Citation Nr: 1339258 Decision Date: 11/29/13 Archive Date: 12/13/13 DOCKET NO. 10-13 636A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a disability of the right elbow, claimed as a residual of in-service cellulitis of the right elbow. 2. Entitlement to service connection for bilateral foot fungus. 3. Entitlement to service connection for a right ankle disability. 4. Entitlement to service connection for a left ankle disability. REPRESENTATION Appellant (the Veteran) is represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The Veteran had active service from September 1983 to July 1987, with subsequent service in the National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the RO in Muskogee, Oklahoma. The Veteran did not report for a Board hearing that was scheduled to be conducted, via videoconference at the RO in July 2011. To the Board's knowledge, the Veteran has offered no explanation as to why he was unable to appear and he has since not requested another hearing. Accordingly, the Board will proceed to a decision on this appeal as if the hearing request had been withdrawn. See 38 C.F.R. § 20.704(d) (2013) (failure to appear for a scheduled hearing treated as withdrawal of request). In reviewing this case the Board has not only reviewed the physical claims file, but has also reviewed the electronic file on the "Virtual VA" system to insure a total review of the evidence. Additional VA treatment records were associated with the electronic claims file subsequent to the March 2010 statement of the case. The Board has reviewed those records and finds that they are not relevant to the issues on appeal. Accordingly, there is no need for initial consideration of that evidence by the RO, and there is no need to obtain a waiver of the Veteran's right to initial RO consideration of that evidence. The issue of entitlement to service connection for a disability of the right elbow is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. FINDINGS OF FACT 1. No current disability of the right or left ankle disability is related to active duty service; the Veteran was not disabled due to a right or left ankle injury or disease incurred in the line of duty during a period of inactive duty training or active duty for training with the National Guard. 2. A bilateral foot fungus is not related to active duty service; the Veteran was not disabled due to foot fungus incurred in the line of duty during a period of active duty for training with the National Guard. CONCLUSIONS OF LAW 1. A disability of the right ankle was not incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 2. A disability of the left ankle was not incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. Bilateral foot fungus was not incurred in service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is seeking service connection for several disabilities on the basis that they were incurred in or are related to service. The Veteran had two different types of service. He had a period of active duty service from 1983 to July 1987. Subsequently, he served in the National Guard until March 22, 2001. The distinctions in the types of service are crucial in the Board's analysis as to entitlement to service connection as they impact whether the Veteran is legally eligible for VA disability benefits during those periods. They also impact the applicability of certain presumptions regarding service connection. The claimed right and left ankle disabilities and the claimed foot fungus are based on injuries or disease asserted by the Veteran to have been incurred during his service in the Oklahoma Army National Guard. The Veteran does not assert that any of these disorders is related to his active duty service, and a review of the service treatment records does not reveal any pertinent injuries or findings. To have basic eligibility for veterans benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C.A. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C.A. §§ [315], 502, 503, 504, or 505. See 38 U.S.C.A. §§ 101(21), (22)(C); see also 32 U.S.C.A. §§ [315] (providing for detailing of regular members of the U.S. Army and Air Force to duty with the Army or Air National Guard of each State); 502(a)(2) (stating that "each company, battery, squadron, and detachment of the National Guard...shall...participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year"); 503 (providing for participation in field exercises); 504 (dealing with National Guard Schools and small arms competitions); 505 (dealing with U.S. Army and Air Force schools and field exercises). Allen v. Nicholson, 21 Vet. App. 54, 58 (2007). The Veteran's service records do not reflect service on active duty after July 20, 1987. The subsequent period of National Guard service involved monthly periods of inactive duty training and annual periods of active duty for training only. In order to meet the basic eligibility requirements (veteran status) for service connection during non-active duty service, an individual must have become disabled due to an injury or disease incurred in the line of duty during active duty for training or have become disabled due to an injury incurred in the line of duty during inactive duty training. An "injury" includes acute myocardial infarction, cardiac arrest, and cerebrovascular accident. A review of the claim for service connection reveals the Veteran's assertion that he injured his right ankle in July 1996 and that he injured his left ankle in June 1998. He was not specific as to the date of injury or the nature of injury. Service treatment records reveal several ankle injuries during the Veteran's National Guard service. An August 2, 1994 progress note reveals an injury to the right ankle when the Veteran stepped off a board. At that time, the Veteran also recounted an injury to the left ankle the previous November, which he reported was still bothering him. The examination revealed marked swelling and tenderness of the right lateral malleolus (prominence on the outward side of the ankle). There was ecchymosis (bruising or small hemorrhage) both laterally and medially. The X-ray findings are admittedly confusing. At one point, the examiner reported a questionable avulsion fracture of "the right fibula of the left ankle." The Board notes that this description makes no anatomic sense, as there is only one fibula in each lower extremity. Still more confusing, the next sentence is "[t]he x-rays are neg." There is no reference to which X-rays. The examiner's assessment was an avulsion fracture of the right fibula, and a chronic sprain of the left ankle. A November 1995 medical certificate reveals that the diagnosis of avulsion fracture of the right fibula, and chronic sprain of the left ankle had resolved. The Board interprets the reference to avulsion fracture to "the right fibula of the left ankle" to indicate an avulsion fracture of the fibula of the right lower extremity, as this is consistent with the examiner's assessment and the Veteran's account. The Board interprets the reference to negative X-rays as referring to the left ankle, as this is consistent with the examiner's assessment. On July 20, 1996, the Veteran was treated for complaint of a twisted right ankle. He reported that he had fractured his right ankle 2 years prior. He was experiencing sharp pain at the bottom area of the ankle, limited movement from side to side, without limitation in the up and down direction. The examiner noted swelling of the outer aspect of the right ankle without redness. The assessment was reinjury to the right ankle. The following day, the Veteran reported increased stiffness, and the examiner reported decreased dorsiflexion. The assessment was right inversion sprain. A line of duty investigation found that the right ankle sprain was incurred in the line of duty during a period of inactive duty training. On June 5, 1998, the Veteran was treated for right ankle pain after stepping into a hole. X-rays revealed no fracture. The diagnosis was right ankle sprain. A line of duty investigation found that the injury occurred in the line of duty during a period of active duty for training. The Veteran reported to the VA primary care clinic in August 2009 complaining of "chronic bilat ankle pain" and a reported history of bilateral ankle scaphoid fracture in the Army. X-rays revealed minor degenerative changes of the right ankle. The Board notes that, contrary to this assertion, the service treatment records reveal no fracture of the left ankle at any time, but include an August 1994 report indicating that the Veteran had injured his left ankle the prior November. However, X-rays were reported as negative, and the only diagnosis for the left ankle was a sprain. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that, although the Veteran injured his right ankle in the line of duty during a period of inactive duty training in July 1996, and injured his right ankle again in the line of duty during a period of active duty for training in June 1998, neither right ankle injury resulted in a disability. Each was described as a sprain, which subsequently resolved. Therefore, veteran status does not attach to either period of National Guard service. The Board acknowledges that the Veteran fractured his right ankle in August 1994, and that this fracture is presumed to have resulted in a chronic disability. However, the evidence does not establish, and the Veteran does not contend, that this injury occurred during a period of active duty, active duty for training, or inactive duty training. The clinical report, which appears to be from a private physician, simply notes that the Veteran stepped off a board. There is no indication that a line of duty investigation was ever conducted. This is contrasted with the July 1996 and June 1998 injuries, after which the Veteran was treated at service medical facilities and line of duty investigations were conducted. The Board reiterates that it is not enough to show that a disability was incurred while the Veteran was a member of the National Guard. There are specific duty requirements that must be met, and which are not met in the case of the August 1994 injury. Also weighing against a finding that the July 1996 and June 1998 injuries resulted in a chronic ankle disability is the fact that the Veteran reported in a November 1996 medical certificate that he had no current medical problems. Moreover, the Veteran was not treated for ankle complaints for more than 10 years after the June 1998 injury. The Veteran is competent to report his symptomatology and he reported "chronic" bilateral ankle pain to the August 2009 clinician. However, to the extent that this implies ongoing symptoms since the July 1996 and June 1998 injuries, such an implication directly conflicts with an intervening examination report. In November 1999, the Veteran was examined as part of his National Guard obligation. His feet and lower extremities were found to be clinically normal at that time. While a history of a broken ankle was reported, there was no indication or report of ankle complaints at the time of the examination. The Board attaches greater reliability to the November 1999 report, at which time the Veteran was seeking only medical evaluation, than to reports he made to a treatment provider in the context of his claim for disability benefits. It is notable that the only assessment resulting from the August 2009 report is vague multiple complaints, still in process to get VA disabilities upgraded for ankle and right elbow injuries. The Board may properly consider the personal interest a claimant has in his or her own case, but the Board is not free to ignore his assertion as to any matter upon which he is competent to offer an opinion. See Pond v. West, 12 Vet. App. 341, 345 (1999); and see Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). There is no question that the Veteran is competent to relate events as he remembers them. Thus, his competency is not at issue with regard to recounting the ongoing nature of ankle complaints. Rather, it is the accuracy of the Veteran's recent account which the Board finds is lacking. The contradictory November 1999 examination report, and the lack of any subsequent treatment until August 2008 are more convincing than the Veteran's later statements made in support of a claim for monetary benefits. The Board has also considered the potential that the nonservice-connected right ankle avulsion fracture in August 1994 was aggravated during the July 1996 inactive duty training injury, or during the June 1998 active duty for training injury. Regarding the presumption of soundness, for veterans who have achieved "veteran" status through a prior period of service and claim a disability incurred only during a later period of active duty for training or inactive duty training, the presumption of soundness applies only when the veteran has been examined, accepted, and enrolled for service and where that examination revealed no defects, infirmities, or disorders. Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Here, no examination was conducted prior to the July 1996 period of inactive duty training or the June 1998 period of active duty for training. Accordingly, the presumption of soundness does not attach to either period. Moreover, where a claim is based on a period of active duty for training or inactive duty training, the presumption of aggravation is not applicable, even if the claimant has achieved "veteran" status during a prior period of service for the same reasons listed above. Smith v. Shinseki, 24 Vet. App. 40, 48 n.7 (2010). This is because the "active military, naval, or air service" that, under 38 U.S.C.A. § 1153, is a prerequisite for benefits based on a theory of aggravation requires the aggravation to occur "in [the] line of duty" (38 U.S.C.A. § 101(24)(B)). The application of 38 U.S.C.A. § 101(24)(B) requires direct evidence both that a worsening of the condition occurred during the period of active duty for training and that the worsening was caused by the period of active duty for training. As both elements are required under the definition of "in [the] line of duty," just establishing that the condition worsened during service is not enough; thus, the presumption of aggravation does not apply where a claim is based on a period of active duty for training or inactive duty training. Here, although the Veteran sprained his right ankle during the period of inactive duty training in July 1996 and the period of active duty for training in June 1998, the evidence does not reveal any permanent worsening of the pre-existing August 1994 disability. Notably, in 1996, the Veteran was assigned to light duty for only 24 hours after the injury, and a treatment report 2 days later classified the sprain as "[r]esolved." As noted above, following the June 1998 injury, the Veteran was examined in November 1999, at which time, findings for the lower extremities were clinically normal. Based on these findings, the Board concludes that there was no aggravation of the pre-existing nonservice-connected August 1994 right ankle injury by either subsequent injury. As already addressed, in an August 2, 1994 progress note, the Veteran reported a left ankle injury the previous November. As with the August 1994 right ankle injury, the November 1993 sprain of the left ankle did not occur during a period of active duty for training or inactive duty training. Moreover, there is no indication that it resulted in a left ankle disability, and there is no indication that the left ankle was subsequently injured during any period of inactive duty training or active duty for training. Accordingly, there was no incurrence or aggravation of a left ankle disability by service. In sum, the evidence demonstrates that the Veteran sustained a right ankle fracture in August 1994 and a left ankle sprain in November 1993, which were not incurred during a period of active duty for training or inactive duty training. Accordingly, basic eligibility for VA compensation benefits does not attach to those injuries. The Veteran subsequently injured his right ankle during a July 1996 period of inactive duty training and a June 1998 period of active duty for training; however, each injury resolved without residual disability, and the pre-existing injury was not worsened beyond its normal course by either injury. Based on these findings, the Board concludes that service connection for claimed disabilities of the right and left ankle is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against each claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran also asserts that he incurred a bilateral foot fungus in 1998. The Board notes that there is absolutely no reference to this in the clinical records pertinent to service. Findings for the skin were clinically normal in April 1987 (active duty), February 1992, and November 1999. Findings in April 1994 were abnormal, but only for minimal acne of the face. As with the claimed ankle disabilities, even if it were acknowledged that the Veteran incurred a skin disability in 1998, this would not automatically qualify as a service-connected disability. Since diseases are not subject to service connection based on inactive duty training, the Veteran would have to show that he became disabled due to a foot fungus in the line of duty during a period of active duty for training. He has not asserted this and the Veteran's service records do not reflect this. There is no line of duty investigation pertaining to a foot fungus, and there are no treatment records pertaining to a foot fungus. While the Veteran may be competent to identify a foot fungus and the period of time in which it began, he has provided no more than his bare assertion on the claim form that he incurred a foot fungus in 1998. He has not specifically asserted that this was during active duty for training. The Board finds that the weight of the evidence is against the implied assertion that the Veteran became disabled due to a bilateral foot fungus in the line of duty during a period of active duty for training. The weight of the evidence also demonstrates that a foot fungus is not related to the Veteran's active duty service. The Veteran has not asserted this. Moreover, service connection for a foot fungus cannot be based on a period of inactive duty training. As such, the Board concludes that service connection for a bilateral foot fungus is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. The Veteran has not asserted that there was any deficiency in the notice provided to him under the Veterans Claims Assistance Act of 2000. The Veteran has also not identified any additional outstanding evidence that might be pertinent to these claims. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service National Guard and VA treatment records, and the Veteran's written assertions. In remanding the claim of entitlement to service connection for a right elbow disability, the Board also considered whether examinations and opinions are necessary with respect to these claims. The principal distinction is that, although the Veteran sustained right ankle sprains during a period of inactive duty training in July 1996 and during a period of active duty for training in June 1998, "veteran" status does not attach to either period, or to any other period of National Guard service. The Veteran does not dispute the essential facts surrounding the classification of his National Guard service and he has provided no evidence or argument that would establish additional periods of active duty. In essence, resolution of these claims is wholly dependent on interpretation of the applicable laws and regulations pertaining to status as a veteran and basic eligibility for VA benefits. Regarding aggravation of the Veteran's right ankle disability by active duty for training or inactive duty training, the Board also reiterates its findings above that the presumption of soundness and the presumption of aggravation do not attach to any period of the Veteran's service in the National Guard, and that the Veteran bears the burden of establishing both a worsening in the pre-existing ankle injuries and that such worsening was beyond the natural progress of the pre-existing ankle injuries. Accordingly, the Board finds with respect to each of these claims that a VA medical opinion is not necessary under the Veterans Claims Assistance Act of 2000. ORDER Service connection for a right ankle disability is denied. Service connection for a left ankle disability is denied. Service connection for bilateral foot fungus is denied. REMAND The Board notes that, in contrast to the claims for disabilities of the right and left ankle and bilateral foot fungus, which were based on the Veteran's National Guard service, the claim of entitlement to service connection for a right elbow disability is based on an injury incurred while on active duty. Active duty service is sufficient to meet the basic eligibility requirements for VA disability benefits. The Board notes that the RO scheduled VA examinations to evaluate the Veteran's claim of entitlement to service connection for a disability of the right elbow; however, he failed to report for the examination on the date scheduled. The Veteran and his representative have since requested that the examination be rescheduled. The Board notes that the February 2010 examination request listed the Veteran's address in Gould, Arkansas. However, the Veteran submitted his VA Form 9 in April 2010 listing an address in Oklahoma City, Oklahoma. While the Veteran did not specifically assert that he did not receive notice of the examination, it is reasonable to deduce by the change in address that this was the case. The Board finds that good cause has been shown for the failure to appear for the scheduled VA examination, and the Veteran should be afforded an additional opportunity to report for the necessary examination. Accordingly, the issue of entitlement to service connection for a disability of the right elbow is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his claimed right elbow disability. The relevant documents in the claims file should be made available to the VA examiner. Service treatment records reflect that the Veteran injured his right elbow in service in April 1986 during a parachute jump. The assessment was a posttraumatic infection. On subsequent examination, the diagnosis was cellulitis secondary to infection. The Veteran was seen in May 1987 complaining that he had struck his right elbow on a handle and it had become painful to extend. X-rays revealed no fracture. The assessment was a soft tissue injury. On the report of medical history in April 1987, the examiner noted cellulitis of the right elbow - resolved. After active duty, the Veteran was seen in August 1994, at which time the examiner noted a palpable and moveable subcutaneous calcific nodule of the olecranon process (bump of the elbow). The examiner diagnosed olecranon bursitis with calcification. The Veteran was seen in August 2009 complaining of "chronic rt elbow pain." X-rays showed no evidence of fracture or dislocation and the joint was within normal limits. There were mild degenerative changes evident. * The examiner is asked to identify all current disabilities pertaining to the right elbow. * For each disability identified, the examiner is asked to offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50-50 degree of probability) that the disability is etiologically related to the Veteran's active duty service. * Note: The Veteran was only on active duty from September 1983 to July 1987. Subsequent National Guard service is not active duty service. * Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but that the medical evidence for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. 2. Readjudicate the remanded claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claim(s). See 38 C.F.R. § 3.655 (2013). 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. 2011). ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs