Citation Nr: 21041613 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-11 934 DATE: July 9, 2021 REMANDED Entitlement to service connection for left knee condition is remanded. Entitlement to nonservice connected pension is remanded. REASONS FOR REMAND The appellant had a period of active duty for training (ACDUTRA) from July 29, 1972 to January 27, 1973 with the United States Marine Corps Reserves. He had additional inactive service prior to discharge in January 1974. In November 2020, the Board remanded the case for further development, to include obtaining a VA examination and medical opinion. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for left knee condition The Board remanded this case to obtain a new VA examination and medical opinion as to the nature and etiology of the appellant's left knee condition. In March 2021, the examiner diagnosed patellofemoral pain syndrome of the left knee and opined that it is less likely than not incurred in or caused by the claimed in-service injury in boot camp. The examiner noted that the appellant received a diagnosis of left knee strain in December 1972 and concluded that even though it incurred in service the service records have been silent and chronicity of the same symptoms were not demonstrated. The Board finds this opinion inadequate as a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In this case the examiner relied on the absence of evidence in the service records and failed to provide an analysis that considered and discussed the facts of the case, to include the appellant's reports of symptoms and medical history. Accordingly, a remand is necessary to obtain a new medical opinion. 2. Entitlement to nonservice connected pension Pension is payable to a veteran of a period of war who is permanently and totally disabled from nonservice-connected disability not the result of his or her own willful misconduct. 38 U.S.C. § 1521(a); 38 C.F.R. §§ 3.3, 3.314(b). A veteran meets the service requirements of that section if he served in active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Thus, when a claim is based on a period of active duty for training (ACDUTRA), there must be evidence that the individual concerned died or became disabled during the period of ACDUTRA because of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA will not qualify as "active military, naval, or air service," and the appellant will not achieve "veteran" status for purposes of that claim. See 38 U.S.C. § 101(22), (24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The Board notes that the September 2020 rating decision granted service connection for lower back condition that occurred during the period of ACDUTRA in August 1973 at Camp Geiger. While this period of ACDUTRA occurred during a period of war it does not meet the 90-day requirement. However, if it is determined that the appellant is disabled from an injury to the left knee that incurred in the line of duty during his period of ACDUTRA from July 1972 to January 1973 and achieves "veteran" status for that period, he will have the requisite service necessary to demonstrate entitlement to nonservice-connected pension benefits as his ACDUTRA period falls within a period of war. As such, the claim of entitlement to service connection for left knee condition is inextricably intertwined with the pension claim and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (issues are inextricably intertwined when a decision on one issue would have a significant impact on another issue). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. 2. Obtain updated VA records from March 2021 to present. If such records are unavailable, the appellant's claim file must be clearly documented to that effect and the appellant notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the appellant's claims file. If the examiner determines that an opinion cannot be provided without an examination, the appellant should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Identify or diagnose each left knee disability, to include arthritis of the patella. (b.) Opine whether it is at least as likely as not (a 50 percent or greater probability) that any left knee condition (1) began during or is otherwise related to active service, to include a period of ACDUTRA, including a diagnosis of left knee strain in December 1972, (2) manifested (i.e. arthritis) within one year after discharge from service, or (3) was noted during service with continuity of the same symptomology since service The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. The examiner must consider and address the following: 1) the appellant's description of his in-service injury and symptoms as well as his post-service symptoms; and 2) the medical treatment records reflecting complaints of left knee arthritis in May 2009 and an October 2013 imaging study of arthritis of the left patella. In providing the requested opinion, the examiner should consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms, to include continuity of symptomology since service. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? In all opinions rendered, the examiner is advised that the appellant is competent to report his symptoms and treatment history. (Continued on the next page) A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.