Citation Nr: 21040792 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-41 064 DATE: July 7, 2021 ORDER Service connection for a right knee disorder is denied. Service connection for a left knee disorder is denied. FINDINGS OF FACT 1. A right knee disorder was not present during active duty service or within one year of active duty service, symptoms have not been continuous since active duty service and it is not otherwise related to or aggravated by active duty service, nor has it been shown to have been incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA. 2. A left knee disorder was not present during active duty service or within one year of active duty service, symptoms have not been continuous since active duty service and it is not otherwise related to or aggravated by active duty service, nor has it been shown to have been incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA. CONCLUSIONS OF LAW 1. A right knee disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 101(2), (24), 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.1 (d), 3.6(c), 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. A left knee disorder was not incurred in or aggravated by service. 38 U.S.C. §§ 101(2), (24), 1101, 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. § 3.1 (d), 3.6(c), 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to July 1984, July 1993 to November 1993, April 2005 to September 2005, October 2005 to September 2006, August 2008 to March 2009, and February 2010 to June 2010. He also had various periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) with the National Guard. In November 2018 the Board of Veterans' Appeals (Board) remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Turning to the relevant laws and regulations, 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). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. 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 Department of Veterans Affairs (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. In this case, the Veteran has achieved "veteran" status by virtue of his verified periods of active duty outlined above. Thus, his qualifying as a "veteran," with active military, naval, or air service for disability benefits for a disability resulting from injury or disease incurred during active duty service from July 1981 to July 1984, July 1993 to November 1993, April 2005 to September 2005, October 2005 to September 2006, August 2008 to March 2009, and February 2010 to June 2010, as well as reference to him as the Veteran, is not in question. The Veteran claims that service connection is warranted for right and left knee disabilities because they are related to repeated parachute jumps during service from 1981 to 1984. He has also maintained that his left knee was injured during National Guard service in November 2011. The record reflects current diagnoses of right knee strain and left knee meniscal tear and arthritis. As such, the first requirement of service connection has been met. With respect to the contention that the right and left knee disorders are related to parachute jumps during active duty service from July 1981 to July 1984, the service treatment records (STRs) during this period of service do not reflect any complaints or findings whatsoever with respect to the knees. As such, the second requirement of service connection an inservice incurrence has not been met. Moreover, the competent medical evidence weighs against a finding that the current knee disabilities are causally or etiologically related to inservice parachute jumps. In this regard, there are two medical opinions against the claim. Notably, a November 2013 VA examiner opined that the knee conditions are less likely as not incurred in or caused by the claimed inservice event, injury or illness. The examiner noted that there is no mention of a knee injury in service or suspected knee injury from parachute jump. Instead, both the medical evidence and the Veteran indicated that his left knee pain began in 2011 after running on a treadmill. Additionally, a March 2016 VA examination report contains an opinion that it was less likely as not that the Veteran's knee condition was caused by parachute jumping in service. The examiner noted that there are STRs noting a right ankle fracture in service during airborne training, but nothing reflecting any knee injury, and according to the Veteran's own report, his left knee pain began as sharp pain in 2011 after running on a treadmill. There is no medical opinion of record in favor of the claim that the knee disorders are causally or etiologically related to active duty, to include parachute jumps during active duty. There is also no medical evidence that any right or left knee disorder was caused or aggravated during any subsequent period of active duty. While a January 2000 X-ray study (not during any period of active duty service) revealed no bone or joint pathology but showed soft tissue fullness at prepatellar region suggesting possible accumulation of fluid within articular space, the STRs dated during the subsequent periods of active duty service do not reflect any complaints, findings or treatment with respect to the knees. In fact, a December 2008 post-deployment assessment noted that the Veteran denied muscle aches and stiff or swollen joints. No knee complaints are noted. Moreover, a July 2012 medical history form reflected that the Veteran denied arthritis, taking medication or being under the care of a physician during the past year. As such, the evidence weighs against a finding that a right or left knee disorder was caused or aggravated by active service. Regarding presumptive service connection, because the STRs are entirely negative for right or left knee complaints or findings during active duty service from July 1981 to July 1984, July 1993 to November 1993, April 2005 to September 2005, October 2005 to September 2006, August 2008 to March 2009, and February 2010 to June 2010, no chronic disease or injury was shown in active duty service. Therefore, the medical evidence does not support presumptive service connection on a "chronic disease or injury shown in service" basis. Next, the medical evidence does not support presumptive service connected based on continuity of symptomatology since active duty service. Specifically, the Veteran's STRs do not reflect any knee complaints or findings over the years and although a January 2000 X-ray study revealed possible accumulation of fluid within articular space of the right knee, this was not during a period of active duty service and the subsequent STRs do not reflect any ongoing complaints, and with respect to the left knee specifically, the Veteran indicated in a January 2012 VA treatment record that he had had ongoing left knee pain for only two months. As such, the medical evidence does not support service connection on a "continuity of symptomatology" basis. Further, the knee disorders did not manifest to a degree of 10 percent or more within one year from the date of separation of service. The Veteran finally separated from active duty service in June 2010 but did not note left knee symptoms until November 2011 at the earliest with a diagnosis of arthritis of the left knee in January 2012. There is no evidence of any diagnosis of arthritis of the right knee to date. This evidence does not support presumptive service connection on a "manifest within one-year from separation" basis. Therefore, presumptive service connection on any basis is not supported by the medical evidence. Regarding ACDUTRA and/or INACDUTRA, as the Veteran's knee disorders are related to injury, service connection can be granted if right knee strain and left knee meniscal tear/arthritis were incurred or aggravated during a period ACDUTRA or INACDUTRA. See 38 U.S.C. §§ 101(2), (24), 1110; 38 C.F.R. § 3.6. Initially, the Veteran's STRs during these periods of service do not reflect any complaints or findings with respect to the knees. Importantly, and as noted above, a December 2008 post-deployment assessment noted that the Veteran denied muscle aches and stiff or swollen joints. No knee complaints are noted. Moreover, a July 2012 medical history form reflected that the Veteran denied arthritis, taking medication or being under the care of a physician during the past year. Additionally, the Veteran was not serving on a period of ACDUTRA or INACDUTRA in January 2000 when he had possible accumulation of fluid within right knee articular space or in November 2011 when left knee symptoms first manifested. As such, right and left knee disorders did not result from injury incurred or aggravated while performing ACDUTRA or INACDUTRA. Thus, for the foregoing reasons, service connection for right and left knee disabilities is not warranted, and the appeal is denied. In rendering this decision, the Board has considered the Veteran's lay statements that his knee disabilities are related to parachute jumps in service and/or began during service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to offer an opinion as to the etiology of his current disorders due to the medical complexity of the matters involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Redman, 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.