Citation Nr: 18131220
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-30 778
DATE:	August 31, 2018
ORDER
Entitlement to service connection for a right knee disorder is denied.
FINDING OF FACT
A preexisting right knee disorder was present prior to the Appellant’s entry into the June 13, 1988, active duty for training (ACDUTRA) period and was not aggravated by the June 13, 1988, to June 16, 1988, ACDUTRA period. 
CONCLUSION OF LAW
The criteria for service connection for a right knee disorder have not been met.  38 U.S.C. §§ 101, 1131, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303(a). 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Appellant had ACDUTRA service from June 1983 to October 1983, from November 1984 to October 1985, and from June 13, 1988, to June 16, 1988.  This issue is on appeal from a September 2013 rating decision.  In September 2016, the Appellant testified before the undersigned at a Board videoconference hearing.  
1. Entitlement to service connection for a right knee disorder.
The Appellant asserts that she injured her right knee while playing softball on ACDUTRA service on June 15, 1988.  The Appellant does not argue, and her STRs do not support, any right knee complaints or treatment during an earlier dated ACDUTRA period.
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.
The Appellant did not service on active duty.  Instead, the entirety of her service consisted of ACDUTRA service with the Army National Guard.  Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated while performing ACDUTRA.  38 U.S.C. §§ 101(24), 106.  
Every veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated.  38 U.S.C. § 1111; 38 C.F.R. § 3.304(b).
Regulations concerning the presumption of soundness and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service.  See Smith v. Shinseki, 24 Vet. App. 40 (2010).  The presumption of soundness will apply to a period of ACDUTRA only if "veteran" status has been established through a prior period of active duty and an entrance examination was performed prior to the period of ACDUTRA.  Id.  Veteran status is defined in the regulations as “a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable.”  See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d).  In effect, an individual who has served only on ACDUTRA must establish a service-connected disability in order to achieve veteran status and to be entitled to compensation.  As the Appellant is not currently service-connected for any disabilities and as she did not serve on a period of active duty, she has not achieved veteran status.  Accordingly, the presumption of soundness and the presumption of aggravation to not apply to her current claim.
Medical records dated in April 1988 and May 1988 document that the Appellant entered her June 13, 1988, ACDUTRA period with a preexisting right knee disorder.  On April 7, 1988, the Appellant was seen by a private hospital for right knee pain.  The Appellant reported falling on a ramp when her right knee “turned in.”  She heard her right knee pop and she was unable to bear weight on it.  She complained of pain on the medial aspect of the knee and some swelling was noted.  She was diagnosed with a torn medial collateral ligament of the right knee and advised to use her knee immobilizer brace.  An X-ray taken at that time was normal.  On May 24, 1988, the Appellant was seen again by a private hospital for an injury of the right knee.  She reported that she was playing baseball when her right knee “gave out” while running.  She complained of severe pain of the medial aspect of her right knee.  The right knee was swollen.  The Appellant was advised to use her right knee brace and to build up her quad strengthening exercises.  At a June 9, 1988, private treatment visit, the Appellant had moderate effusion of the right knee with full motion and no tenderness.  She had decreased quad tone and girth.  She was advised to increase her quad strengthening and to wear her knee brace.  She was advised not to play softball “at least for another week or two.”  The Appellant was not on a period of ACDUTRA or inactive duty for training (INACDUTRA) in April 1988, May 1988, or on June 9, 1988.
As further support for the existence of a preexisting right knee disorder, on Reports of Medical History for the Army National Guard dated in April 1989 and March 1993, the Appellant reported that she injured her right knee in April 1988 (when she was not on ACDUTRA).
With respect to a claim for aggravation of a preexisting disorder during a period of ACDUTRA, in order for a claimant to establish "veteran" status, the claimant must demonstrate both elements of aggravation: (1) that the preexisting disability permanent worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service).  Donnellan v. Shinseki, 24 Vet. App. 167 (2010).  In such instances, the claimant is not entitled to the easier presumption of aggravation standard.  38 U.S.C. § 1153; 38 C.F.R. § 3.306(a).  The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter.  Donnellan, 24 Vet. App. at 174.  There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply.  Donnellan, 24 Vet. App. at 175.
Here, the probative evidence of record does not show that the Appellant's preexisting right knee disorder underwent a permanent increase in the underlying severity during her June 13, 1988, to June 16, 1988, ACDUTRA period.
The Appellant’s service treatment records (STRs) document that at a June 14, 1988, visit, the Appellant had effusion of the right knee and tenderness over the medial compartment.  She had full range of motion of the knee.  She was advised to use her knee brace for vigorous activities.  A June 16, 1988, Statement of Medical Examination and Duty Status documents that the Appellant was on ACDUTRA from June 13, 1988, to June 16, 1988.  The Statement reports that on June 15, 1988, the Appellant injured and twisted her right knee while playing softball.  She was trying to field a ground ball and her right knee gave out.  She was treated at a private hospital.  The incident was found to be in the line of duty.  
In a June 16, 1988, statement, the Appellant stated that while playing the position of shortstop in the game of softball, a ground ball was hit to her.  She went down to field the ball when her right knee gave out.  She heard a pop and felt “like I had tore my knee out of my leg.”  A June 16, 1988, buddy statement from a fellow softball player indicated that she observed the Appellant twist her right knee during the game that day.
Private treatment records dated on June 16, 1988 (while the Appellant was still on ACDUTRA), document that she “reinjured her knee playing softball again last night.”  The Appellant had effusion of the right knee that was drained.  She was advised to stay in the knee splint for another two weeks and then rehabilitation would begin.
Following her June 1988 ACDUTRA period, the Appellant continued to receive treatment for her right knee.  She eventually underwent a right knee anterior cruciate reconstruction with mid third patellar tendon, mini Andrews lateral iliotibial tendosis, and partial lateral meniscectomy surgery in February 1990 by a private facility.  At the June 2013 VA examination, the Appellant was diagnosed with status post right ACL reconstruction with radiographic imaging findings of minimal patellofemoral degenerative changes.  
Following a review of the Appellant’s claims file and a physical examination of the Appellant, the June 2013 VA examiner determined that the Appellant’s current right knee disorder was less likely as not (less than 50/50 probability) caused by or a result of, or related to the right knee condition/pain noted during her military service.  The examiner reasoned that no evidence of record is available to support that the 1988 right knee injury resulted in an ACL reconstruction in the year 1990.  The current minimal patellofemoral degenerative changes were most likely age-related and the most likely cause of the Appellant’s report of pain.  The examiner also cited to the medical literature to support the opinion.
A VA addendum medical opinion was obtained in December 2015 by a different VA examiner.  Following a review of the Appellant’s claims file, the VA examiner found that the accumulated evidence led the examiner to the medical conclusion that a chronic right knee condition preexisted the Appellant’s in-line-of-duty injury on June 15, 1988.  The examiner opined that that a chronic right knee condition clearly and unmistakably preexisted the Appellant’s in-line-of-duty injury on June 15, 1988.  The examiner then found that it was less likely than not that the Appellant’s current right knee condition status post ACL reconstruction was aggravated (permanently worsened) beyond its natural progression by the line of duty injury while on ACDUTRA status on June 15, 1988, during service.  The examiner reasoned that the intercurrent records from 1988 to 1990 and from 1990 to 2015 did not support this conclusion.  The examiner stated that there were no definitive records to support the conclusion that the Appellant’s right knee condition status post ACL reconstruction in 1990 was caused by the line of duty injury while on ACDUTRA status on June 15, 1988, during service.  With the exception of the June 2013 VA examination, there were no incurrent treatment records regarding right knee complaints or pain since 1990.
At her Board hearing, the Appellant argued that the December 2015 VA examiner was prejudiced against her because the Appellant worked in the personnel office of the National Guard.  The Board finds no evidence of prejudice in the December 2015 VA examination report or any evidence that the VA examiner knew the Appellant prior to reviewing her claims file for purposes of the medical opinion.  However, even assuming that the Appellant’s reports of prejudice are true, the June 2013 VA medical opinion was provided by a different VA examiner and also resulted in a negative nexus opinion.  The examiners’ combined opinions are probative they are based on an accurate medical history and provide explanations that contain clear conclusions and supporting data.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  There are no other medical opinions of record.
While the Appellant believes her preexisting right knee disorder did not preexist her June 15, 1988, ACDUTRA period and/or was aggravated by her June 15, 1988, ACDUTRA period, she is not competent to provide opinions in this case.  Such opinions require specific training in the field of orthopedics and the record does not show that the Appellant has such training or skills.  The issue is also medically complex, as it requires interpretation of complicated diagnostic medical testing.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007).  Consequently, the Board gives more probative weight to the VA examiners’ medical opinions than the Appellant’s own lay statements.
Further, service connection on a presumptive basis is not warranted for periods of ACDUTRA.  See Smith, 24 Vet. App. at 47.  The chronic disease presumptive provisions of 38 U.S.C. §§ 1112 and 1137 and 38 C.F.R. § 3.309 do not apply to the Appellant’s claim.  
Accordingly, the Board finds that the Appellant had a preexisting right knee disorder that was not aggravated during her June 15, 1988, ACDUTRA period.  In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  The claim is denied.
 
MARJORIE A. AUER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Shauna M. Watkins, Counsel 

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