Citation Nr: 1800099 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 14-06 783 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for residuals of heat injuries. 2. Entitlement to service connection for a low back disability. 3. Entitlement to service connection for a left shoulder disability. 4. Entitlement to service connection for a heart disability, to include as secondary to heat injuries. 5. Entitlement to service connection for migraines, to include as secondary to heat injuries. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel INTRODUCTION The Veteran served in the reserves from May 1989 to March 2011. The AOJ has accepted service in April 1990, April 1991 and from July 12, 2002 to July 28, 2002. Although the AOJ has listed service as active duty, service records reflect reserve duty, participations in drills and IADT. The appellant has been granted service connection and is a Veteran. If service connection is based upon ACDUTRA, such service becomes active service, not active duty. These matters are before the Board of Veterans' Appeals (Board) on appeal from June 7, 2013, June 27, 2013 and February 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. A videoconference hearing in this matter was held before the undersigned Veteran's law judge in September 2016. The transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran has alleged that her shoulder disability, low back disability, heat injuries, migraines, and heart condition are potentially due to injuries or events that occurred during her period of Army Reserve service from 1989 to 2011. However, while medical records from this period have been associated with the claims file, the Veteran's only periods of ACDUTRA and inactive duty for training (INACDUTRA) that have been verified are July 12-28, 2002 (during which time the back injury occurred), April 28-29, 1991, and April 10-11, 1990. All periods of ACDUTRA or INACDUTRA must be verified before the Board can determine whether service connection is warranted for a disability that is attributed to Army Reserve service. As such, these issues must be remanded so that appropriate attempts can be made to verify any and all periods of ACDUTRA or INACDUTRA during the Veteran's period of Army Reserve service. The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). There is evidence that the Veteran suffered a heat stroke during training, and the Veteran has a number of symptoms that she asserts are due to disabilities related to residuals from her heat stroke, including migraines and a heart condition. The Veteran has provided a private medical opinion stating that the Veteran's current difficulties with prolonged heat exposure are a result of heat stroke in service. However, no VA examination was provided as to these issues. Therefore it is necessary to remand for a VA examination to determine if the Veteran currently has a heart disability, migraines, or heat injury, and whether any disabilities are causally related to the Veteran's heat stroke during training. The Veteran was provided with a VA examination for her low back pain in November 2012. Since that examination, private treatment records from April 2013 note that the Veteran's low back condition is potentially a result of the Veteran's right hip disability, which is service-connected. Remand is necessary for an examination to determine whether the Veteran's low back disabilities are causally related to the Veteran's fall in service or to the Veteran's service-connected right hip disability. Accordingly, the case is REMANDED for the following action: 1. Contact all appropriate sources in order to verify the Veteran's periods of ACDUTRA and INACDUTRA during her service in the Army Reserves from May 1989 to March 2011. The AOJ shall prepare a list of all periods that are active duty versus acdutra versus inacdutra. If there are errors within the VBMS system that mark periods of active duty when such periods are ACDUTRA, such periods should be corrected. (We find any reliance on the information contained in VBMS to be suspect.) 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed heat injury, migraine, and heart disabilities. The examiner should answer the following questions: a) Identify all current heat injury, migraine, and heart disabilities. b) For all identified disabilities, is it at least as likely as not (a fifty percent probability or greater) that the disability was caused by the Veteran's active duty? A detailed rationale for the opinion must be provided. Attention is invited to August 2007 treatment records noting heat exhaustion. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Schedule the Veteran for a VA examination to determine the nature of the Veteran's claimed low back disability. The examiner should answer the following questions: a) Identify all current low back disabilities underlying the Veteran's complaints of low back pain. b) For all identified disabilities, is it at least as likely as not (a fifty percent probability or greater) that the disability was caused by the Veteran's fall in service? c) For all identified disabilities, is it at least as likely as not (a fifty percent probability or greater) that the disability was caused or aggravated (permanently worsened beyond its natural progression) by the Veteran's service-connected right hip disability? If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of low back disability by the service-connected right hip disability. A detailed rationale for the opinion must be provided. Attention is invited to July 2002 service treatment records of a fall down stairs, a November 2012 VA examination noting a diagnosis of mechanical low back pain, April 2013 private treatment records noting diagnoses of lumbar degenerative disc disease and lumbar spondylosis and relating it to the Veteran's right hip disability, and July 2013 private treatment records showing MRI findings. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. 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. §§ 5109B, 7112. _________________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 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) (2017).