Citation Nr: 1602709 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 10-15 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right hand disorder, to include carpal tunnel syndrome. 2. Entitlement to service connection for a left foot disorder, to include plantar fasciitis and heel spurs. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD John Kitlas, Counsel INTRODUCTION The Veteran who served on active duty from October 1975 to October 1978, with additional periods of service in the Army Reserves. She was assigned to the Retired Reserves effective from October 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The RO in Roanoke, Virginia, currently has jurisdiction over the Veteran's VA claims folder. In December 2014, the Board remanded this case for further development to include obtaining additional information and records regarding the Veteran's Reserve service. The Board finds that this development has been substantially accomplished. Accordingly, a new remand is not required to comply with the holding of Stegall v. West, 11 Vet. App. 268 (1998). See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (Remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. The preponderance of the competent medical and other evidence of record is against a finding the Veteran's current disabilities of the right hand and left foot were incurred in or otherwise the result of her October 1975 to October 1978 period of active duty. 2. The competent and credible evidence of record reflects carpal tunnel syndrome of the right hand, as well as plantar fasciitis and heel spurs of the left foot, developed outside of the Veteran's Reserve duty and were not aggravated as a result thereof. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for a right hand disorder, to include carpal tunnel syndrome, are not met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.306 (2015). 2. The criteria for a grant of service connection for a left foot disorder, to include plantar fasciitis and heel spurs, are not met. 38 U.S.C.A. §§ 101, 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.303, 3.306 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters The Board notes at the outset that VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). The United States Court of Appeals for Veterans Claims (Court) has held that adequate notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In this case, the Veteran was sent pre-adjudication notice via a letter dated in February 2008, which is clearly prior to the August 2008 rating decision that is the subject of this appeal. She was also sent additional notification via letters dated in November 2009 and February 2015, followed by readjudication of the appeal by the March 2010 Statement of the Case (SOC) and various Supplemental SOCs (SSOCs). These letters, in pertinent part, informed the Veteran of what was necessary to substantiate her current appellate claims, what information and evidences she must submit, what information and evidence will be obtained by VA, as well as the information and evidence used by VA to determine disability rating(s) and effective date(s) should service connection be established. In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate her claims and the avenues through which she might obtain such evidence, and of the allocation of responsibilities between herself and VA in obtaining such evidence. Accordingly, there is no further duty to notify. In any event, the Veteran has not demonstrated any prejudice with regard to the content or timing of any notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (Reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). In addition, the Board finds that the duty to assist a claimant in the development of his or her case has been satisfied. The available service treatment records and post-service medical records are on file. The Board further notes that the Veteran has had the opportunity to present evidence and argument in support of her claims, and nothing indicates she has identified the existence of any available, relevant evidence that has not been obtained or requested. For example, she has not identified outstanding evidence which relates the etiology of her current right hand and left foot disorders to here military service to include the Reserves. Although no VA examination was accorded to the Veteran, the Board finds that no such development is warranted based upon the facts of this case. In pertinent part, there is medical evidence which diagnoses the current disabilities but, as detailed below, the record does not indicate it is due to her October 1975 to October 1978 period of active duty; nor indicates they were incurred in or aggravated by her Reserve service. Only the Veteran's contentions indicate a relationship with service, which is insufficient to trigger an examination since in these circumstances the validity of the assertions would require competent medical evidence. In view of the foregoing, the Board finds that the duty to assist the Veteran has been satisfied in this case. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Legal Criteria and Analysis 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). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary flare-ups will not be considered to be an increase in severity. Hunt v. Derwinski, 1 Vet. App. 292, 295 (1991). Active service includes any period of active duty for training (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 training during which the veteran 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). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty, other than full-time duty, prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard. 38 U.S.C.A. § 101(26), (27). The Board notes that the service treatment records for the Veteran's October 1975 to October 1978 period of active duty reveal no relevant complaints or findings. In fact, the Veteran's feet, and her lower and upper extremities were all clinically evaluated as normal on her October 1978 expiration of term of service examination. Further, the first competent medical evidence of the claimed disabilities appears to be years after this period of active duty. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.). Moreover, the Veteran does not contend that these disabilities developed as a result of her October 1975 to October 1978 period of active duty. Rather, as discussed below, she contends they developed years after this period due to incidents that occurred during Reserve duty. In view of the foregoing, the Board concludes the preponderance of the competent medical and other evidence of record is against a finding the Veteran's current disabilities of the right hand and left foot were incurred in or otherwise the result of her October 1975 to October 1978 period of active duty. Regarding the Veteran's Reserve service, she has contended, in essence, that her left foot disability is related to a period of ACDUTRA in 2001 and that she was found medically disqualified for the Reserves due to foot problems. She also contends that her current right hand disability is related to a hand injury she sustained during a weekend drill in 2005. The Board acknowledges that the Veteran is competent, as a lay person, to describe left foot and right hand problems, to include an injury to the right hand. Notably, medical records dated in July 2001, show the Veteran was undergoing a "re-evaluation" of a profile for plantar fasciitis. This obviously shows an onset prior to July 2001, and it is significant this record does not suggest a cause stemming from an injury on active duty for training or inactive duty training, or that there was any increase in severity of the condition during such a period of service. Other records indicate that she was treated for right hand complaints by a private clinician, ultimately diagnosed as carpal tunnel syndrome, beginning in 2005. These do not reference any injury or relationship to Reserve duty, as one would expect if that were the case. Thus, none of the medical records indicate the disabilities at issue originated during a period of Reserve service, i.e., on active duty for training or inactive duty training. The Board further notes that the advantages of certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, and the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service - do not extend to those who claim service connection based on a period of ACDUTRA or inactive duty training. 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); McManaway v. West, 13 Vet. App. 60, 67 (1999) (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.'). The Board also notes that nothing in the available service treatment records for the Veteran's Reserve service, nor the other competent medical evidence of record, finds that her plantar fasciitis and heel spurs of the left foot or her right carpal tunnel syndrome were aggravated on a period of active duty for training or inactive duty training. The existence of the disabilities during any such period of service, is not the equivalent of an aggravation of them. Although the Veteran contends such to be the case, the issue of whether symptoms of a pre-existing condition have been aggravated for VA purposes involves complex medical issues that generally requires competent medical evidence to resolve. Here, nothing on file shows that the Veteran has the requisite knowledge, skill, experience, training, or education to render a medical opinion. Consequently, her contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). In view of the foregoing, the Board concludes the competent and credible evidence of record reflects carpal tunnel syndrome of the right hand, as well as plantar fasciitis and heel spurs of the left foot, developed outside of the Veteran's Reserve duty and were not aggravated as a result thereof. No other basis for establishing service connection for the claimed disabilities is otherwise demonstrated by the evidence of record, to include the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309 or as secondary to a service-connected disability pursuant to 38 C.F.R. § 3.310. For these reasons, the Board finds the preponderance of the evidence is against the Veteran's service connection claims. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert, supra; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Consequently, the benefit sought on appeal with respect to these claims must be denied. ORDER Service connection for a right hand disorder, to include carpal tunnel syndrome, is denied. Service connection for a left foot disorder, to include plantar fasciitis and heel spurs, is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs