Citation Nr: 1208158 Decision Date: 03/02/12 Archive Date: 03/16/12 DOCKET NO. 05-02 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a disorder manifested by left-sided weakness, including as secondary to service-connected cerebrovascular accident (hereafter, stroke) residuals. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs ATTORNEY FOR THE BOARD Tabitha G. Macko, Associate Counsel INTRODUCTION The Veteran had verified U.S. Naval Reserve active duty for training from August 1, 1997 to August 12, 1997, March 15, 1999 to March 26, 1999, and October 2, 1999 to October 3, 1999. This appeal to the Board of Veterans' Appeals (Board) arose from a rating decision entered in January 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut, which denied the benefit sought. The Board previously remanded this case in September 2006, October 2009, and in August 2010. FINDING OF FACT The Veteran's currently manifested disorder, characterized by left-sided weakness, resulted from injury during ACDUTRA service in October 1999. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for service connection for a disorder characterized by left-sided weakness have been met. 38 U.S.C.A. §§ 101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Veteran status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). The term "active duty" includes full-time duty in the Armed Forces, other than ACDUTRA. 38 U.S.C.A. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C.A. § 101(10). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). Any individual (1) who, when authorized or required by competent authority, assumes an obligation to perform ACDUTRA or INACDUTRA for training; and (2) who is disabled or dies from an injury or covered disease incurred while proceeding directly to or returning directly from such ACDUTRA or INACDUTRA shall be deemed to have been on ACDUTRA or INACDUTRA, as the case may be. 38 C.F.R. § 3.6(e). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). Service department records are binding on VA for purposes of establishing service in the U.S. Armed Forces. Duro v. Derwinski, 2 Vet. App. 530, 532 (1992); see also 38 C.F.R. § 3.203 (limiting the type of evidence accepted to verify service dates). A service department finding that an injury occurred in the line of duty will be binding on the VA unless it is patently inconsistent with the requirements of laws administered by the VA. 38 C.F.R. § 3.1(m); see Kinnaman v. Principi, 4 Vet. App. 20, 28 (1993). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. See generally Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). When there is approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran contends that her current left-sided weakness disorder was incurred while she participated in a run during a reserve training weekend in October 1999. After a complete review of the record, the Board finds that the overwhelming weight of the many, many private clinicians', VA clinicians' and VA examiners' conclusions was that the etiology of this left-sided weakness disorder was unclear, though the credible medical evidence throughout the entire claims file, that spans nearly ten years, varied as to what specifically the left-sided weakness disorder was and whether it was indeed the residuals of a stroke. Nonetheless, all the evidence weighs in favor of this left-sided weakness disorder having been incurred during the October 1999 ADT training period, and so, the Board finds that service-connection is warranted. According to her reserve service's Notice of Eligibility (NOE), the Veteran was performing ADT (active duty for training) during a weekend in October 1999 when she was participating in annual PRT (physical readiness training). While running, she appeared to faint. She was taken by ambulance to a local private hospital. Private treatment records dated in October 1999 referred to her admitting diagnosis for her hospitalization as acute left-sided weakness, which was her discharge diagnosis as well. Scattered private treatment reports dated prior to the October 1999 ADT period are of record and while they contain varying assessments of asthma and allergies and other disorders, there is no complaint of or assessment of a left-sided weakness disorder. However, following the October 1999 ADT period, the parade of assessments began. The October 13, 1999, statement by a private physician stressed that the etiology of the left-sided weakness disorder was unknown; however, the November 1999 private treatment bills sent to the Veteran's reserve service described her treatment as being for the residuals of a stroke. A November 1999 VA clinical evaluation noted she had been treated at the private hospital as if she had had a stroke; however, there had been no evidence that she had had a stroke, as the CAT scan and MRI examinations were normal. Physical therapy reports dated also in November 1999 noted her gradual improvement in the use of her left arm, though less so her left leg. By February 2001, the Veteran was evaluated at a local university neurology clinic for what the private clinician referred to as "unusual left leg movements and unusual left arm movements." To this evaluator, her constellation of symptoms suggested a psychogenic etiology. VA neurology clinic evaluations in July 2002 referred to her disorder as a neuromuscular disorder that had persisted since 1999 with no diagnosis, despite the university clinic evaluations. The Veteran had submitted an application for disability benefits to the Social Security Administration. In a November 2002 Administrative Law Judge decision, the ALJ granted disability benefits, noting that initially, the Veteran-claimant was found to have no disability at all, but that private physician, Dr. S., testified that though her symptoms were atypical, she had indeed suffered a stroke and that she had a motor disorder clearly related to the weakness. More recently, the Veteran underwent a VA neurology outpatient evaluation in February 2010, which noted her "dystonic-like semirhythmic posturing of her left-sided extremities." The VA clinician noted another evaluation from the university neurology clinic which had concluded she had a functional disorder, of an undetermined etiology, before this VA clinician reached the same conclusion, that of a dystonic-like semirythythmic posturing of the left extremities and slightly dysarthic speech, of unknown etiology. In October 2010, the Veteran was afforded a VA neurological disorders examination. After an objective examination (whereby the VA examiner noted he observed no symptoms that differed from the earlier evaluations), the VA examiner summarized the extensive testing and evaluations she has already received to arrive at the conclusion that the diagnosis was of a functional disorder, such as conversion or somatization. As such, the VA examiner found it was less likely than not that her left-sided neurologic disorder was etiologically related to residuals of a stroke. Thus, the record contains probative medical opinions that have assessed and described the Veteran's left-sided weakness disorder in varying terms, to include as secondary to the now service-connected stroke and as not etiologically related to the now service-connected stroke. Though the opinions reached no medically-agreed upon etiology, on the same token, nearly every medical opinion and evaluation noted that the symptoms and the Veteran's requests for treatment began during the October 1999 ADT weekend and has been continuous ever since. The Board finds that the evidence regarding whether the Veteran's claimed left-sided weakness disorder is related to service is at least in equipoise. When there is approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, as the evidence is at least in equipoise, the benefit of the doubt doctrine is applicable and the Veteran prevails. The claim for service connection for a disorder manifested by left-sided weakness is granted. The Board finds that VA has substantially satisfied the duties to notify and assist, as required by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with this appeal given the favorable nature of the Board's decision. ORDER Entitlement to service connection for a disorder manifested by left-sided weakness is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs