Citation Nr: 18156297 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-55 098 DATE: December 11, 2018 ORDER Service connection for residuals of a gunshot wound to the head, to include a bilateral eye disorder, is denied. FINDINGS OF FACT 1. The Veteran has a current diagnosis of traumatic optic neuropathy with blindness in the right eye and poor vision in the left eye (bilateral eye disorder). 2. The Veteran did not sustain a gunshot wound to the head with residual bilateral eye disorder during any period of active service, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA). CONCLUSION OF LAW The criteria for service connection for residuals of a gunshot wound to the head, to include a bilateral eye disorder, have not been met. 38 U.S.C. §§ 101, 1110, 1112, 5103(a), 5103A, 5107(b); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran, who is the Appellant, served on active duty from July 1997 to October 1999, and had periods of ACDUTRA and INACDUTRA from October 1999 to November 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision from the Regional Office (RO), which, in pertinent part, denied service connection for residuals of a gunshot wound, to include right eye blindness. Since issuance of the statement of the case (SOC) in October 2016, additional evidence has been received by the Board. The Veteran’s substantive appeal via VA Forms 9 was received after February 2, 2013 (received by VA in November 2016); therefore, this evidence is subject to initial review by the Board unless the Veteran explicitly requests consideration by the Agency of Original Jurisdiction, which has not been requested in this case. 38 U.S.C. § 7105(e). As such, the Board may consider this evidence in the first instance. The Board finds that the duties to notify and assist the appellant in this case have been fulfilled. Neither the appellant nor the evidence has raised any specific contentions regarding the duties to notify or assist. 1. Service Connection for Residuals of a Gunshot Wound to the Head, to include Bilateral Eye Disorder The Veteran generally contends that service connection for residuals of a gunshot wound to the head, including right eye blindness, is warranted. Specifically, the Veteran contends that on March 31, 2000, while enlisted in the Washington Army National Guard (ANG), he sustained a gunshot wound to the head that caused blindness in the right eye. The Veteran asserts that he was on active duty in the Washington ANG at the time; however, the injury occurred in North Carolina while he was on military leave orders. See December 2016 lay statement. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires evidence of: (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 in or aggravated by service. Active military, naval, or air service includes any period of 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 INACDUTRA during which the individual concerned was disabled or died from injury, not diseases, incurred in or aggravated in the line of duty, or an acute myocardial infarction, cardiac arrest, or cerebrovascular accident during INACDUTRA. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is, generally, full-time duty in the Armed Forces performed by reserves for training purposes. 38 C.F.R. § 3.6(c)(1). VA’s General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. The presumptive provisions of “chronic” in-service symptoms and “continuous” post service symptoms do not apply to periods of ACDUTRA or INACDUTRA. See Biggins, 1 Vet. App. at 477-78; Smith v. Shinseki, 24 Vet. App. 40 (2010); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Therefore, consideration of the provisions of 38 C.F.R. §§ 3.303(b), 3.307 and 3.309 (presumption of service incurrence for certain diseases) for any periods of ACDUTRA and/or INACDUTRA is not appropriate. The Veteran is currently diagnosed with traumatic optic neuropathy with right eye blindness and poor vision (light perception with 20/400 visual acuity) in the left eye. See April 2000, August 2000 Social Security Administration (SSA) records. After reviewing all the lay and medical evidence, the Board finds that the current residuals of a gunshot wound to the head, to include a bilateral eye disorder, were not incurred during a period of active service, ACDUTRA, or INACDUTRA. A review of the service treatment and personnel records does not reflect evidence of a gunshot wounds to head during active service from July 1997 to October 1999. Service treatment and personnel records reveal that the Veteran was enlisted in the Washington ANG from October 1999 to November 2000. On March 31, 2000, the Veteran sustained a gunshot wound to the head with a small entrance wound over the left cheek and exit wound in the right forehead. Service treatment records reflect treatment for residual optic neuropathy bilaterally with blindness in the right eye and poor vision in the left eye following the gunshot wound injury. See April 2000, August 2000. The Veteran asserts that the gunshot wound injury occurred while visiting a park in North Carolina with friends when he was on military leave orders from the Washington ANG; however, the Veteran contends that he was on active duty for the Washington ANG ARG at the time. December 2016 lay statement. The Veteran’s lay statements are inconsistent with and outweighed by other credible evidence of record. Although service personnel records show that the Veteran was enlisted in the Washington ANG in March 2000, the record does not show that the Veteran had been activated to active duty status and was on authorized military leave, or that the gunshot wound injury occurred during ACDUTRA or INACDUTRA. Service treatment records show that Veteran’s commanding officer reported that the injury occurred in North Carolina while the Veteran was not in a military status. See August 2000, September 2000. As such, the evidence shows that the gunshot wound to the head was not incurred during any period of active service, ACDUTRA, OR INACTDUTRA. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that residuals of a gunshot wound to the head, to include a bilateral eye disorder, was not incurred in or otherwise caused by active service, as the evidence does not show injury or occurrence of the disability during any period active service, ACDUTRA, or INACDUTRA. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Moore, Associate Counsel