Citation Nr: 21032266 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-16 396 DATE: May 26, 2021 ORDER Entitlement to service connection for a left knee disability is granted. Entitlement to service connection for a right knee disability is granted. FINDINGS OF FACT 1. The Veteran's left knee disability is etiologically related to an injury during active duty for training. 2. The Veteran's right knee disability is etiologically related to an injury during inactive duty for training. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left knee disability have been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. 2. The criteria to establish service connection for a right knee disability have been met. 38 U.S.C. §§ 101(24), 1110, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from June 1983 to August 1983 and June 1984 to September 1984. She also served on inactive duty for training (INACDUTRA) for a few days in April 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran service connection for a bilateral knee disability. A Board hearing was held in October 2020. A transcript is of record. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. The Board notes that the Veteran has not served on active duty. However, she has severed in periods of ACDUTRA and INACDUTRA. This distinction is potentially outcome determinative as it relates to service connection. The term "active military, naval, or air service" includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in the line of duty. 38 C.F.R. § 3.6(a) (emphasis added). In addition, the term "active military, naval, or air service" includes any period of INACDUTRA during which the individual concerned was disabled from an injury incurred in line of duty. 38 C.F.R. § 3.6(a) (emphasis added). Therefore, the Veteran would only be entitled to service connection for an injury or disease incurred or aggravated during her ACDUTRA periods or an injury incurred or aggravated during her INACDUTRA period. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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 or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). As to a current disability, the Federal Circuit held that pain alone can constitute a disability if it causes functional impairment. Saunders v. Wilkie, 886 F.3d 1356, 1365-68 (Fed. Cir. 2018). The Federal Circuit explained that to establish a disability, "the [V]eteran will need to show that [her] pain reaches the level of a functional impairment of earning capacity." Id. at 1367-68. In determining whether symptoms cause functional impairment in earning capacity, the VA's rating schedule may provide guidance but there must be competent evidence to show that an impairment rises to a level that affects earning capacity. See Wait v. Wilkie, 33 Vet. App. 8 (2020). 1. Entitlement to service connection for a left knee disability is granted. The Board finds that the Veteran has a current disability in her left knee, which started from an injury during ACDUTRA and has continued since. As to a current disability, the Veteran was afforded a VA examination in October 2017. The examiner determined that the Veteran did not have a diagnosed disability related to her left knee. See October 2017 VA examination report. However, the Veteran states that her left knee has manifested constant, chronic pain. See Board hearing Tr. at 2-4. She explained that her pain can flare and cause difficulty with walking and instability. Id. at 6, 11. The Board notes that objective medical evidence of knee instability is not required, and objective medical evidence is not categorically more probative than lay evidence. English v. Wilkie, 30 Vet. App. 347 (2018). Indeed, the Veteran is competent to report pain and instability. See Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, her reports have been consistent throughout the record and are based on an intimate knowledge of her history. The Board finds the Veteran's statements more probative than the October 2017 VA examination report. Thus, the Veteran's left knee is manifested by pain, difficulty walking, and instability. Therefore, the Veteran has a current disability and the first Shedden element is met. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8 (2020); see ex. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran contends that her disability was the result of two injuries during ACDUTRA. See Board hearing Tr. at 2. Indeed, service treatment records show that the Veteran injured her left knee on two separate occasions during each period of ACDUTRA. See STRs. Both injuries were deemed to have occurred in line of duty. Id. Thus, the second Shedden element is met. She has explained that her disability has continued since those injuries in ACDUTRA. See Board hearing Tr. at 4. The record notes increased pain, decreased range of motion, tenderness, and swelling at the time of injury. See STR. In a February 1985 report of medical history, the Veteran endorsed instability in her left knee, which the clinician described as a torn meniscus. Id. The Veteran has competently and credibly described her symptoms at the time of onset to the present. The record supports that her left knee showed functional impairment at the time of injury, at least a year thereafter, and presently. Thus, the Board finds the Veteran probative and her left knee disability started in ACDUTRA and has continued to the present. Therefore, the third Shedden element is met. Accordingly, the Board finds that the Veteran's left knee disability is etiologically related to her ACDUTRA. Therefore, the criteria for service connection for the Veteran's left knee disability have been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). 2. Entitlement to service connection for a right knee disability is granted. Similarly, the Board finds that the Veteran has a current disability in her right knee, which started from an injury during INACDUTRA and has continued since. As to a current disability, the Veteran was afforded a VA examination in October 2017. The examiner determined that the Veteran did not have a diagnosed disability related to her right knee but did present with reduced range of motion. See October 2017 VA examination report. Additionally, the Veteran states that her right knee has manifested constant, chronic pain. See Board hearing Tr. at 2-4. She explained that her pain can flare and cause difficulty with walking and instability. Id. at 6, 11. Her reports have been consistent throughout the record and are based on an intimate knowledge of her history. The Board finds the Veteran's statements probative. Thus, the Veteran's right knee is manifested by pain, difficulty walking, instability, and reduced range of motion. Therefore, the Veteran has a current disability and the first Shedden element is met. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Wait v. Wilkie, 33 Vet. App. 8 (2020); see ex. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran contends that her disability was the result of an injury during INACDUTRA. See Board hearing Tr. at 2. Indeed, service treatment records show that the Veteran injured her right knee during a period of INACDUTRA. See STRs. She was sent to the emergency room for her injury. Id. The injury was deemed to have occurred in line of duty. Id. Thus, the second Shedden element is met. She has explained that her disability has continued since her injury in INACDUTRA. See Board hearing Tr. at 4. The record available notes increased pain with weight bearing, decreased range of motion, and swelling at the time of injury. See STR. The Veteran has competently and credibly described her symptoms at the time of onset to the present. The record supports that her right knee showed functional impairment at the time of injury to the present. Thus, the Board finds the Veteran credible and her right knee disability started in INACDUTRA as a result of injury and has continued to the present. Therefore, the third Shedden element is met. (Continued on the next page) Accordingly, the Board finds that the Veteran's right knee disability is etiologically related to her INACDUTRA. Therefore, the criteria for service connection for the Veteran's right knee disability have been met. See 38 C.F.R. §§ 3.102, 3.159, 3.303; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Strickland 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.