Citation Nr: 18151745 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-37 490 DATE: November 20, 2018 ORDER Entitlement to service connection for a left foot disability is granted. Entitlement to service connection for urinary stress incontinence is granted. Entitlement to service connection for residuals of a miscarriage is granted. Entitlement to service connection for an acquired psychiatric disorder to include as secondary to residuals of a miscarriage is granted. FINDINGS OF FACT 1. The evidence shows that the Veteran’s left foot disability was incurred during and aggravated by her military service including active and inactive duty training. 2. The evidence shows that the Veteran’s urinary stress incontinence was caused by and aggravated by her military service including active duty training. 3. The evidence shows that the Veteran’s miscarriage was incurred during or caused by her military service including inactive duty training. 4. The evidence shows that the Veteran has an acquired psychiatric disorder that was caused by her military service to include as secondary to her service-connected residuals of a miscarriage. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left foot disability have been met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303(a) (2017). 2. The criteria for entitlement to service connection for urinary stress incontinence have been met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303(a) (2017). 3. The criteria for entitlement to service connection for residuals of a miscarriage have been met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303(a) (2017). 4. The criteria for entitlement to service connection for an acquired psychiatric disorder to include as secondary to residuals of a miscarriage have been met. 38 U.S.C. §§ 101, 106, 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303(a), 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2006 through April 2007. The Veteran also served for many years in the Army Reserve before and after this period from 1986 to 2012. This appeal comes to the Board of Veterans’ Appeals (Board) from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection is granted on a direct basis when there is competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service connection may also be granted for a disability that is proximately due to or the result of an established service-connected disability. 38 C.F.R. § 3.310 (2017). This includes disability made chronically worse by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Service connection may be granted for disability resulting from disease or injury incurred during active duty training (ACDUTRA), or injuries suffered during inactive duty training (INACDUTRA) to include when a cardiac arrest or a cerebrovascular accident occurs during such training. See 38 U.S.C. §§ 101(24), 106 (2012). Reserve and National Guard service generally means ACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101 (22) (2012); 38 C.F.R. § 3.6(c) (2017). This includes the two weeks of annual training that each Reservist or National Guardsman must perform each year. It can also include the Reservist’s or Guardsman’s initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23) (2012); 38 C.F.R. § 3.6(c) (2017). This includes the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). In this case, VA made formal findings in March 2012 and September 2012 that many of the Veteran’s service records appear to be lost or unavailable and indicated that future attempts to locate such records would be futile. While the Veteran provided some of the outstanding records, many pertinent records including records of the Veteran’s INACDUTRA and ACDUTRA activities remain missing. In circumstances where the Veteran’s service treatment records are destroyed or lost through no fault of the Veteran, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). 1. Entitlement to service connection for a left foot disability The Veteran asserts that she injured her left foot on the way home from weekend INACDUTRA on September 26, 2004. See, e.g. November 2013 Notice of Disagreement. Treatment records from the Veteran’s podiatrist, B.U., from September 2003 and October 2003 show the Veteran was evaluated and treated surgically for left foot injuries, and subsequent records show she continues to suffer from a left foot disability. See October 2012 VA foot examination. The Veteran contends her military training duties following the initial injury aggravated her condition, and she noted that she observed associated swelling. See Veteran’s October 2012 Statement in Support of Claim. While an October 2012 VA foot examiner opined the Veteran’s left foot disability was not aggravated during her active duty service, the Board must also consider the Veteran’s testimony about the injury’s incurrence during her required reserve training. Ultimately, the Board finds the Veteran’s testimony to be competent and credible and affords her the benefit of the doubt considering VA is unable to locate the Veteran’s complete service records. Accordingly, the Veteran’s claim for entitlement to service connection for a left foot disability is granted. 2. Entitlement to service connection for urinary stress incontinence The Veteran contends that she has urinary stress incontinence that has been caused and aggravated by her military service to include her annual ACDUTRA from 1987 to 1999. See, e.g. November 2013 Notice of Disagreement. In a January 1999 opinion, the Veteran’s treating doctor, R.M., M.D., indicated the Veteran’s urinary stress incontinence was likely aggravated by certain training activities including pushups, sit-ups, and jumping jacks. The Veteran’s incomplete military personnel records confirm she continued to receive orders to attend and credits for annual ACDUTRA after this date although she was restricted from certain strenuous activities. While the October 2012 VA examiner indicated the Veteran’s urinary stress incontinence was not aggravated by her active duty military service beginning in April 2006, the examiner did not adequately address her ACDUTRA. The Board affords more probative value to R.M., M.D.’s opinion regarding the effects of annual training exercises on the Veteran’s disability. Ultimately, the Board finds the Veteran’s statements about her worsening incontinence following such exercises to be competent and credible and affords her the benefit of the doubt considering VA is unable to locate the Veteran’s complete service records. Accordingly, the Veteran’s claim for entitlement to service connection for urinary stress incontinence is granted. 3. Entitlement to service connection for residuals of a miscarriage to include secondary depression The Veteran asserts that she experienced cramps while exerting herself during an INACDUTRA exercise on September 19, 1993, which she indicates was a symptom of a miscarriage diagnosed and treated days later. See Veteran’s July 2016 letter. She asserts her husband also served with her during the training that weekend. The Veteran’s incomplete military personnel records confirm she was scheduled for principal duty with the 5010th USAH in September 1993, but complete records were not maintained. See November 2011 VA Memorandum. An operative report dated September 23, 1993 from R.M., M.D. confirms the Veteran was treated for a miscarriage. Subsequent treatment records from R.M., M.D. support the Veteran’s contention that she was treated for depression and anxiety related to the miscarriage and that she continues to remain on psychiatric mediation to date. See also October 2012 VA examination (indicating that while the Veteran had no apparent compensable physical residuals of her miscarriage at the time, she remained on medication for depression). Ultimately, the Board finds the Veteran’s testimony to be competent and credible and affords her the benefit of the doubt considering VA is unable to locate the Veteran’s complete service records. Accordingly, the Veteran’s claim for entitlement to service connection for residuals of a miscarriage to include secondary depression is granted. REFERRED The issues of entitlement to service connection for rheumatoid arthritis and a heart disability were raised by the Veteran’s July 2016 letter and her November 2013 Notice of Disagreement statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Duffy, Associate Counsel