Citation Nr: 18156967 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-22 641 DATE: December 11, 2018 ORDER As new and material evidence has been received, the claim for service connection for a back disorder is reopened, and the appeal is granted to this extent only. REMANDED Entitlement to service connection for a back disorder is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a psychiatric disorder to include a sleep disorder is remanded. FINDINGS OF FACT 1. An April 1993 rating decision denied service connection for a back disorder. The appellant did not submit a timely notice of disagreement and the April 1993 rating decision is final. 2. The additional evidence received since the April 1993 rating decision is new and material. CONCLUSIONS OF LAW 1. The April 1993 rating decision that denied service connection for a back disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence to reopen the claim for service connection for a back disorder has been presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant was a member of the Army National Guard from June 1980 to February 1981. The Board notes that the certification of appeal indicates that the issue of whether the appellant has status as a Veteran to entitle him to VA compensation benefits is the issue that has been certified to the Board for review. The Board notes further that the statement of the case (SOC) and the appellant’s subsequently filed substantive appeal both address the issues of service connection for a back disorder, headaches, sleep apnea, and a psychiatric disorder to include a sleep disorder. The Board finds that these issues are properly on appeal because the issue of the appellant’s status as a Veteran is an underlying and intertwined issue that is usually addressed as part and parcel of a service connection case where the appellant’s service consists only of National Guard or Reserve service. In his April 2016 VA Form 9, Substantive Appeal to the Board, the appellant requested a Department of Veterans Affairs (VA) Board of Veterans’ Appeals (Board) videoconference hearing. Then in a May 2017 statement, the appellant explicitly withdrew his request for a Board videoconference hearing. Accordingly, the Board considers his request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(d), (e). Whether new and material evidence has been received to permit reopening a claim of entitlement to service connection for a back disorder A rating decision is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error where a notice of disagreement or material evidence was not received within one year of notification of the decision. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. There is a low threshold to raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273 (1996); Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The April 1993 rating decision denied service connection for a low back disorder because while the appellant reported an injury to his back during a period of inactive duty training there was no nexus between the appellant’s claimed back condition and his service. The appellant did not submit a timely notice of disagreement and the April 1993 rating decision is final. The evidence considered in the April 1993 rating decision includes service treatment records, a VA examination report, and written statements from the appellant. New and material evidence pertaining to the issue of entitlement to service connection for a back disorder was not received by VA or constructively in its possession within one year of written notice to the appellant of the April 1993 rating decision. Therefore, that decision became final. 38 C.F.R. § 3.156(b). The additional evidence received since the April 1993 rating decision includes an April 2016 VA examination and treatment records and written statements from the appellant. The appellant’s new treatment records, statements and April 2016 VA medical examination raise a reasonable possibility of substantiating the claim for service connection when considered with the evidence previously of record. The April 2016 VA medical examination addresses the issue of whether there is a nexus between the appellant’s reported back injury during service and his current degenerative disc disease of the spine. As new and material evidence has been received, the claim of entitlement to service connection for a back disorder is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disorder is remanded. 2. Entitlement to service connection for headaches is remanded. 3. Entitlement to service connection for sleep apnea is remanded. 4. Entitlement to service connection for a psychiatric disorder to include a sleep disorder is remanded. Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the claimant has the claimed disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). That said, there is no presumption of soundness for active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) service, only active duty (AD), also no presumption of aggravation or presumptive service connection for those other types of service. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. 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); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to 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); 38 C.F.R. § 3.6(d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. To establish status as a “Veteran” based upon a period of ACDUTRA, a claimant must establish that she 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). The fact that a claimant establishes status as a “Veteran” for purposes of other periods of service (e.g., AD) does not obviate the need to establish that he/she is also a “Veteran” for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for a claimant to achieve “Veteran” status and be eligible for service connection for disability claimed during his/her inactive service, the record must establish that he/she was disabled from an injury, but not disease, incurred or aggravated during INACDUTRA. See Mercado- Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). The Board notes that the Agency of Original Jurisdiction has made several attempts to obtain the appellant’s complete service information including complete service personnel and treatment records. The Board finds that is it unclear from the record whether the appellant’s service includes both periods of ACDUTRA and INACDUTRA. As the appellant’s eligibility for compensation benefits depends on the nature and character of the appellant’s service, additional information should be obtained on remand. The appellant’s service treatment records show that he complained of mid-back pain in January 1981. He stated that he had the mid-back pain after slipping and falling on his back. He was diagnosed with a contusion and a mild lumbosacral sprain. He repeatedly requested a medical discharge but was told that his back problem could be resolved. The appellant was afforded a medical examination in May 1992 in connection with his Social Security Administration (SSA) claim. The physician opined that the appellant had low back pain of an undetermined etiology. However, the physician requested that SSA pay for a MRI to further determine the etiology of the appellant’s back pain. Therefore, this opinion is incomplete and will not be relied upon in this assessment. The appellant was afforded a VA medical examination in April 2016. The examiner noted that the appellant’s medical records, including SSA records, were incomplete in his claims file. The examiner recommended that the appellant’s full SSA records be obtained. Since the April 2016 VA medical examination, the appellant’s SSA records have been obtained and associated with the appellant’s claims file. Therefore, the appellant’s claims file should be returned to the VA examiner for an addendum opinion. As for the remaining claims of service connection for headaches, sleep apnea, and a psychiatric disorder to include a sleep disorder, the basis of the appellant’s claim is not clear from the record. It is not apparent whether the appellant is asserting that these disabilities manifested while on a period of ACDUTRA or INACDUTRA in the National Guard or are related to his back disorder. On remand, the AOJ should seek clarification/information from the appellant as to the basis of these claims, i.e., date on onset, whether secondary service connection is being claimed. The matters are REMANDED for the following action: 1. Request information/clarification from the appellant as to the basis of his claims for service connection for headaches, sleep apnea, and a psychiatric disorder to include a sleep disorder and to include whether he is claiming direct and/or secondary service connection, and the purported date on onset of such disabilities to include during a specified period of ACDUTRA or INACDUTRA. 2. Perform the necessary steps and contact the appropriate sources to verify the dates of the appellant's periods of ACDUTRA and INACDUTRA with the Army National Guard from June 1980 to February 1981. A formal finding memorandum should be prepared if those dates cannot be verified. 3. Return the examination report and claims file to the examiner who conducted the April 2016 VA examination (or another appropriate examiner if unavailable) for an addendum opinion. Is it at least as likely as not that the appellant’s current thoracic and lumbar degenerative joint disease had its onset in service and specifically the January 1981 back injury in service, or is otherwise related to a qualifying period of service? A complete rationale should be provided for all opinions expressed. If the VA examiner finds that he or she must resort to speculation to render the requested opinion, he or she must state, with specificity, why this would require resort to speculation. (Continued on the next page)   4. If this remand action results in verification of additional qualifying periods of service, ensure that all indicated action/development is accomplished on remand with respect to the other claimed disabilities (headaches, sleep apnea, and psychiatric disorder). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke