Citation Nr: 22017661 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-61 460 DATE: March 25, 2022 REMANDED Entitlement to service connection for a left knee disability is remanded. REASONS FOR REMAND The Veteran served in the Army National Guard and on active duty in the United States Army from November 1985 to February 1989. She subsequent served in the United States Army Reserve and Army National Guard; she served on active duty from July 2006 to October 2007 as part of Operation Iraqi Freedom. Then, upon release from active duty in October 2007, military personnel records show that the Veteran was transferred to the Army National Guard of New Hampshire. This matter comes before the Board of Veterans' Appeals (Board) from a September 2015 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge (VLJ) at an October 2021 Board hearing; a transcript of this hearing is of record. A February 2022 Board letter notified the Veteran the VLJ who presided at the October 2021 Board hearing was no longer employed at the Board and afforded her an opportunity for another Board hearing. The Board received no request for another hearing within the timeframe provided and, therefore, will proceed with consideration of the appeal. Entitlement to service connection for a left knee disability is remanded. The Veteran has reported the incurrence of a left knee injury, outside of military service, while skiing in January 1993 with subsequent anterior cruciate ligament repair in February 1993. See C&P (September 2016). The Veteran seeks service connection for a left knee disability. The Veteran concedes that her initial left knee injury (a tear of the left ACL) occurred in January 1993 and did not occur during a period of active duty, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA). However, the Veteran contends that her preexisting left knee condition was aggravated during drill duty (i.e. INACDUTRA) by (1) the physical demands training, including repeatedly jumping from trucks and prolonged standing and walking while carrying heavy gear, and (2) multiple incidents that she did not report because "military people tend to let things go." She describes one incident occurring in South Carolina during physical training (PT) as a slip and fall that caused "popping of one of the screws out of my knee. I had to wrap it and I had to go back, and Dr. O'Neill had to remove the screw because it was sticking out of my leg." She also reported that she believed driving tractor trailers at only a height of five feet tall, with jumping up/down the truck, pounded the knee and caused swelling. She further reported an incident occurred during a drill period when she "banged my left knee on the footing" of a truck she was climbing into. See Hearing Transcript (October 2021). The Veteran did not provide the dates of her alleged in-service injuries to the left knee that she believes aggravated her left condition. The Veteran also contends that her preexisting left knee condition was aggravated by her active duty deployment to Iraq in the 2006/2007 timeframe. Id. at 7. She argues that walking, carrying the heavy weight of equipment, when she is of a smaller build physically, "damaged" her knees. Based on the Veteran's contentions, the certain questions must be resolved. The first question is whether the Veteran's drill duty after her release from active duty in 2007 was federal INACDUTRA, when she was a part-time duty member of the National Guard of New Hampshire; and if so, then whether the Veteran's preexisting left knee disorder was aggravated, permanently worsened beyond normal progression, during her drill duty (i.e. INACDUTRA). See 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). It is noted that service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). In this case, the Veteran reports aggravation during drill duty (i.e. INACDUTRA). Furthermore, the evidentiary presumptionssuch 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 chronic diseasesdo not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). The second question is whether the Veteran's preexisting left knee disorder was clearly and unmistakably not aggravated by the Veteran's active duty from July 2006 to October 2007. In this regard, apart for the allegation of injury during drill duty, the Veteran also contends that her preexisting left knee condition was aggravated by walking and carrying the heavy weight of equipment, when she is of a smaller build physically, during her active duty in 2006/2007. The third question is whether the Veteran has nonpreexisting left knee disability that at least as likely as not began in or is otherwise related to injury or disease incurred during her active duty in 2006/2007. The Board finds that the evidence of record is inadequate to decide these matters. Therefore, to ensure that VA has met its duty to assist, the Board finds that remand is necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). First, remand is necessary so the originating agency may determine whether the Veteran's drill duty after her release from active duty in 2007 was INACDUTRA for federal service, as a part-time duty members of the National Guard of New; and if so, then obtain a VA examination and opinion on whether the Veteran's preexisting left knee disorder was aggravated, permanently worsened beyond normal progression, during her drill duty (i.e. INACDUTRA). It is noted that, although VA obtained a September 2015 VA examination and opinion, it did not address this question. It is noted that that higher standard of "clear and unmistakable evidence" does not apply when the claim is predicated on alleged injury during ACDUTRA/INACDUTRA as the evidentiary presumption of soundness on service entry does not apply. Also, although a September 2016 VA medical opinion was obtained that addressed the question of aggravation beyond natural progression, the opinion appears to rely heavily on the absence any further orthopedic surgery to support the finding of no aggravation without adequate explanation or discussion of the relevant history/clinical findings supporting the conclusion reached. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Second, remand is necessary to obtain a new medical opinion addressing the question of whether the Veteran's preexisting left knee disorder was clearly and unmistakably not aggravated by the Veteran's active duty from July 2006 to October 2007, with consideration of the Veteran's report her preexisting left knee condition was aggravated by walking and carrying the heavy weight of equipment, when she is of a smaller build physically, during her active duty in 2006/2007. See McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016) ("the VA examiner's failure to consider [a veteran's] testimony when formulating her opinion renders that opinion inadequate."). See also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate). Third, remand is necessary to obtain a medical opinion that addresses whether the Veteran has any nonpreexisting left knee disorder that began in or is otherwise releated to injury or disease during her 2006/2007 active duty. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (a VA examination and/or opinion is warranted when there is an indication in the record that a current disability is related to military service; the threshold for an indication is low). The Board acknowledges an October 2021 private medical opinion that reflects the Veteran's current left knee condition is "at least as likely as not or more than likely due to military service," The opinion indicates that: As you know these are almost impossible determinations to make. Over the course of a lifetime any knee that sustains this type of ligament injury will be expected to deteriorate toward arthritis.....While we cannot quantify how much wear would be attributed to military activities vs. other activities, it would seem reasonable to assume the duties involved would because more than the normal stresses of everyday civilian life. However, the opinion is inadequate for adjudicative purposes. It does not clearly address the questions of aggravation of preexisting disability during the Veteran's active duty between 2006 and 2007, or aggravation due to injury during a period of drill duty (i.e. INACDUTRA) as alleged by the Veteran; also the essential rational is not discernable. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). As a final matter, the Board observes that the Veteran receives private treatment for her left knee condition but there are no records dated since 2018. As remand is otherwise required as explained above, the Veteran should be afforded an opportunity to authorize release of relevant non-VA treatment records for Dr. O'Neill (The Alpine Clinic) and any other medical providers. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the complete treatment records of Dr. O'Neill pertaining to her left knee to include as related to her testimony regarding his repair of a knee hardware following a fall that caused "popping of one of the screws out of my knee." I had to wrap it and I had to go back, and Dr. O'Neill had to remove the screw because it was sticking out of my leg." Make two requests for the authorized records unless it is clear after the first request that a second request would be futile. 2. Verify whether the Veteran's drill duty after her release from active duty in 2007 was federal INACDUTRA as a part-time duty member of the National Guard of the state of New Hampshire. ONLY IF the INACDUTRA was federal, and not state INACDUTRA, then obtain new a VA examination and opinion on whether the Veteran's preexisting left knee disorder was aggravated, that is permanently worsened beyond normal progression, during her drill duty (i.e. INACDUTRA). Any opinion obtained should reflect consideration of the Veteran's theory that she had a preexisting left knee condition that was aggravated during drill duty (i.e. INACDUTRA) by :(1) the physical demands of training (e.g. repeatedly jumping on/off trucks; prolonged standing/ walking while carrying heavy gear), and/or (2) multiple incidents of falling on or banging the left knee (e.g. a slip and fall that she alleges caused "popping of one of the screws out of my knee; driving tractor trailers at only a height of five feet tall, with jumping up/down the truck, pounded the knee and caused swelling; "banged my left knee on the footing" of a truck) See Hearing Transcript (October 2021). 3. Schedule the Veteran for a VA examination by an appropriate clinician to address the Veteran's left knee disability claim that she reports was aggravated during her active duty from 2006 and 2007. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on interview of the Veteran and review of the record, detail the Veteran's reported symptoms prior to and after her period of active duty from July 2006 to October 2007, including the progression and severity of any symptoms consistent with any left knee disorder. Preexisting Left Knee Disorder (a) Identify the left knee disorder attributable to the Veteran's 1993 ski accident with ACL repair that clearly and unmistakably (undebatable) preexisted the Veteran's active duty service that began in July 2006. Explain. (b) For any/each left knee disorder that clearly and unmistakably existed prior to the Veteran's active duty that began in July 2006, opine on (i) whether it was clearly and unmistakably not aggravated by service, or (ii) whether it is clear and unmistakable that any increase was due to the natural progress. Consider and expressly address the Veteran's theory that her preexisting left knee condition was aggravated by walking and carrying the heavy weight of equipment, when she is of a smaller build physically, during her active duty in 2006/2007. Explain Non-Preexisting Left Knee Disorder (c) For any non-preexisting left knee disorder, opine on whether it is at least as likely as not had its onset during the Veteran's active service from July 2006 to October 2007, or is related to an in-service injury, event, or disease, to include the Veteran's report of carrying heavy equipment and being of a small build physically. If another etiology is more likely the cause, this should be clearly identified and explained why this is more likely the cause. 4. Ensure that the VA medical opinions obtained include a complete rationale for the conclusions reached. The medical opinions must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.