Citation Nr: 20007366 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 17-13 116 DATE: January 30, 2020 ORDER The appeal regarding service connection for sleep apnea is dismissed. The appeal regarding service connection for deviated septum is dismissed. The appeal regarding service connection for a rheumatology condition is dismissed. The appeal regarding service connection for a left breast lump is dismissed. The appeal regarding service connection for uterine fibroids is dismissed. The appeal regarding service connection for high cholesterol is dismissed. The appeal regarding service connection for gastroesophageal reflux disease (GERD), also claimed as acid reflux muscle myalgia, is dismissed. The appeal regarding service connection for anxiety is dismissed. Service connection for a low back condition is denied. Service connection for bilateral plantar fasciitis is denied. Service connection for bilateral foot neuroma is denied. Service connection for bilateral bunions is denied. FINDINGS OF FACT 1. At her October 2019 Board of Veterans’ Appeals (Board) hearing, prior to the issuance of a Board decision, the Veteran stated on the record that she was withdrawing her appeals for service connection for sleep apnea, deviated septum, a rheumatology condition, a left breast lump, uterine fibroids, high cholesterol, GERD (also claimed as acid reflux muscle myalgia), and anxiety. 2. The Veteran’s low back condition was not incurred or aggravated during a period of active duty, active duty for training, or inactive duty training. 3. The Veteran’s bilateral plantar fasciitis was not incurred or aggravated during a period of active duty, active duty for training, or inactive duty training. 4. The Veteran’s bilateral foot neuroma was not incurred or aggravated during a period of active duty, active duty for training, or inactive duty training. 5. The Veteran’s bilateral bunions were not incurred or aggravated during a period of active duty, active duty for training, or inactive duty training. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for sleep apnea. 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 2. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for deviated septum. 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 3. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for a rheumatology condition. 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 4. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for a left breast lump. 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 5. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for uterine fibroids. 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 6. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for high cholesterol. 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 7. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for GERD (also claimed as acid reflux muscle myalgia). 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 8. The criteria for withdrawal of a substantive appeal have been met; the Board does not have appellate jurisdiction to review the claim for service connection for anxiety. 38 U.S.C. §§ 7105(a), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.204. 9. The criteria for service connection for a low back condition have not been met. 38 U.S.C. §§ 101(22), 101(23), 101(24), 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. 10. The criteria for service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 101(22), 101(23), 101(24), 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. 11. The criteria for service connection for bilateral foot neuroma have not been met. 38 U.S.C. §§ 101(22), 101(23), 101(24), 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. 12. The criteria for service connection for bilateral bunions have not been met. 38 U.S.C. §§ 101(22), 101(23), 101(24), 1110, 1131; 38 C.F.R. §§ 3.6, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from November 1976 to November 1980. She also served in the New York Air National Guard from June 1992 to October 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) dated January 2016. The Veteran appeared and provided sworn testimony before the undersigned Veterans Law Judge at a September 2019 travel hearing, a transcript of which is associated with the claims file. Neither the Veteran nor her representative have raised any concerns about the adequacy of this hearing. At the hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew - on the record - her appeals for service connection for sleep apnea, deviated septum, a rheumatology condition, a left breast lump, uterine fibroids, high cholesterol, GERD (also claimed as acid reflux muscle myalgia), and anxiety. The undersigned clearly identified the withdrawn issues, and the Veteran affirmed that she was requesting a withdrawal as to those issues. In addition, the undersigned discussed the consequences of withdrawing an appeal, and the Veteran expressed that she fully understood those consequences. See Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018). Accordingly, the appeal of those claims is no longer before the Board. See 38 C.F.R. § 20.204(b)(1). With respect to the remaining issues on appeal, the Board has thoroughly reviewed all evidence in the claims file. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim, and the Board’s reasons for rejecting evidence favorable to the Veteran. The Veteran must not assume the Board has overlooked evidence not explicitly discussed herein. The RO provided the Veteran with the pertinent regulations for consideration in the January 2017 statement of the case and they are not repeated here in full. Service Connection The Veteran seeks service connection for a low back condition and three separate bilateral feet conditions (plantar fasciitis, neuroma, and bunions). The type of military service a claimant had governs his or her eligibility for service connection for a given disability. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection for a disability requires competent evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service; and (3) a causal relationship or nexus between the current disability and any injury or disease during service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Active service is defined to include, in addition to active duty ( any period of active duty for training (ACDUTRA) in which the individual was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual was disabled by an injury that was incurred or aggravated in the line of duty or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24). ACDUTRA includes full-time duty with the National Guard of any State under 32 U.S.C. §§ 316, 502, 503, 504, or 505 (or the prior corresponding provisions of law). See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training which each National Guardsman must perform each year. It can also refer to the Guardsman’s initial period of training. INACDUTRA includes service with the National Guard of any State (other than full-time duty) under 32 U.S.C. §§ 316, 502, 503, 504, or 505 (or the prior corresponding provisions of law). See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d); see also Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (holding that in order to have basic eligibility for VA benefits based on a period of duty as a member of a state 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); Clark v. United States, 322 F.3d 1358, 1366 (Fed. Cir. 2003) (explaining that “members of the National Guard only serve the [F]ederal military when they are formally called into the military service of the United States [and that at] all other times, National Guard members serve solely as members of the State militia under the command of a state governor.”). In short, only periods of Federalized service in the National Guard are qualifying service for the purpose of VA compensation benefits. Thus, to be eligible for benefits based on a period of duty served with a state’s National Guard, a National Guardsman must have: (1) been ordered into Federal service by the President of the United States under 10 U.S.C. § 12401; or (2) performed ACDUTRA under 32 U.S.C. §§ 316, 502, 503, 504, 505; or (3) been ordered to ACDUTRA under 10 U.S.C. § 12301(d). As noted above, the Veteran served on active duty in the Air Force from November 1976 to November 1980, and then in the New York Air National Guard from June 1992 to October 2014. The Veteran expressly contends that the feet and back conditions for which she seeks service connection did not begin during her period of active duty, but rather began during a weekend drill in June 1997 when she injured her foot during a physical fitness test. See, generally, March 2016 VA Form 21-4138; October 2019 VA Form 9. She further contends that her problems continued to worsen throughout the remainder of her National Guard service (to include after a March 2008 overseas mission for which she was required to wear steel-toed boots), and eventually caused her to retire earlier than she had planned due to being unable to pass required physical fitness tests. See id.; October 2019 Board hearing transcript. Although treatment records documenting the Veteran’s ongoing treatment for back and feet problems have been submitted, no evidence has been provided to suggest that the Veteran was performing active Federal service in June 1997 when she claims she first injured her foot, or at any time thereafter, including March 2008 when she claims her feet condition worsened. To the contrary, the Board notes that her NGB Form 22 shows that at the time she retired from the National Guard she had four years of prior active Federal service, which corresponds to her four years of active duty service noted on her DD Form 214. In addition, a September 2011 Special Order that awarded the Veteran the Meritorious Service Medal states that her March 2008 overseas mission was a State Department ordered United Nations mission for which she volunteered. Therefore, the Board finds that the Veteran was never ordered into active Federal service by the President of the United States under 10 U.S.C. § 12401, performed ACDUTRA under 32 U.S.C. §§ 316, 502, 503, 504, 505; or ordered to ACDUTRA under 10 U.S.C. § 12301(d). While the Veteran disagrees that her National Guard service should be treated any differently than her active duty service, that is the law. The Board acknowledges the January 2016 positive VA examiner nexus opinions regarding her claimed back and feet conditions. However, the dispositive fact in this case is that the Veteran’s back and feet conditions were not caused or aggravated by an injury, event, or illness that occurred during a qualifying period of active service. The Board thanks the Veteran for her many years of honorable service to our country. However, based on the evidence of record, there is no basis under the law to grant service connection for her back and bilateral feet conditions. The Veteran’s claims for service connection for must be denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine and finds it inapplicable. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Leamon The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.