Citation Nr: 1803228 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 14-11 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disability, to include depression and anxiety. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for a thoracolumbar spine disability. 4. Entitlement to service connection for a cervical spine disability. ATTORNEY FOR THE BOARD J. Gallagher, Associate Counsel INTRODUCTION The appellant served a period of active duty for training (ACDUTRA) in the National Guard from September 1986 to January 1987. This appeal is before the Board of Veterans' Appeals (Board) from a January 2012 rating decision of the abovementioned Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. An acquired psychiatric disability is not related to an in-service event, injury, or disease. 2. A right shoulder disability is not related to an in-service event, injury, or disease. 3. A thoracolumbar spine disability is not related to an in-service event, injury, or disease. 4. A cervical spine disability is not related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include depression and anxiety have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 3. The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). 4. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant claims service connection for depression, anxiety, and disorders of the back, neck, and right shoulder. In his March 2011 claim, the appellant reports that these disabilities were incurred during service with the National Guard from 1984 to 1986. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to qualify for VA benefits, a claimant must be a veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "veteran" is one of the five elements of a claim for service-connection benefits). One of the benefits administered by VA that is reserved specifically for veterans is disability compensation. Accordingly, in order to establish his entitlement to disability compensation benefits, he or she must first establish "veteran" status. The term "veteran" is defined in 38 U.S.C. § 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 (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and (3) 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. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The presumptions of soundness, aggravation, or for presumptive diseases do not attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). 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 such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. In addition, the presumption of service connection for certain chronic diseases, such as osteoarthritis or psychosis, manifesting to a degree of 10 percent within one year following discharge from service, is not available for claims based on periods of ACDUTRA. See 38 C.F.R. § 3.307(a)(1). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Board notes that the appellant's service treatment records, with the exception of a single record of his September 1986 initial dental processing, are not associated with the claims file. Additionally, although in August 2011 VA received from the Personnel Information Exchange System (PIES) verification of the appellant's ACDUTRA period (though the dates do not match those reported in his claim), VA has been unable to obtain a form DD-214. VA issued a formal finding regarding the unavailability of these documents in December 2011. In letters dated July 2011 and January 2012, the appellant was informed that VA had been unable to obtain these records records, and that further evidence corroborating his in service injuries should be submitted if available. The appellant replied to the initial letter in August 2011 stating that he did not possess such records. The Board is mindful that, in a case such as this, where some service treatment records are unavailable, there is a heightened obligation to explain our findings and conclusions and to consider carefully the benefit-of-the-doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). While it is unfortunate that the appellant's service treatment records are unavailable, this appeal must be decided on the evidence of record and, where possible, the Board's analysis has been undertaken with this heightened obligation set forth in Cuevas and O'Hare in mind. In a February 2011 letter, the appellant's private treating physician explained that he had a history of nervous disease and problems with his back, neck, and right shoulder. She stated that his symptoms started while in service and continued to worsen as he was subjected to ridicule, racial discrimination, and the stress of training. He had reported that he got into a convoy with the wrong unit, and soldiers began to mock him. He reacted poorly and threw himself out of the moving vehicle, injuring his shoulder, neck, and back, which led to current chronic inflammatory changes and degenerative problems. Following the incident with the truck, the appellant reported that he had been admitted to a psychiatric unit. The physician listed numerous current psychiatric symptoms. In March 2014 VA noted in the claims file that despite the appellant's statement that he received treatment from the San Juan VA Medical Center, there was no record of such treatment. In multiple statements, the appellant reported being kept in a psychiatric ward during service. In January 2012 he stated that he needed help and it was very wrong for him to have been sent home. Similarly, in April 2017 he stated that he was sent away when he should have been kept for treatment. On multiple occasions the appellant requested that he be provided with VA examinations. VA has a duty to provide a medical examination where there is (1) competent evidence of a current disability or symptoms thereof; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability is associated with service; and (4) insufficient competent medical evidence to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i). As explained below, the Board finds that the evidence does not establish an event, injury, or disease that occurred in service. VA therefore has no duty to provide a medical examination. The Board finds that the evidence weighs against a finding of an event, injury, or disease that occurred during his period of ACDUTRA. Unfortunately, very little evidence regarding the appellant's period of ACDUTRA has been able to be located. While the Board has a heightened duty to consider the benefit-of-the-doubt rule in this case, the evidence consists entirely of the appellant's unreliable statements. In his claim, he stated that he served in the National Guard from 1984 to 1986, but the only period of verifiable service is from September 1986 to January 1987. The only actual record of this service that has been located is a dental attendance record which notes a single initial processing appointment in September 1986. The lack of a DD-214 makes unclear the circumstances of the appellant's discharge. VA has taken all the necessary steps to obtain these records, but they are still absent. Absent such corroboration, the only remaining evidence is the appellant's statements, both directly to VA and as recounted by his private treating physician. His inability to remember the year he was inducted into service undermines the credibility of accounts which on their face seem unlikely and improbable. For these reasons, the Board finds that the evidence weighs against a finding of an event, injury, or disease that occurred during his period of ACDUTRA, and service connection for all claimed disabilities is therefore denied. ORDER Service connection for an acquired psychiatric disability, to include depression and anxiety, is denied. Service connection for a right shoulder disability is denied. Service connection for a thoracolumbar spine disability is denied. Service connection for a cervical spine disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs