDUTRA. As such, despite the June 1999 physical profile for a right knee meniscal tear, the evidence as a whole does not indicate that he was diagnosed with a right knee disorder during a period of duty service. Moreover, personnel records do not establish that the injury occurred during a period of ACDUTRA or INACDUTRA. To that end, the right knee injury took place in June 1999. A subsequent January 2003 pre-deployment health assessment for the Army Reserve does not contain a notation for a right knee disorder. The record fails to otherwise document that a right knee disorder occurred during either active duty or a period of ACDUTRA or INACDUTRA. Accordingly, the second element of service connection an in-service incurrence has not been met and the medical evidence does not support service connection for a right knee disorder. Even assuming that a right knee injury was incurred during a period of duty status, the medical evidence does not support a nexus between a right knee disorder and service. In an August 2015 VA examination undertaken as part of the claim, the Veteran reported that his right knee disorder began when he hurt his knee in training exercises while on duty. The examiner diagnosed right knee strain and right knee joint osteoarthritis. The examiner found that the right knee disorder was less likely as not incurred in or caused by the claimed in-service injury, event or illness as described by the Veteran. The examiner indicated that there was no was evidence in the medical records provided of the Veteran being evaluated for a right knee disorder during service. The examiner noted that a right knee condition was not noted on the Veteran's June 1997 "Over 40" Report of Medical Examination. As the examiner did not address the June 1999 physical profile for a right knee meniscus tear, the Board remanded the issue for another examination which was undertaken in February 2021. The February 2021 examiner diagnosed with right knee strain and right knee meniscal tear. The examiner opined that the Veteran had a 50 percent or more probability of having a right knee injury that was related to service in 1999. He based his opinion upon proof that the Veteran did have a right knee injury in the line of duty. However, the Board places less probative weight on this opinion as it was based on facts not supported by the record. The examiner based his opinion on evidence of a line of duty determination that showed a finding of a right knee disorder during ACDUTRA but this is not the case. As the examiner's opinion was based, at least in part, on an inaccurate factual basis, the Board places less probative value on the opinion. Next, the Board has considered lay statements submitted by the Veteran in support of his claim. G.C. and R.R., observed that the Veteran fell and injured his knee while in the field conducting land navigation training at Fort Leonard Wood. The Veteran testified at the Board hearing that he stepped in a hole and injured his knee during land navigation training at Fort Leonard Wood. The Board has considered these lay statements, as well as the Veteran's lay statements and sworn testimony, that his disorder occurred during service or during periods of ACDUTRA or INACDUTRA. Lay persons are competent to report their observations and the Veteran is competent to report his symptoms because this requires only personal knowledge as it comes to them through their senses. However, neither he nor his lay witnesses are competent to offer an opinion as to the etiology of his current right knee disorders due to the medical complexity of the matters involved. Further, the threshold issue is whether the Veteran was in duty status at the time of the injury and the evidence does not support that he was. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.