Citation Nr: 21042137 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-04 518 DATE: July 12, 2021 ORDER Entitlement to service connection for a right knee disability is granted. FINDING OF FACT On September 1, 2009, when the Veteran injured his right knee, it was during qualifying service, and he has consequent disability. CONCLUSION OF LAW The criteria are met for entitlement to service connection for a right knee disability. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty (AD) from March 1990 to January 1991 and from February to August 2004 and had additional service in the Air Force Reserves before and after from November 1989 to July 2013 on active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), i.e., Agency of Original Jurisdiction (AOJ). In December 2018, the Board remanded this claim back to the RO (AOJ) for further development and consideration including especially to clarify when the Veteran was on ACDUTRA and INACDUTRA in the Air Force Reserves, particularly if during the time he alleges to have sustained the right knee injury in question, and then for a medical opinion concerning whether there is a relationship or correlation ("nexus") between any current right knee disability and that injury. There since has been the required compliance, certainly the acceptable substantial compliance, with those remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall v. West, 11 Vet. App. 268 (1998); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Entitlement to service connection for a right knee disability The Veteran contends that his right knee disability is due to an injury he sustained in September 2009 during INACDUTRA reserve service in the Air Force National Guard. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110, 1131; 38C.F.R. §3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(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 or aggravated during service', the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran's November 2019 VA knee examination, on remand, confirmed he has degenerative arthritis of his right knee, so there is no disputing he has current disability involving this knee. The initial diagnosis of this disease reportedly was in 2010 or thereabouts, so while he was in the reserves. However, although arthritis may be presumed to have been incurred in service since a "chronic" disease, per se, according to 38 C.F.R. § 3.309(a), if it initially manifested within a year of the Veteran's discharge from service, this presumption only applies to AD service not also ACDUTRA and INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). That said, it still is possible to establish the right knee arthritis is owing to an injury in service if it is shown the Veteran sustained the injury during qualifying service (whether AD, ACDUTRA or INACDUTRA) and that the arthritis in this knee is the result or consequence. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). Active military, naval, or air service includes AD and any period of ACDUTRA during which the individual concerned was disabled from a disease or an injury incurred or aggravated in the line of duty and any period of INACDUTRA during which the individual concerned was disabled from an injury though not also disease, incurred or aggravated in the line of duty or from an acute myocardial infarction (i.e., heart attack), a cardiac arrest, or a cerebrovascular accident (stroke) occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Regarding the latter two types of service, ACDUTRA and INACDUTRA, for members of the National Guard of any state, this encompasses duty in drills, field exercises, arms competitions, or military schools when required by Federal law. 38 U.S.C. § 101(20), (22)(C), 23(C). A person enlisted in a State National Guard unit is simultaneously enlisted in the National Guard of the United States; however, the person is only considered to be serving in the latter capacity when formally called into such service. Allen v. Nicholson, 21 Vet. App. 54 (2007), see also Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003)). At all other times, the enlisted National Guard member is considered instead to be in the State militia or in civilian status, neither of which qualifies as active military service for purposes of Veterans' benefits. To have basic eligibility for Veterans' benefits based on a period of duty as a member of a State's National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States or must have performed "full-time duty" under the provisions cited in 38 U.S.C. § 101(22)(C), (23)(C). Here, the Veteran's service treatment records (STRs) show he sought treatment for right knee pain after running on September 1, 2009. A military personnel record report from May 2019 confirms he was on qualified pay status from August 31 to September 4, 2009. His leave and earnings statement (LES) dated in August 2009 reflects the same. The Board accordingly finds that he sustained that injury on September 1, 2009, during qualifying service. As for the additional requirement of a correlation between that injury during qualifying service and the current right knee disability involving arthritis, the VA examination on remand included a November 2019 medical opinion finding this nexus established by the treatment record. Namely, the Veteran's November 2009 MRI taken in conjunction with the same line of treatment notes established on September 1, 2009 revealed a meniscal tear that ultimately resulted in the development of osteoarthritis. However, the RO apparently disregarded this opinion in June 2020 internal communications after erroneously finding that the Veteran was not on qualifying duty status at the time of his injury. But, as already discussed, that injury did indeed occur during a period of qualifying service. Moreover, when considering the VA examiner's favorable opinion, there is no countervailing evidence of equal or greater probative weight tending to contrarily disassociate the Veteran's current right knee disability from this same diagnosis he received following his injury in September 2009 during qualifying service. For these reasons and bases, and certainly when resolving all reasonable doubt in his favor, service connection must be granted for his right knee disability. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Stearns, 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.