Citation Nr: 20009846 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 07-34 412 DATE: February 5, 2020 REMANDED Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for left ear serous otitis externa and media is remanded. Entitlement to service connection for a left foot disorder, including osteoarthritis and pes planus, is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army Reserves from March to May 1976 and August to October 1976, with additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from October 1976 to February 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2006 rating decision of a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Board notes that in a June 2009 statement the Veteran withdrew her previous request for a Travel Board hearing before a Veterans Law Judge. This matter was previously remanded by the Board for further development in February 2012, November 2013, November 2014, December 2015 and June 2017. The case returns to the Board for further adjudication. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to service connection for allergic rhinitis 2. Entitlement to service connection for left ear serous otitis externa and media 3. Entitlement to service connection for a left foot disorder, including osteoarthritis and pes planus The Board regrets any further delay in adjudicating these claims, but finds that the appeal must again be remanded due to non-compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). Further, the Board finds that the record itself is incomplete, as clarification of the Veteran’s dates and character of such service are still at question. The Veteran asserts that her various disabilities were caused or aggravated by her active duty and/or reserve service. In general, service connection may be established for disability resulting from personal injury sustained or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Veteran status is the first element required for a claim for disability benefits. D’Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term “veteran” means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2). The term “active duty” includes full-time duty in the Armed Forces, other than active duty for training (ACDUTRA). 38 U.S.C. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C. § 101(10). 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 line of duty or period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the Veteran became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as “active military, naval, or air service,” and the Veteran would not qualify as a “veteran” by virtue of ACDUTRA service alone. Id. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless “veteran” status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Paulson, 7 Vet. App. at 471. Moreover, even for veterans who have achieved “veteran” status through a prior period of active service and claim a disability incurred only during a different period of ACDUTRA, the presumption of soundness applies only when the veteran has been “examined, accepted, and enrolled for service” and where that examination revealed no “defects, infirmities, or disorders.” Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). See also Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (the presumption of aggravation is not applicable to ACDUTRA service unless claimant is service-connected for a disability for such period of ACDUTRA). There must be an entrance examination prior to the specific period of ACDUTRA or INACDUTRA in which the Veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Smith, 24 Vet. App. at 45-46. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish “veteran” status, the claimant must demonstrate both elements of aggravation - (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan, 24 Vet. App. at 174. In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). The standard of proof for the claimant is the “benefit of the doubt” standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Id. at 175. For purposes of 38 U.S.C. § 101(24), the term “injury” refers to the results of an external trauma rather than a degenerative process. See generally VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 86-90 (July 18, 1990); VAOPGCPREC 8-2001 (Feb. 26, 2001). In the present case, the Veteran has had two periods of active duty, followed by a lengthy period of reserve service with periods of ACDUTRA and INACDUTRA. The prior remands sought to obtain clarification as to the specific dates and character of the Veteran’s service, to include seeking Defense Finance and Accounting Service (DFAS) and Master Military Pay Account (MMPA) pay records. The Board recognizes that partial records of the Veteran’s pay, from 1976 to 1993, reflecting periods of ACDUTRA and INACDUTRA were attached to the record in January 2015. Nevertheless, the record is still incomplete, as there are no records for the Veteran’s service from 1993 to 1999, and the AOJ has not attached a formal finding regarding periods of ACDUTRA and INACDUTRA to the record. Pertinent to the claim for service connection for a left foot disorder, the AOJ did not comply with the Board’s prior remand directives to make a formal finding as to whether the Veteran was on ACDUTRA in September 1980 or July 1985, the dates in which her service treatment records reflect treatment for left foot complaints. Similarly, the most recent remand asked the AOJ to make a formal finding as to whether the Veteran was on ACDUTRA in September 1980, October 1984, January 1987, and April 1995, dates in which her service treatment records indicate complaints of sinusitis, hay fever, allergies, and serous otitis externa and media. Finally, a finding was requested for July 1997, when the Veteran sought treatment and received a sick slip to cease running for 7 days due to a sinus and upper respiratory infection. The Board notes that the Veteran is currently service-connected for tinnitus and asthma. The April 2013 AOJ rating decision granting both claims appears to have based the award of service connection for tinnitus on a period of ACDUTRA in 1997. It is unclear which period of service was the basis for the award of service connection for asthma. As discussed above, once a claimant achieves “veteran” status through a prior period of ACDUTRA service, the available presumptions pertaining to active service apply. Smith, 24 Vet. App. at 45-46; Donnellan, 24 Vet. App. at 171. Thus, the AOJ must identify the periods of service pertaining to the awards of service connection for tinnitus and asthma. In the June 2017 remand, the Board instructed the AOJ to determine whether the aforementioned periods of service were classified as ACDUTRA and thereafter refer the case to an appropriate physician for addendum opinions which clearly identify the Veteran’s duty status for each time period requested and opine as to whether the claims originated in or are related to active duty service. No further examination of the Veteran was requested or required. Upon remand, the AOJ appears to have scheduled the Veteran for a new medical examination on November 11, 2019. A review of the file produces no evidence that the Veteran was ever notified of a pending VA examination. When the Veteran was a “no-show” at the examination, the AOJ issued a December 2019 supplemental statement of the case noting the failure to appear and stating it was VA policy to deny the claim absent good cause. The Board will remand the matter once again in an attempt to obtain the requested character of service formal determinations and medical addendum opinions. The matters are REMANDED for the following action: 1. Associate with the claims folder records of the Veteran’s VA treatment since November 2019. 2. Clarify what period(s) of service supported the April 2103 grant of service connection for the appellant’s disabilities of tinnitus and asthma so as to determine what periods of ACDUTRA/INACDUTRA service the Veteran is deemed a “veteran” for presumptive purposes. 3. The AOJ must take additional action to verify the date of the Veteran’s ACDUTRA, INACDUTRA and any other type of reserve service. The exact dates of drill (ACDUTRA and INACDUTRA) can be found by contacting the Defense Finance and Accounting Service (DFAS) and requesting the Veteran’s Master Military Pay Account (MMPA) covering the periods in question: June 1979, September 1980, October 1984, July 1985, January 1987, March 1991, April 1995 and July 1997. Some, but not all, of these records were attached to the file on January 26, 2015 as “DFAS Payment Worksheet” and “Military Personnel Record.” 4. Thereafter, the AOJ must clearly identify: •the period(s) of service supporting the award of service connection for tinnitus; •the period(s) of service supporting the award of service connection for asthma; and •the Veteran’s duty status in June 1979, September 1980, October 1984, July 1985, January 1987, March 1991, April 1995, and in July 1997. 5. Thereafter, return the case to an appropriate medical examiner for addendum opinions which clearly identify the Veteran’s duty status as discussed in the above directive. The AOJ’s request for opinion should take into account any applicable presumptive provisions for those periods of ACDUTRA/INACDUTRA service where the appellant has achieved “veteran” status. The examiner is requested to provide the following opinions: (a) Whether it at least as likely as not (50 percent or greater probability) that the Veteran’s allergic rhinitis originated in or is otherwise etiologically related to any period of ACDUTRA or active duty. (b) Whether it at least as likely as not (50 percent or greater probability) that the Veteran’s left ear serous otitis extrena and media originated in or is otherwise etiologically related to any period of ACDUTRA or active duty. (c) Whether it at least as likely as not (50 percent or greater probability) that the Veteran’s left foot condition, to include osteoarthritis and pes planus, originated in or is otherwise etiologically related to any period of ACDUTRA or INACDUTRA or active duty. A full explanation and rationale for each opinion is required. The examiner should consider the Veteran’s complaints as reflected in service treatment records from June 1979, September 1980, October 1984, July 1985, January 1987, March 1991, April 1995, and in July 1997; as well as her lay statements regarding continuity of foot symptomatology since service and working 12-hour shifts on her feet and self-treatment of foot issues during periods of ACDUTRA and INACDUTRA. 6. Once the above development has been completed, readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, she and her representative must be furnished a supplementary statement of the case and afforded an opportunity to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, Associate Counsel 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.