Citation Nr: 18153049 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-15 761 DATE: November 27, 2018 ORDER Entitlement to nonservice-connected pension is denied. Entitlement to service connection for a sinus disability is denied. Entitlement to service connection for a tumor is denied. Entitlement to service connection for spot on skin is denied. Entitlement to service connection for bone pain is denied. Entitlement to service connection for a spinal cord disability is denied. Entitlement to service connection for high blood pressure is denied. Entitlement to service connection for an eye disability is denied. Entitlement to service connection for a cardiological disability is denied. Entitlement to service connection for a disability characterized by lack of balance is denied. Entitlement to service connection for a cervical spine disability is denied. Entitlement to service connection for allergic rhinitis is denied. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for sleep apnea is denied. FINDINGS OF FACT 1. The appellant served on ACDUTRA from July 28, 1980, to October 4, 1980; and the record contains no indication that he is disabled from any disease or injury incurred during that period. He does not have any other period of active service. 2. A sinus disability did not have its onset during active service and is not etiologically related to active service. 3. A tumor did not have its onset during active service and is not etiologically related to active service. 4. A spot on skin did not have its onset during active service and is not etiologically related to active service. 5. Bone pain did not have its onset during active service and is not etiologically related to active service. 6. A spinal cord disability did not have its onset during active service and is not etiologically related to active service. 7. High blood pressure did not have its onset during active service and is not etiologically related to active service. 8. An eye disability did not have its onset during active service and is not etiologically related to active service. 9. A cardiological disability did not have its onset during active service and is not etiologically related to active service. 10. A disability characterized by lack of balance did not have its onset during active service and is not etiologically related to active service. 11. A cervical spine disability did not have its onset during active service and is not etiologically related to active service. 12. Allergic rhinitis did not have its onset during active service and is not etiologically related to active service. 13. Bilateral hearing loss did not have its onset during active service and is not etiologically related to active service. 14. Diabetes mellitus did not have its onset during active service and is not etiologically related to active service. 15. Sleep apnea did not have its onset during active service and is not etiologically related to active service. CONCLUSIONS OF LAW 1. The criteria for entitlement to nonservice-connected pension benefits have not been met. 38 U.S.C. §§ 101, 1521 (2018); 38 C.F.R. §§ 3.2, 3.3, 3.6 (2018). 2. The criteria for entitlement to service connection for a sinus disability have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 3. The criteria for entitlement to service connection for a tumor have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for entitlement to service connection for spot on skin have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 5. The criteria for entitlement to service connection for bone pain have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 6. The criteria for entitlement to service connection for a spinal cord disability have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 7. The criteria for entitlement to service connection for high blood pressure have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 8. The criteria for entitlement to service connection for an eye disability have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 9. The criteria for entitlement to service connection for a cardiological disability have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 10. The criteria for entitlement to service connection for a disability characterized by lack of balance have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 11. The criteria for entitlement to service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 12. The criteria for entitlement to service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 13. The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 14. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 15. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. §§ 1101, 1131, 1112, 1116, 1154, 5107 (2018); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the Puerto Rico Army National Guard from January 1980 to September 1980, with a period of active duty for training (ACDUTRA) from July 28, 1980, to October 4, 1980. This matter comes before the Board of Veterans’ Appeals (Board) from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appellant withdrew his request for a Central Office hearing before a Veterans Law Judge in October 2018. 38 C.F.R. § 20.704(e). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a veteran must show: ‘(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’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term “veteran” is defined 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. 38 U.S.C. § 101 (2). “Active military, naval, and air service” includes “active duty,” which is defined as full-time duty in the Armed Forces. 38 C.F.R. § 3.6(a), (b). The “Armed Forces” consist of the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including their Reserve components. 38 C.F.R. § 3.1. “Active duty for training” is defined, in part, as full-time duty in the Armed Forces performed by Reserves for training purposes, or full-time duty performed by members of the National Guard of any State under 38 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). The term “inactive duty training” is defined as duty (other than full-time duty) performed by a member of the National Guard of any State under 38 U.S.C. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d)(4). In order to have basic eligibility for VA benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States under 10 U.S.C. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Indeed, “members of the National Guard only serve the federal military when they are formally called into the military service of the United States [and that a]t all other times, National Guard members serve solely as members of the State militia under the command of a state governor.” Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003). The evidence of record indicates that the appellant’s only service was with the Puerto Rico Army National Guard. Such service is not considered “active duty” for purposes of VA compensation benefits, as noted above in the definition of “active duty” in 38 C.F.R. § 3.6. Nevertheless, the appellant is shown to have a period of ACDUTRA from July 1980 to October 1980. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty. 38 U.S.C. § 101 (21-24); 38 C.F.R. § 3.6(a). Service connection may accordingly be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. See 38 U.S.C. §§ 101, 106, 1110. As a preliminary matter, the Board notes that evidentiary presumptions, including (1) the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service; (2) the presumption of sound condition at entrance to service; and (3) 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 active duty for training 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 a claim where a veteran served only on ACDUTRA and had not established any service-connected disabilities from that period); see also McManaway v. West, 13 Vet. App. 60, 67 (1999) vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001) (noting that “if a claim relates to period of active duty for training, 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 record establishes that VA undertook appropriate efforts to obtain the appellant’s service treatment records. Following an April 2014 letter from VA, the Puerto Rico Army National Guard stated in an April 2014 memorandum that it was unable to find any medical records relating to the appellant. However, if additional records were obtained, such would be provided to VA. Personnel records have been associated with the claims file, however. The Report of Separation and Record of Service states that the appellant did not complete basic training. VA again contacted the Puerto Rico Army National Guard in June 2014, requesting medical records relating to the appellant. In July 2014, it was determined that the Defense Personnel Records Information Retrieval System (DPRIS) did not contain any records corresponding to the appellant’s Social Security Number. An August 2014 memorandum from the Puerto Rico Army National Guard confirmed that no medical records about the appellant had been found. The appellant was informed via September 2014 letter that it was determined that his service treatment records were unavailable for review. He was provided the opportunity to submit records himself. The appellant has indicated that there would be no medical records from his service in 1980. In correspondence received in September 2014, the appellant stated that, “[a]s for the search in the National Guard did not find any medical record because by that time I was a young and healthy person” [sic]. He indicated that his “health began to decline in 1987,” which he attributed to exposure to toxic materials at Fort McClellan. In support of his contention of exposure to toxins, the appellant submitted internet research, which includes contentions that Agent Orange was present in Fort McClellan, in addition to other toxic materials. In his October 2014 NOD, he reported that his duties at Fort McClellan included cleaning liquids which had spilled out of grey barrels. He stated that such barrels had an orange line in the middle and a skull that said poison. He indicated that he was exposed to “PCV” and that two men in his platoon died in the barracks. He stated that they always wore gas masks and drank water which was contaminated. He indicated that the presence of toxins at Fort McClellan was the reason he received 14 vaccines and the reason the fort eventually was closed. He stated that he began to develop sores on his body in 1987. The appellant contends that he was exposed to Agent Orange while stationed at Fort McClellan in Alabama. The record reflects that the appellant did not serve in Vietnam, Korea, or Thailand. Rather, the evidence of record establishes that he had no foreign service. As such, the provisions related to presumptive exposure to herbicide agents are not for application. See 38 C.F.R. § 3.307(a)(6)(iii)-(v). With respect to the appellant’s contentions that he was exposed to Agent Orange at Fort McClellan, the Board observes that the Department of Defense has registered several locations where herbicide agents, including Agent Orange, were tested or deployed. Fort McClellan is not such a location, nor is any location in Alabama. See e.g. https:// www.publichealth.va.gov/exposures/agentorange/locations/tests-storage/usa.asp (last visited Oct. 30, 2018). While the appellant may believe that he was exposed to Agent Orange, he has provided no more than bare assertions regarding such. The Board assigns far more probative weight to the Department of Defense regarding the presence of Agent Orange at Fort McClellan than to the remote recollections of the appellant, made in the context of a claim for monetary benefits. With respect to the internet research submitted by the appellant in support of his contentions, the Board finds that the authors of such have not been shown to be competent to state whether toxic materials or Agent Orange were present at Fort McClellan. Even if such were present at Fort McClellan, the authors have not been shown to be competent to state whether the appellant himself was personally exposed. The record does not establish exposure to Agent Orange, or any herbicide agents. Thus, the Board finds that the appellant was not exposed to herbicide agents during service. As a result, exposure to Agent Orange cannot serve as an “in-service event or injury” for the appellant’s claims of service connection. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. There is no probative evidence in favor of the claims and no indication that any disease or injury was incurred during his period of ACDUTRA. Indeed, the appellant does not contend otherwise. As noted supra, he stated that his service treatment records would not show anything because he was “young and healthy” and did not have any problems until 1987, seven years following his period of ACDUTRA. Accordingly, such ACDUTRA does not qualify as “active service” under 38 C.F.R. § 3.6. Moreover, the appellant has no other periods of service which meet the definition of “active service.” Without “active military, naval, or air service,” the appellant is not a “veteran” for VA compensation purposes. As such, the claims must be denied as a matter of law. See 38 U.S.C. §§ 101, 106, 1110; 38 C.F.R. §§ 3.1, 3.6, 3.303. Indeed, where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought. Sabonis v. Brown, 6 Vet. App. 426 (1994). Pension As explained above, the Board finds that the service of the appellant does not meet the legal definition of “veteran” for purposes of entitlement to VA benefits. His service records show that he was Puerto Rico Army National Guard, and that he did not serve on active duty. He did serve on ACDUTRA. However, service connection is not established for any disability due to disease or injury incurred in or aggravated by that period of ACDUTRA. Neither is service connection established for a disability due to injury incurred in or aggravated by any period of inactive duty training, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident during such training. Accordingly, he does not qualify as a “veteran” as the law defines that term for VA benefit purposes. As such, the law provides no legal basis upon which to award pension to the appellant. The claim is precluded by law. Sabonis v. Brown, 6 Vet. App. 426 (1994). In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel