Citation Nr: 18159262 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-56 510 DATE: December 19, 2018 ORDER Service connection for residuals of left second metatarsal fracture with metatarsalgia is granted. Service connection for pilar cysts of the scalp, including residuals of removed cysts, is granted. FINDINGS OF FACT 1. The Veteran’s sustained a left second toe fracture during inactive duty training and has metatarsalgia of the left foot secondary to the fracture. 2. Pilar cysts of the scalp had their onset during active service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of left second metatarsal fracture with metatarsalgia are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for pilar cysts are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2001 to April 2002, February 2003 to February 2004, April 2006 to April 2010, July 2011 to December 2011, and June 2013 to January 2014; the Veteran as well had periods of active and inactive duty for training. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) in Pittsburgh, Pennsylvania. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. 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. 38 U.S.C. §§ 101(24), 106, 1110. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as “active military naval, or air service” and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C. § 101(2), (24); Mercado-Martinez v. West, 11 Vet App. 415, 419 (1998). In addition to the above, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether elements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). 1. Entitlement to service connection for a left second toe disability. The Veteran contends that a machine gun fell on his left foot during a period of INACDUTRA causing a current left foot disability. The Board concludes that the evidence supports service connection for residuals of left second toe fracture. The record shows that the Veteran sustained fracture of the left second toe during a period of INACDUTRA and that he has residual metatarsalgia with a slightly deformed toe as a result of that injury. 38 U.S.C. §§ 1110, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). A March 2001 private treatment records shows findings for a “fracture in the left second metatarsal midshaft area consistent clinically with the area that sustained trauma.” The Veteran’s August 2013 notice of disagreement reflects he fractured his toe during military duty. This is corroborated by a September 2016 statement from the Veteran’s squad leader, which reflects that the Veteran’s injury occurred on the “final night of a four-day pre-deployment exercise.” Further, in describing the incident, the squad leader stated that while “cleaning our weapons and packing our gear . . . another member of our squad accidentally dropped an M-249 Squad Automatic Weapon on [the Veteran’s] left foot.” The Veteran was then seen immediately by the unit medic and was told to keep ice on it and to keep the foot elevated. Because statements from the Veteran are consistent regarding his injury and treatment, the Board finds his statements are competent and credible as to his toe injury. See, e.g., November 2016 Form 9 & August 2013 Notice of Disagreement. In this regard, the Veteran states that the toe injury occurred during a pre-deployment training session in March 2001. A November 2005 report of medical history reflects impaired use of his feet; this statement was then elaborated by a physician to mean that he fractured his left second metatarsal while in service. A December 2009 report of medical history similarly reflects history of “fractured a toe on [his] left foot during Army Reserve drills in 2001.” As stated previously, active service includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). In this case, the Veteran’s four-day drill is considered INACDUTRA. When a claim is based on a period of INACDUTRA, there must be evidence that the individual concerned became disabled during the period of INACDUTRA as a result of injury incurred or aggravated in the line of duty. Here, the record shows that the Veteran sustained an injury as claimed in March 2001. This is corroborated by lay and medical evidence. See March 2001 Indiana Medical Record (providing that the Veteran “sustained trauma [in March 2001] when performing military drills . . . [the Veteran] noticed swelling, erythema, and edema.”). In addition, the Veteran has expressly stated in subsequent medical examinations that he incurred a left toe injury during a period of INACDUTRA. See, e.g., November 2005 Report of Medical History & December 2009 Report of Medical History. Moreover, the Veteran’s statements are also independently corroborated by the Veteran’s squad leader. See September 2016 Lay Statement. A July 2010 VA treatment note reflects that “Patient sustained a fracture to the second metatarsal distal aspect of the second metatarsal approximately five years ago and he states that he was not very compliant with nonweight-bearing at that time and ever since the injury, his second toe and third toe have been slightly deformed and do not sit properly.” The note further shows that “He noticed while being in the military and since being out of the military, he is having pain to the left forefoot nearby where the initial injury.” The Veteran was diagnosed with metatarsalgia of the left foot secondary to old metatarsal fracture. Given the lay and medical evidence discussed above, the Board finds that the evidence shows supports that the Veteran sustained a left second metatarsal fracture during INACDUTRA and that he now has metatarsalgia of the left foot secondary to that fracture. Accordingly, the claim is granted. 2. Entitlement to service connection for pilar cysts of scalp. The Veteran asserts that his pilar cysts on the scalp were incurred during his active service. Specifically, he contends that pilar cysts were removed from his scalp multiple times while on active duty. The Board concludes that the Veteran’s pilar cysts of the scalp began during active service. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. The Veteran served on active duty from August 2001 to April 2002, February 2003 to February 2004, April 2006 to April 2010, July 2011 to December 2011, and June 2013 to January 2014; the Veteran as well had periods of active and inactive duty for training. STRs include a November 2005 Army enlistment examination showing a that the Veteran denied a history of cysts. A December 2009 medical history reflect several cysts removed from the scalp. A June 2012 VA examination report shows that the Veteran was diagnosed with pilar cyst to the scalp in April 2012. By history, the Veteran had recurring cyst to the top center scalp during active duty with surgical removal that has recurred 4-5 times. It was noted that the last surgical removal of the cyst was 4 years ago (i.e. 2008). Post-service treatment records document a history of cyst removals from 2012 and continuing to the present day. See September 2012 H & P Note; May 2016 Plastic Surgery Consult. A May 2016 private treatment record shows that three epidermal cysts were removed from the Veteran’s scalp in May 2016. In the operative indications, the surgeon found that the Veteran “has had several [cysts] removed over the years.” Given that the STRs show a negative history of cysts in 2005 and a positive history of cysts in 2009, the Board finds that this suggests service incurrence of cysts of the scalp as described by the Veteran. The June 2012 VA examination does not tend to show otherwise. Additional medical evidence shows that recurring cysts of the scalp remain an ongoing problem. Therefore, affording the Veteran the benefit of any doubt, the Board finds that service connection for pilar cysts of the scalp is warranted. It is noted that the Veteran’s STRs from February 2003 to February 2004 and July 2011 to December 2011 are missing. In such circumstances, VA must employ heightened consideration of the benefit-of-the-doubt standard and rely on the competent and credible reports of medical history and symptoms. Accordingly, the claim is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Griffey, Associate Counsel