Citation Nr: 1448294 Decision Date: 10/30/14 Archive Date: 11/05/14 DOCKET NO. 11-11 978 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for residuals of a right arm injury. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Wilson, Associate Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) from November 1984 to December 1984. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The appellant testified at a hearing before the undersigned Veterans Law Judge in June 2013. This matter was previously before the Board in May 2014, at which time they were remanded for further development. FINDING OF FACT The appellant's right arm disability increased in severity during his period of ACDUTRA. CONCLUSION OF LAW The appellant's preexisting right arm injury was aggravated during ACDUTRA. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2014). REASONS AND BASES FOR FINDING AND CONCLUSIONS Essentially, the appellant asserts that his preexisting right arm injury was aggravated during a period of ACUDTRA. Having considered the evidence, the Board finds that service connection is warranted. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2014). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty for training (INACDUTRA) during which the appellant was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (2014). ACDUTRA includes full-time duty performed by a member of the Army National Guard. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Thus, with respect to the appellant's Army National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304 (2014). The evidentiary presumptions of sound condition at entrance to service and aggravation during service of preexisting diseases or injuries that undergo an increase in severity during service do not extend to those whose service connection claim is based on a period of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 44-45 (2010); 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); Acciola v. Peake, 22 Vet. App. 320, 324 (2008); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70 , for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim."). Here, the appellant contends that although he suffered a fracture of the right wrist prior to service, the condition healed and he was able to perform physical activities and participate in sports prior to entering service. Consistent with this account, a November 16, 1984 service entry reflects that the symptoms of his injury recurred during basic training. Specifically, the report indicates that the appellant did not have any severe medical disabilities or problems upon entrance and documents x-ray findings of an old, well-healed fracture. In addition, the examining clinician documented the appellant's report of pain with limitation of motion and swelling secondary to basic training. The appellant has competently reported having recurrent right arm problems since service. His in-service diagnosis was malunion, proximal radial fracture, which was found to exist prior to service and which the evaluating clinician determined was not aggravated by service. During an August 2014 examination, a VA clinician diagnosed the appellant with fracture of the proximal right radius, malunion, and noted weak right hand grasp, flexion, and extension in addition to mild deformity in the forearm consistent with malalignment. The examiner opined that it was less likely than not that the appellant's current condition was incurred in or caused by the claimed in-service injury, event, or illness. The examiner supported his opinion by explaining that the appellant developed right arm pain in the area of a pre-service malaligned fracture within three days of basic training, but that the underlying etiology of the pain was due to the preexisting condition. Notably, the examiner also opined that the appellant's preexisting condition was not significantly and permanently aggravated by his period of service based on the grounds that "[w]hile there was aggravation of the arm in service, no new injury was diagnosed or noted" and "[n]o treatment was sought postservice." The examiner opined that there appeared to be acute aggravation due to use, but no permanent aggravation due to service. The examiner's report that the appellant's in-service symptoms indicated "acute aggravation" and that the appellant has not experienced "permanent aggravation" shows that the examiner failed to consider the appellant's competent and credible reports that he has experienced symptoms since service. See 38 C.F.R. § 3.303(a) (explaining that determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case.). Thus, the Board affords little probative value to the examiner's findings. See Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) ("the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted"). In light of service records that show that the appellant commenced basic training with a well-healed preexisting injury without residuals, and the appellant's competent and consistent reports of limited function subsequent to enlistment, the Board finds that service connection for aggravation of a preexisting right arm injury is warranted. See 38 U.S.C.A. § 3.303. ORDER Service connection for residuals of a right arm injury is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs