Citation Nr: 1503497 Decision Date: 01/26/15 Archive Date: 02/09/15 DOCKET NO. 09-18 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right thumb disorder. 3. Entitlement to service connection for a left ankle disorder. REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Sangster, Associate Counsel INTRODUCTION The Veteran had active military service from April 1981 to December 1985. She also had active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the Army Reserves. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional office (RO), which denied her claims of entitlement to service connection for herpes, a left shoulder condition, a right thumb condition, a right foot condition, a left foot condition and a left ankle condition. During the pendency of this appeal, however, a February 2014 decision of a local Decision Review Officer (DRO) granted the claims for service connection for the right and left foot conditions and assigned an initial 10 percent rating for each foot retroactively effective from July 2, 2007. Subsequently, in August 2014, the DRO also granted service connection for herpes and assigned an initial 0 percent (i.e., noncompensable) rating retroactively effective as of that same date, July 2, 2007. There is no indication the Veteran since has timely disagreed with these initial ratings and/or effective dates assigned for these now service-connected disabilities. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date). Therefore, that is considered a full grant of the benefits sought on appeal, meaning those claims are no longer at issue. See Shoen v. Brown, 6 Vet. App. 456, 457 (1994) (quoting Waterhouse v. Principi, 3 Vet. App. 473 (1992)). Additionally, in November 2014, in support of her remaining claims for a left shoulder disorder, right thumb disorder, and left ankle disorder, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board. This type of hearing is often and more commonly referred to as a Travel Board Hearing. A transcript of the hearing has been associated with the claims file, so is of record. The Board held the record open for an additional 60 days following the hearing to allow the Veteran time to obtain and submit supporting evidence. See Haney v. Nicholson, 20 Vet. App. 301 (2006) (When a presiding Veterans Law Judge (VLJ) at a hearing exercises discretion to leave the record open for the appellant to submit evidence pursuant to 38 C.F.R. § 20.709, the VLJ must set a deadline as to how long the record will remain open, and if such deadline is not set at the hearing, fair process requires the Board to subsequently set a deadline by which the record will close and notify the appellant of that deadline before the claim can be adjudicated). Even with the benefit of that additional grace period, however, these claims require further development before being decided on appeal, so the Board is remanding them to the Agency of Original Jurisdiction (AOJ). REMAND Additional development is necessary to fully and fairly adjudicate these claims. And although the Board sincerely regrets the additional delay that inevitably will result from remanding, rather than immediately deciding, these claims, it is necessary to ensure there is a complete record upon which to decide them so the Veteran is afforded every possible consideration. Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Active military service includes any period of active duty (AD) or active duty for training (ACDUTRA) during which the Veteran was disabled from disease or injury and any period of inactive duty training (INACDUTRA) during which the Veteran was disabled from injury - though not disease - or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C.A. §§ 101(21), (22), (23), (24), 106, 1110, 38 C.F.R. §§ 3.6(a), (d), 3.303(a). See also Harris v. West, 13 Vet. App. 509, 511 (2000); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); and Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, sometimes referred to as "summer camp," which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C.A. §§ 316 , 502, 503, 504, or 505. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year and is often referred to as "weekend warrior" training. These drills are deemed to be part-time training. So to the extent the Appellant is alleging she has disability as a result of injury or disease incurred or aggravated during her time in the reserves, it must be remembered that only "Veterans" are entitled to VA compensation under 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.303(a). Thus, to establish her status as a "Veteran" based upon a period of ACDUTRA, she must establish that she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The same is true for establishing her entitlement to compensation for disability from injury, though not also disease, incurred or aggravated during her INACDUTRA. Id. Turning now to the relevant facts. The Veteran had a VA examination in January 2014 regarding her claims for left shoulder, right thumb and left ankle disorders. The examiner diagnosed left shoulder impingement and degenerative joint disease (DJD, i.e. arthritis), right thumb tendonitis, and left ankle sprain. The examiner, however, opined that these claimed disorders were less likely than not incurred in or caused by the claimed in-service injury, event or illness. He commented that, according to the Veteran's service treatment records (STRs), she was never evaluated or treated for these disorders during her service, so it was unlikely they were related to her military service. In reaching this conclusion, the examiner noted the following items of evidence: (1) DD Form 214 (2) a March 1981 entrance examination noting a pre-military history of a breast biopsy, bilateral bunionectomy surgery in 1978; (3) chronological record of medical care dated March 1985 noting "petechial, nausea, vomiting, and headache for 24 hours, arthralgia and finger swelling, possible viral syndrome"; (4) chronological record of medical care dated August 1985 noting that Veteran had a follow up visit for feet X-ray, diagnosed with bilateral degenerative joint disease (DJD); (5) October 1985 X-ray report showed "bilateral hallux valgus, DJD in right 1st MTP [metatarsophalangeal] joint"; (6) chronological record of medical care dated October 1985 noting Veteran was given no running, jumping profile due to hallux limitus bilaterally; (7) a normal December 1985 separation examination noting a history of bunionectomy bilaterally; (8) a September 1990 clinical progress note documenting that the Veteran was seen for left foot pain for one week; and (9) a June 1992 emergency room report showing the Veteran was seen for a right shoulder injury from doing push-up. The VA examiner further acknowledged the Veteran's statements that she had injured her right thumb in 1997 when she fell on steps and broke her right thumb and wore a cast for four weeks. But this January 2014 examination report did not show that she was treated for a trapezius strain in May 1981 and the June 1992 emergency room visit was for her left shoulder, not right shoulder. Additionally, the January 2014 examiner's resultant opinion that the Veteran's claimed disorders were not related to her service was based on the fact that her regular AD had ended in December 1985, so did not additionally account for whether they instead were incurred either during a period of ACDUTRA or INACDUTRA. Moreover, after reviewing the claims file, there has not been clarification as to the exact dates when she was on ACDUTRA versus INACDUTRA after her regular AD ended in December 1985. So this needs to be clarified before deciding these remaining claims. Further, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion is considered adequate when it is based on consideration of an appellant's prior medical history and describes the disability in sufficient detail so the Board's evaluation of the claimed disability is a fully informed one and allows the Board to weigh the opinion against others. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); D'Aries v. Peake, 22 Vet. App. 97, 104 (2008). Resultantly, still further medical comment is needed. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Clarify the exact dates when the Veteran was on regular AD versus ACDUTRA and INACDUTRA. *This clarification is partly needed because she alleged during her rather recent November 2014 Travel Board hearing that all of the conditions now being claimed are the result of injuries she sustained during her service, if not on AD then while on ACDUTRA or INACDUTRA. She also said this is documented in the records concerning her service, presumably referring to her service treatment records (STRs). 2. Then return the claims folder to the January 2014 VA examiner. If this examiner is no longer available, then another examiner should be asked to review the claims folder and provide the requested opinion. The designee is asked to indicate whether it is as likely as not (50 percent or greater probability) the Veteran's left shoulder, right thumb and left ankle disorders: (1) initially manifested during her AD or ACDUTRA or INACDUTRA military service, including especially during her periods of AD service from April 1981 to December 1985;( 2) alternatively, if pre-existing, were aggravated during or by any of these periods of service, including her additional service on ACDUTRA and INACDUTRA; or (3) are otherwise related or attributable to her service, including to any relevant complaints or diagnoses in service. To assist in making these important determinations, the designated examiner must review the claims file, including a complete copy of this remand, for the Veteran's pertinent medical and other history. The term "as likely as not" means at least 50-percent probability. It does however not mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion such as causation is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. All necessary diagnostic testing and evaluation needed to make these determinations should be performed. The examiner must provide a comprehensive report of his findings, including complete rationales for all opinions expressed and conclusions reached, preferably citing the objective medical findings leading to the conclusions. 3. Then readjudicate these claims in light of this and all other additional evidence. If these claims continue to be denied, send the Veteran and her representative another supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2014).