Citation Nr: 0715637 Decision Date: 05/25/07 Archive Date: 06/01/07 DOCKET NO. 04-07 571A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for postoperative residuals of a left knee injury with arthritis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The appellant served in the Ohio National Guard on active duty for training (ACDUTRA) from February 1974 to August 1974. His DD Form 214 shows that he had 2 months and 29 days of prior inactive service. He also served in the Ohio National Guard from August 1974 to November 1979. This matter comes before the Board of Veterans Appeals (BVA or Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. The appellant appealed that decision to BVA, and the case was referred to the Board for appellate review. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Reasons for Remand: To obtain a medical opinion, to secure the veteran's service medical records from his period of service in the National Guard, and to provide a proper notice letter. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2006). In this case, the Board observes that the appellant was afforded a VA examination in July 2002 in connection with his claim for service connection for postoperative residuals of a left knee injury with arthritis. However, the July 2002 VA examiner did not offer an opinion as to the etiology of the disorder. The appellant was afforded another examination in connection with his claim in July 2003. Although the July 2003 VA examiner did provide an opinion, there is no indication that he reviewed the appellant's claims file. Therefore, the Board finds that a clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any left knee disorder that may be present. 38 C.F.R. § 3.159(c)(4)(i). The Board further observes that the appellant's service medical records are incomplete. Even prior to the enactment of the Veterans Claims Assistance Act of 2000, the United States Court of Appeals for Veterans Claims (Court) had held that in cases where the veteran's service medical records were unavailable, through no fault of the veteran, there was a "heightened duty" to assist the veteran in the development of the case. See generally McCormick v. Gober, 14 Vet. App. 39, 45-49 (2000); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Board notes that the appellant's service medical records from his period of ACDUTRA from February 1974 to August 1974 have been obtained and associated with the claims file. However, he had 2 months and 29 days prior inactive service and subsequent service in the Ohio National Guard from August 1974 to November 1979. The RO did request the appellant's service medical records for that period of service, but the Adjutant General only sent the veteran's Retirement Credits Record and Report of Separation and Record of Service. As such, the service medical records for that period of time have still not been obtained and associated with the claims file. Therefore, the Board concludes that an additional attempt should be made to locate the veteran's service medical records for his period of service in the Ohio National Guard. With regard to the appellant's status as a "veteran" in this case, the Board notes that it does not appear that the appellant has ever served on active duty but only on ACDUTRA and INACDUTRA with the National Guard. In this regard, the Board notes that service connection may be established for a disability on a direct basis where a current disability exists and that disability resulted from a disease or injury incurred or aggravated in line of duty in "the active military, naval, or air service . . . ." 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. "The term 'active military, naval, or air service' includes active duty, 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 for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). In this regard, the advantage of the evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on active duty for training and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of active duty for training, a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim" (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the appellant to show that he became disabled from an injury or disease incurred or aggravated in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. The mere notation of disability on a physical profile is not sufficient evidence to show that the disability resulted from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA as opposed to its having resulted from an injury or disease incurred in civilian life. The RO should reajudicate this claim on remand with these principles in mind. Lastly, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. In the present appeal, the appellant was not provided with notice of the type of evidence necessary to establish a disability rating or an effective date. As those questions are involved in the present appeal and the case is already being remanded for further development, the RO should provide the appellant with a proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the type of evidence that is needed to establish a disability rating and an effective date. Therefore, in order to give the appellant every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the appellant a corrective notice letter under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and an effective date for the claim on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506 (U.S. Vet. App. Mar. 3, 2006). 2. The RO should contact the National Personnel Records Center (NPRC), Records Management Center (RMC), the Ohio Adjutant General or any other appropriate location to request the complete service medical records of the appellant for his full period of service in the Ohio National Guard as well as any other appropriate records repository to which pertinent service medical records may have been sent. As set forth in 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2), the RO should continue efforts to locate such records until it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. The appellant should be notified of the RO's attempts to locate his medical records from his National Guard service as well as any further action to be taken. 3. The RO should refer the appellant's claims folder to the July 2003 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for an opinion as to the etiology of the appellant's left knee disorder. The examiner is requested to review all pertinent records associated with the claims file, including the service medical records and private medical records, and to render an opinion as to the likelihood that the appellant's current left knee disorder is the result of an injury to the knee shown in the service medical records as opposed to its being more likely due to some other factor or factors. (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 conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2006), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The RO should readjudicate the claim for service connection for a left knee disorder without applying the presumptions, such as that of sound condition or aggravation, that are afforded to veterans to assist them in establishing service connection for disabilities resulting from diseases or injuries sustained during active duty. In this regard, the Board notes that there is among the Service medical records a Consultation Sheet dated in February "1973", but the year on this sheet appears to have been written in error since other reports show from the same date in February show the date as "1974" and the personnel records show the appellant as having not entered the National Guard until November 1973. Nevertheless, a Consultation Sheet dated in March 1974 show that the appellant provided a history of having hurt the left knee "4 y[ea]rs ago". It is the adjudicatory function of the RO to determine how much evidentiary weight should be assigned to this history (without applying the presumption of sound condition, since this protective provision is not afforded for periods of ACDUTRA) in order to determine whether to decide the case based on direct incurrence of a left knee injury during ACDUTRA or, in the alternative, based on aggravation of pre-existing left knee injury. This determination is essentially a legal determination that is within the judgment of the adjudicator regarding how much evidentiary weight to assign possible conflicting items of evidence in the record. The RO should then consider the all medical and other evidence of record (including examiners' opinions) in deciding whether a current left knee disability is the result of a left knee disease or injury incurred or aggravated during a period of ACDUTRA (or a left knee injury incurred or aggravated during a period of INACDUTRA). See Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim" (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991). If the benefit sought is not granted, the appellant and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals