Citation Nr: 18159875 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 09-34 012 DATE: December 20, 2018 ORDER Service connection for a low back condition is denied. Service connection for a heart condition is denied. REMANDED The issue of entitlement to service connection for residuals of an ischemic stroke is remanded. The issue of entitlement to service connection for a prostate condition is remanded. The issue of entitlement to service connection for left leg arthritis is remanded. The issue of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to nonservice-connected pension is remanded. FINDINGS OF FACT 1. The probative evidence does not support a finding that the Appellant’s current low back pain causes functional impairment that affects his earning capacity or that he injured his low back in the line of duty during a period of ADT. 2. The probative evidence does not support a finding that a heart condition was incurred in or aggravated in the line of duty during a period of ADT. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a heart condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served in the Army Reserve between July 1986 and July 1994 with active duty for training (ADT) from October 7, 1986 to March 14, 1987. He also served in the Navy Reserve between February 2003 and November 2003 and in the Army National Guard between September 2004 and June 2005. From October 25, 2004 to November 26, 2004, he was assigned to active duty for special work (ADSW) as a recruiter which the Department of Veterans Affairs (VA) has determined was ADT. In April 2012, the claims were remanded by the Board of Veterans’ Appeals (Board) to schedule the Appellant for a requested hearing. In June 2014, the Appellant testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the electronic claims file. In March 2018, the Board remanded the claims again for further development regarding the Appellant’s military service. Service connection may be established for a disability resulting from a disease or injury which was clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). As a threshold matter, veteran status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is “axiomatic that, to receive VA disability compensation benefits, an appellant must first establish veteran status”); see also 38 U.S.C. §§ 1110, 1131. The term “veteran” is defined, in relevant part, as “a person who served in the active military, naval, or air service.” 38 U.S.C. § 101 (2); 38 C.F.R. § 3.1 (d). The term “active military, naval, or air service” includes: (1) active duty; (2) any period of ADT 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 inactive duty for training (IDT) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty, or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). In this case, to establish veteran status and eligibility for service connection with respect to the Appellant’s two periods of ADT, the record must establish he was disabled from a disease or injury incurred or aggravated in the line of duty during such periods. See 38 U.S.C. § 101 (24).; 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). I. Low Back Condition Current records indicate the Appellant has general low back pain and do not show diagnosis of a low back disability. At his hearing in June 2014, he alleged that his low back started hurting when he was carrying a backpack during marches and he experienced sharp pains. He stated he did not go to sick call or seek treatment for his back while in service, but back pain continued after he left service. He stated that he saw a chiropractor after separation from ADT in the 1980s; however, besides taking over-the-counter pain medications, he had not continued to seek treatment for back pain until recently. As of June 2014, he was experiencing a little pain when he sat for long periods of time or when he went for long walks. In Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that “‘disability’ in [38 U.S.C.] § 1110 refers to the functional impairment of earning capacity” and “pain in the absence of a presently-diagnosed condition can cause functional impairment,” en route to its conclusion that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” 886 F.3d at 1363, 1368, 1369. However, the Federal Circuit also made clear that a veteran cannot “demonstrate service connection simply by asserting subjective pain to establish a disability, the veteran’s pain must amount to a functional impairment.” Here, current medical records do not indicate functional impairment caused by low back pain. In addition, a medical examination and report of medical history dated in April 2004 indicated no back concerns and there is no indication in the record or from the Appellant himself that he sustained a specific injury to his back during his period of ADSW while a recruiter between October and November 2004. The Board finds that the criteria necessary to establish service connection for a low back condition are not met. Although the Appellant currently experiences low back pain, the evidence does not support a finding that such pain causes functional impairment that would affect his earning capacity. Additionally, although the Appellant argues he injured his back marching in service, the evidence does not support a finding that the Appellant is currently disabled from an injury to the back incurred in the line of duty during either of his ADT periods. The Board finds that the preponderance of the evidence is against the claim. Consequently, the benefit of the doubt doctrine does not apply and service connection must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). II. Heart Condition At his June 2014 hearing, the Appellant alleged he began experiencing chest pains while in the military mostly during physical training. He stated he “didn’t think anything of it” and did not seek treatment. He stated the pain would come and go, especially when he engaged in physical activity and that the pains continued after he left service. He stated he took pain medications prior to seeking treatment with a cardiologist in recent years when the pain became too bad. At that time, he was diagnosed with heart disease. Medical examinations and Reports of Medical History of dated in January 2003 at enlistment to the Navy Reserve as well as in April 2004 prior to service with the Army National Guard do not show any concerns involving the heart or complaints of chest pains. A medical record dated in January 2010 from the Social Security Administration (SSA) indicated the Appellant had no history of heart disease. Additional SSA and private medical records do not demonstrate recurrent complaints of chest pain. Overall, the Board finds the evidence does not support a finding that heart disease or another heart condition was incurred in the line of duty during a period of ADT. The records surrounding service do not indicate complaints of chest pain or heart concerns or show continuing symptomatology prior to a diagnosis of heart disease. As in-service incurrence is not demonstrated, there is no doubt to be resolved and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND I. Residuals of Stroke Prior to establishing entitlement to service connection, an appellant must establish “veteran status” for any period of ADT by demonstrating that he was disabled from disease or injury incurred or aggravated in the line of duty. VA has determined that the Appellant’s period of ADSW between October 25, 2004 and November 26, 2004 qualifies as ADT with the Army National Guard. Medical evidence demonstrates that the Appellant suffered an ischemic stroke or “transient ischemic attack” (TIA) on November 13, 2004 during his second period of ADT. At his June 2014 hearing before the Board, the Appellant testified that he was working 12 hours shifts recruiting and began to experience numbness on his right side while in his government car. He stated he immediately went back to the base and sought medical treatment at a private clinic as there was not a medical facility at the recruitment post. The Appellant indicated he was discharged early from the National Guard due to the stroke and stated that he never fully recovered from that event as he continues to experience memory loss and headaches for which he currently seeks treatment. The evidence also demonstrates that the Appellant received a disability severance payment in January 2007. Although efforts have been exhausted in attempting to determine what disability the severance payment was for, the Appellant alleges it was for the documented TIA on November 13, 2004. The Board finds that remand is appropriate for a VA examination given evidence that the Veteran purportedly experienced a stroke or TIA while performing his duties during a period of ADT and that he still experiences residuals, to include memory loss and headaches. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an ‘in-service event, injury or disease,’ (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006) An examination should be scheduled to help determine whether the Appellant is currently disabled from the stroke incurred during a period of ADT. The RO should also undertake any additional development necessary to determine whether the stroke or TIA occurred in the line of duty as the Appellant contends. II. Prostate Condition & Left Leg Arthritis The Appellant’s claims for service connection for a prostate condition and left leg arthritis are based on an argument that such disabilities that pre-existed his ADT period in 2004 were aggravated therein. Regarding the prostate, medical evidence indicates the Veteran was diagnosed with prostatitis around September 2003, prior to activation to ADT in October 2004. Regarding the left leg, medical evidence indicates the Veteran injured his leg prior to his initial period of service in 1986 and underwent surgery prior to enlistment in the Army Reserve. Unless and until veteran status is established for any period of ADT, the presumption of soundness under 38 U.S.C. § 1111, the presumption of aggravation under 38 U.S.C. § 1153, and the presumptions of service connection accorded certain diseases under 38 U.S.C. §§ 1112 -1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. See Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013); Smith v. Shinseki, 24 Vet. App. 40, 45-48 (2010) (holding that presumptions of service connection and the presumptions of soundness and aggravation cannot apply to appellants whose claims are based only on a period of active duty for training); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (holding that a presumption of service connection is inapplicable without previously established veteran status (citing Biggins, 1 Vet. App. at 478)). Moreover, in the context of a claim based on aggravation of a preexisting disorder during an ADT period, the claimant must show “both that a worsening of [the] condition occurred during the period of active duty for training and that the worsening was caused by the active duty for training.” Smith, 24 Vet. App. at 48 (emphasis in original) (citing 38 U.S.C. § 101 (24)(B). Thus, in contrast to claims based on a period of active service, there must be direct evidence of causation of the worsening of the disorder by the period of ADT. See id. (“Because . . . the definition of the phrase ‘active military, naval or air service’ differs for a person serving on active duty and one serving on active duty for training, the proof that a particular disability was aggravated during active duty for training may be established only by direct evidence.”). Causation is established with evidence showing that the disorder worsened beyond its natural progression during the active duty for training period. See 38 U.S.C. § 1153. Because the presumption of aggravation does not apply in claims based on a period of active duty for training when veteran status is not established, the burden is on the appellant to demonstrate that he experienced a permanent increase in disability beyond the natural progress of that disease or injury during his period of ADT. Importantly, if the Appellant establishes veteran status for one disability incurred in or aggravated by a period of ADT, for example residuals of stroke/TIA, that status will apply to all disabilities claimed to have been incurred or aggravated during that period of ADT. See Hill v. McDonald, 28 Vet. App. 243, 249-252 (2016). In this case, if service connection for residuals of a stroke is granted, the burden of proof in proving a claim for service connection for pre-existing disability would change as the Appellant would have achieved veteran status such that the presumptions of soundness and aggravation would apply to the second period of ADT. Given this, the Board finds that a decision regarding the claims for service connection for a prostate condition and left leg arthritis would be premature and potentially prejudicial to the Appellant prior to initial consideration of service connection for residuals of a stroke. As such, these claims will also be remanded so appropriate development can occur if veteran status is achieved. III. Acquired Psychiatric Disorder, to include PTSD The Appellant has asserted several theories regarding the onset and etiology of his currently diagnosed psychiatric disorder. He contends that his psychiatric disability began during his second ADT period when he was concerned he would be deployed to Iraq. In a psychological evaluation dated in April 2012, he was diagnosed with alcohol abuse in remission, social anxiety disorder and depressive disorder not otherwise specified and reported the major trauma in his life was his diagnosis of prostate cancer in 2009. It was noted he had been attending group therapy at a Vet Center since 2011, but was not taking any psychiatric medications or seeking treatment from a therapist. The Board finds that because the claim for service connection for a prostate condition is being remanded, a decision regarding the claim for a psychiatric disorder would be premature and potentially prejudicial to the Appellant. In the event the Appellant achieves veteran status for the October 2004 to November 2004 period of ADT, further development as to the prostate cancer claim as well as the psychiatric claim may be necessary. IV. Entitlement to a TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Here, the Appellant is not currently service connected for any disabilities. However, claims for service connection for multiple disabilities are being remanded for further development that may impact entitlement to a TDIU. As such, the TDIU claim must be remanded as inextricably intertwined with those claims. V. Nonservice-connected pension Veterans are entitled to VA nonservice-connected pension benefits if they are permanently and totally disabled from a nonservice-connected disability which is not the result of willful misconduct, provided they have the requisite service. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.3, 3.314. An appellant meets the necessary service requirements if he served in active military, naval, or air service under one of the following conditions: (1) for 90 days or more during a period of war; (2) during a period of war and was discharged or released from service for a service-connected disability; (3) for a period of 90 consecutive days or more and such period began or ended during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. 38 U.S.C. § 1521; 38 C.F.R. § 3.3. For purposes of 38 U.S.C. § 1521, periods of war include the Vietnam era, which ended on May 7, 1975 and the Persian Gulf War, dating from August 2, 1990. 38 C.F.R. § 3.2. In this case, the Appellant had a period of ADT during the Gulf War era between October 25, 2004 and November 26, 2004. The Board is remanding a claim for service connection for residuals of stroke which evidence indicates occurred during this ADT period. The Appellant asserts he was separated from the National Guard following the stroke for which he received a disability severance payment in January 2007. The claim for service connection for residuals of stroke may impact whether it may be said that the Appellant was released from service during a period of war for a service-connected disability. Given this, the Board will remand the claim for nonservice-connected pension as inextricably intertwined with the claim for service connection for residuals of a stroke as basic eligibility for nonservice-connected pension may be demonstrated should service connection for residuals of a stroke be found warranted. The matters are REMANDED for the following action: 1. Associate all outstanding VA treatment records with the electronic claims file. 2. With appropriate authorization from the Appellant, obtain and associate with the claims file all pertinent private treatment records that have not already been obtained. All requests and responses, positive and negative, must be documented in the claims file. If the requested records are unavailable, the Appellant should be so notified so he can provide those records himself, if possible. 3. Schedule the Appellant for a VA examination to determine whether he currently suffers from any residuals of stroke or transient ischemic attack that occurred on November 13, 2004 during a period of active duty training. A medical history should be taken from the Appellant. Any tests deemed necessary should be conducted and the claims folder must be provided to the examiner for review. If residuals are identified, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that such residuals were incurred in (began during) or are otherwise related to his period of ADT. If the examiner cannot provide an opinion without resort to speculation, he or she must explain the reason for the speculation. A rationale must accompany any opinion expressed as the Board cannot make its own medical conclusions. 4. Once a VA examination has been conducted, readjudicate the claim for service connection for residuals of a stroke and determine whether the Appellant has established veteran status for the period of ADT between October and November 2004. If the Appellant has achieved veteran status, readjudicate the claims for service connection for a prostate condition and for left knee arthritis, to include providing a VA examination if appropriate, keeping in mind that if the Appellant has achieved veteran status, the presumptions applicable to service connection claims for veterans will apply. 5. If service connection is granted for residuals of a stroke and the Appellant achieves veteran status for the 2004 period of ADT, readjudicate the claim for service for an acquired psychiatric disorder, to include providing a VA examination if appropriate. In adjudicating the claim, it should be noted that the Appellant has, in part, argued his diagnosed psychiatric disability is secondary to his prostate condition. 6. Following development of the claims for service connection for residuals of a stroke, a prostate condition, left leg arthritis and an acquired psychiatric disorder, readjudicate the claims for entitlement to a TDIU and nonservice connected pension. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel