Citation Nr: 1324349 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 09-30 077 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for left wrist disability. REPRESENTATION Veteran represented by: Jodee C. Kayton, Attorney-at-Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from October 16, 1978, to October 15, 1981, and from October 16, 1981, to March 18, 1986. This matter came to the Board of Veterans' Appeals (Board) from a February 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2011; the transcript is of record. In September 2011, the Board determined that new and material evidence had been received to reopen the claim of entitlement to service connection for left wrist disability and remanded the issue on the merits. The appeal is REMANDED to the VA St. Petersburg RO. VA will notify the Veteran if further action is required. REMAND Under the relevant law, a "person seeking VA benefits must first establish by a preponderance of the evidence that the service member, upon whose service such benefits are predicated, has attained the status of veteran." See Holmes v. Brown, 10 Vet. App. 38, 40 (1997), citing Aguilar v. Derwinski, 2 Vet. App. 21 (1991) (holding that, before applying for benefits, a claimant must demonstrate qualifying service and character of discharge by a preponderance of evidence). For purposes of VA benefits, a "veteran" is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002 & Supp. 2012); 38 C.F.R. § 3.1(d) (2012). If the former service member did not die in service, then pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim is based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2); 38 C.F.R. § 3.12. A discharge under honorable conditions is binding on VA as to the character of discharge. See 38 C.F.R. § 3.12(a). In November 1986, the RO issued an Administrative Decision. The Veteran entered active duty on October 16, 1978. He received an honorable discharge on April 20, 1981. He reenlisted on April 21, 1981, for a period of five years. He received a bad conduct discharge on March 18, 1986. Had he not reenlisted, he would have completed his first period of obligated service on October 15, 1981. He received a General Court Martial on February 14, 1985, for the possession and distribution of marijuana on July 30, 1984. He was discharged from service with a bad conduct discharge, confined for 21 months and reduced to the grade of Private E-1. Based on the facts, VA found that the Veteran's discharge from his period of service from October 16, 1981, through March 18, 1986, constitutes a bar to VA benefits, and he is not entitled to health care benefits based on this period of service. The RO found that the Veteran is entitled to receive benefits based on his conditional period of service from October 16, 1978, through October 15, 1981. He is entitled to health care based on this period of service. In January 2002, the Veteran submitted a VA Form 21-4138, Statement in Support of Claim, requesting to reopen his claim of service connection for left wrist disability. He stated that he was applying for a discharge upgrade and he planned to keep VA updated regarding his discharge upgrade status. In June 2002, the RO sent a VCAA letter to the Veteran at the address he had provided on the VA Form 21-4138. Such letter was returned as undeliverable. The Veteran did not provide another address, did not contact the RO, and did not submit any evidence in support of his claim to reopen. Thus, his claim was deemed abandoned. 38 C.F.R. § 3.158. In June 2009, the Veteran submitted a VA Form 21-4138 in which he reported that he had turned in a request to the Army to upgrade his discharge and that he would like VA to let him know whether his discharge had been upgraded. In September 2011, the Board remanded the matter to obtain the Veteran's DD Form 214s, service personnel records, and 201 personnel file from his periods of service. The RO/AMC was also instructed to contact the Veteran and request that he submit any and all documents related to his application for an upgraded discharge, and to contact the Department of the Army, the Department of the Defense, or any other appropriate agency, to determine whether the Veteran has applied for an upgraded discharge, and the status of any such request. The Veteran's service personnel records, to include his DD Form 214 from his period of dishonorable service , were associated with the claims folder. In March 2012 during a VA telephone contact with the Veteran he indicated that he had received a letter from the Army Human Resources Command pertaining to his application for an upgrade in discharge. He submitted a copy of the March 2012 correspondence from the Department of the Army, Army Review Boards Agency, which indicated that as his records were on loan to another agency the Army Board for Correction of Military Records (ABCMR) could not make a decision on his application. A copy of his February 2012 DD 149, Application for Correction of Military Records, was provided by the U.S. Army Human Resources Command but they did not have any other records pertaining to the Veteran. In April 2012 during a VA telephone contact with the Veteran he indicated that he was no longer going to deal with the Army review board to get his character of discharge upgraded. In light of the fact that the Veteran expressed his intent to discontinue any efforts to upgrade his discharge, the Veteran's period of service from October 16, 1981, through March 18, 1986, constitutes a bar to VA benefits, and he is not entitled to health care benefits based on this period of service. With regard to the merits of the claim of service connection for left wrist disability, the Veteran asserts that his left wrist disability pre-existed service and was aggravated during his first period of service (October 16, 1978, to October 15, 1981). VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The presumption of soundness attaches only where there has been an induction examination during which the disability about which the veteran later complains was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C.A. § 7104(c). Also pertinent is the decision of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004), issued on June 1, 2004, summarized the effect of 38 U.S.C.A. § 1111 on claims for service-connected disability: When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. On the other hand, if a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. In that case section 1153 applies and the burden falls on the veteran to establish aggravation. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under section 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C.A. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F. 3d at 1096. An October 1978 examination performed for enlistment purposes reflects the Veteran's report that he sustained a left wrist fracture approximately 4 years prior in a motorcycle accident. The examiner noted that there was no deformity and he was deemed qualified for service. Service treatment records from his first period of service (October 16, 1978, to October 15, 1981) are negative for any complaints or treatment for left wrist disability. Service treatment records from his second period of service (October 16, 1981, to March 18, 1986) reflect complaints and treatment for left wrist disability, to include undergoing three wrist surgical procedures. In February 2011, the Veteran testified that he began having additional problems with his left wrist in 1979, after he had been serving for about a year. See T. at 5. He asserted that due to the physical strain of doing push-ups and being a heavy equipment mechanic it started to wear and tear on the wrist. Id. In light of the Veteran's assertions that he began to experience wrist symptomatology during his first period of service, the Board has determined that the Veteran should be afforded a VA examination to assess whether his left wrist disability pre-existed service and whether it was aggravated beyond the natural progression of the disease during his first period of service. See 38 U.S.C.A. §§ 1111, 1153; 38 C.F.R. § 3.306. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination with a physician with appropriate expertise in order to determine the nature and etiology of his current left wrist disability. It is imperative that the claims file and a copy of this remand be made available to the examiner in connection with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. After reviewing the claims file and examining the Veteran, the examiner should opine as to the following: a) Please state whether the Veteran's left wrist disability clearly and unmistakably pre-existed his first period of active service (October 16, 1978, to October 15, 1981); b) If the Veteran's left wrist disability pre-existed his first period of active service (October 16, 1978, to October 15, 1981), please state whether his pre-existing left wrist disability underwent a permanent increase in disability during the Veteran's first period of active service (October 16, 1978, to October 15, 1981) beyond any natural progress? If so, does the record contain clear and unmistakable evidence that the worsening was due to the natural progression of the disease? c) If the examiner finds that the Veteran's left wrist disability did not clearly and unmistakably pre-exist service, please state whether it is at least as likely as not (a 50 percent or higher degree of probability) that the Veteran's left wrist disability is due to his first period of active service (October 16, 1978, to October 15, 1981). The examiner should be informed that the Veteran's period of active service from October 16, 1981, to March 18, 1986 was dishonorable and constitutes a bar to VA benefits, and he is not entitled to health care benefits based on this period of service. All opinions and conclusions expressed must be supported by a complete rationale in a report. The examiner should reconcile any opinions with the entrance and service examination reports, service treatment records, post-service medical evidence, and lay statements of the Veteran. If the foregoing question cannot be determined on a medical or scientific basis without resort to speculation, the examiner should clearly and specifically so specify in the examination report, with an explanation as to why this is so. 2. After completion of the above, review the expanded record and adjudicate the claim of service connection for left wrist disability, to include pursuant to § 1153 and § 3.306, in consideration of his first period of active service (October 16, 1978, to October 15, 1981). If the benefit sought is not granted, the Veteran and his attorney should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his attorney have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 Supp. 2012). _________________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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) (2012).