Citation Nr: 1329635 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 10-18 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for coronary artery disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The appellant was a member of the Army National Guard for periods from May 1982 to May 1992 and from July 1995 to September 2004, including active duty for training (ACDUTRA) from August 1982 to December 1982, as well as various other periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 RO rating decision. This matter was previously before the Board in December 2012, when it was remanded for additional development. The appellant's May 2010 substantive appeal requested the opportunity to testify before a Board hearing. However, the appellant expressly withdrew his request for a Board hearing in an October 2012 written statement from his appointed representative. The Board observes that the appellant's October 2009 notice of disagreement on this issue appears to include statements raising additional claims of entitlement to service connection, including on the basis of the same Reserve service featured in the issue on appeal. The appellant states: "I believe my coronary artery disease, status post bypass, status post abdominal stent, arthritis, hip and back problems were incurred or, at least, aggravated during my time in the Army National Guard." The appellant also asserted: "[m]y arthritis and hip and back problems were certainly incurred during periods of duty." The issues of entitlement to service connection for a hip disability (to include arthritis) and for a back disability (to include arthritis) have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board also notes that the appellant's October 2009 statement also makes reference to being unable to deploy during service "on several occasions due to extremely high blood pressure." It is unclear whether the appellant intends to also raise a claim of entitlement to service connection for hypertension. The matter of obtaining clarification from the appellant regarding whether he intends to claim entitlement to service connection for hypertension is referred to the AOJ for appropriate action. The Board further notes that it has reviewed all of the evidence in the appellant's claims file and in "Virtual VA" (VA's electronic data storage system), with an emphasis on the evidence relevant to the matter on appeal. 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 The appellant claims entitlement to service connection for coronary artery disease. He primarily contends that hip and leg pain and difficulties he experienced during Reserve service were misdiagnosed as arthritis and, rather, were manifestations of cardiac disease diagnosed within a year of the conclusion of his discharge. As discussed in the introduction section, above, the appellant's October 2009 notice of disagreement raised claims of entitlement to service connection for hip and back disabilities that have not been adjudicated or otherwise addressed by the agency of original jurisdiction. The appellant has not withdrawn these claims. The Board must refer these pending claims to the agency or original jurisdiction for appropriate action to proceed with their development and adjudication. As discussed in more detail below, the Board finds that the pending service connection claims concerning back and hip disabilities are inextricably intertwined with the coronary artery disease issue currently on appeal. Consideration of the coronary artery disease issue must therefore be deferred until the intertwined issues are either resolved or are prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). The pending hip and back disability service connection claims are inextricably intertwined with the coronary artery service connection claim on appeal because a hypothetical grant of either of the pending claims could significantly change the adjudication of the coronary artery disease issue on appeal. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). Accordingly, consideration of the coronary artery disease issue must be deferred until the issues of service connection for hip and back disabilities are decided. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). In brief, a hypothetical grant of the appellant's pending claims of service connection for hip and back disabilities based upon a period of Reserve service that is pertinent to his coronary artery disease claim on appeal would change the nature of that service under applicable law and regulations, such that significantly different law and regulations (including significant presumptions) would apply. At present, the appellant is not service connected for any disability. The Board observes here that the Appellant's DD form 214 and other service personnel records show that his service was active duty for training (with additional periods of inactive duty Reserve service). The appellant is therefore currently not a "veteran" for application of VA laws. The term "veteran" is defined in 38 U.S.C.A. § 101(2) 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." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training (ACDUTRA) 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 training (INACDUTRA) 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); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term INACDUTRA is defined, in part, as duty, other than full- time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA (or INACDUTRA), without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a period of Reserve service, it must first be established that the appellant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. The appellant's pending hip and back disability claims that are referred to the agency of original jurisdiction (and are not on appeal at this time) feature contentions that he was disabled in the line of duty during INACDUTRA; the outcome of adjudication of those claims could result in establishing a period of active military service for the purposes of VA disability benefits analysis and significantly change the considerations involved in adjudicating this appeal. Certain evidentiary presumptions--such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. However, the significance of determining whether the appellant in this case may be a "veteran" for the purposes of considering a pertinent period of service is that the advantages of these evidentiary presumptions do not otherwise extend to those who claim service connection based on a period of ACDUTRA (or 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 ACDUTRA and had not established any service-connected disabilities from that period). Presumptive periods within 12 months after discharge from service for heart disease and hypertension do not apply to periods of ACDUTRA and INACDUTRA and, therefore, do not apply in this appeal as it currently stands. Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Because the outcome of the coronary artery disease issue on appeal may be affected by the outcome of the pending service connection claims for other disabilities being referred for AOJ adjudication, the Board must defer adjudication of this appeal until such time as the inextricably intertwined issues have been addressed by the AOJ. Accordingly, the case is REMANDED for the following action: 1. As they may be intertwined with the issue on appeal, the RO/AMC should complete all appropriate actions to adjudicate the appellant's claim of entitlement to service connection for a back disability and a hip disability. The RO/AMC should also attempt to obtain clarification from the appellant regarding the possible claim of entitlement to service connection for hypertension. If it is determined that the appellant does intend to claim service connection for such a disability, the RO/AMC should complete all appropriate actions to address that claim, which may be intertwined with the issue on appeal. 2. After completion of the above and any other development which the RO/AMC may deem necessary, the RO should review the claims file and undertake a merits analysis to determine if the appellant's claim of entitlement to service connection for coronary artery disease can be granted. If the claim on appeal remains denied, the appellant and his representative 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 appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ ALAN S. PEEVY 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).