Citation Nr: 1803623 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 14-41 076A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right ankle disability. 3. Entitlement to service connection for a left ankle disability. 4. Entitlement to service connection for a bilateral foot disability. REPRESENTATION Veteran represented by: Charles Campbell, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Martz Ames, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1964 to March 1965, with additional periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. 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). The issues of entitlement to service connection for a left ankle disability and a bilateral foot disability are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT A back disability is shown by the competent evidence of record to be related to the Veteran's ACDUTRA. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 101(22), (23), (24), 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a) (2016); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2016); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The Veteran has been diagnosed with arthritis and degenerative disc disease of the spine, satisfying the first element of a service connection claim. The Veteran contends in part that his back disability was incurred due to a motor vehicle accident that occurred on November 13, 1968. The Veteran was not on active duty on that date. However, he was on a period of ACDUTRA. The term "active military, naval, or air service" includes active duty, any period of ACDUTRA which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24) (2012); 38 C.F.R. § 3.6(a), (d) (2017). ACDUTRA includes full-time duty in the Reserves for training. See 38 U.S.C. § 101(22)(C) (2012); 38 C.F.R. § 3.6(c) (2017). To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In this case, the Veteran's service personnel records show that he was on ACDUTRA from November 12, 1968 through December 14, 1968. His service medical records note that he was in an automobile accident on November 13, 1968, which was during his period of ACDUTRA. He subsequently was not retained for Reserve service based upon injuries to his back in the accident. In his June 1969 report of medical history for his annual physical, the Veteran reported that he had recurrent back pain. His back injury was noted and the examining physician stated that the Veteran had an accident that was "not related to military duty." At his December 1969 discharge physical, he was found not qualified for retention due to his back injury. In October 2012, Dr. K. S., a private physician, stated that the Veteran's current back disability was due to his period of service based upon service treatment records from 1969 and 1970. Dr. K. S. stated that moderate degenerative changes were present by x-ray in those records, which described the Veteran's November 13, 1968 automobile accident and back injury. Although it appears that Dr. K. S. mistakenly thought that the Veteran was on active duty at that time, it does not reduce the probativity of her opinion because the Veteran was on ACDUTRA when he sustained his back injury. Her opinion is supportive of the Veteran's claim. The March 2013 VA examiner provided a negative opinion based upon the fact that the Veteran was not on active duty at the time of his injury. She stated that Dr. K. S.'s opinion was of limited value because she appeared to think the Veteran was on active duty at the time of his injury. As noted above, this does not reduce the probativity of Dr. K. S.'s opinion. Dr. K. S.'s positive opinion is more probative than the findings of the March 2013 VA examiner. The preponderance of the evidence supports the conclusion that the Veteran became disabled due to an injury during a period of ACDUTRA. Service connection is granted. ORDER Service connection for a back disability is granted. REMAND In the July 2013 rating decision the RO denied service connection for the Veteran's back disability, right ankle disability, left ankle disability, and flat feet disability. The Veteran filed a Notice of Disagreement (NOD) in July 2013 expressing his disagreement with the entirety of the July 2013 rating decision. However, in the December 2014 Statement of the Case (SOC) the RO only addressed two of the Veteran's claims, service connection for a back disability and a right ankle disability. Applicable law demands that the RO respond to all appealed issues. See Manlicon v. West, 12 Vet. App. 238 (1999). Thus the Board finds a remand is necessary for the RO to provide an SOC for the issues of entitlement to service connection for a left ankle disability and for a flat feet disability. However, the Board emphasizes that the Veteran must perfect his appeal in order to obtain appellate review. See 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202 (2017). A VA examination for the Veteran's right ankle disability is needed because the record as it stands is not sufficient for the Board to decide this claim. On remand, the VA examiner should address the Veteran's contention that carrying heavy equipment during training caused his right ankle disability. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Issue a Statement of the Case, accompanied by notification of his appellate rights, which addresses the issues of entitlement to service connection for a left ankle disability and flat feet. 2. Schedule the Veteran for an examination with an appropriate clinician for his right ankle disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide an opinion as to whether it is at least as likely as not that the Veteran's right ankle disability began during active service or a period of ACDUTRA; is related to an incident of service, including his carrying heavy equipment during his ACDUTRA; or if arthritis is diagnosed, began within one year after discharge from active service. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Readjudicate the Veteran's claim for service connection for a right ankle disability. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran 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 (2012). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs