Citation Nr: 20037523 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-65 834 DATE: June 2, 2020 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for athlete’s foot is denied. Entitlement to service connection for left side paralysis, to include Bell's palsy is denied. REMANDED Entitlement to service connection for a headache disorder, to include migraine is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a lumbar spine disability began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence of record is against finding that the appellant has had athlete’s foot at any time during or approximate to the pendency of the claim. 3. The preponderance of the evidence is against finding that the appellant’s preexisting left side paralysis was aggravated by service CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability 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 athlete’s foot are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left side paralysis is not met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training (ACDUTRA) from March 8, 1957 to September 7, 1957 with additional Reserve service. The appeal was most recently before the Board in May 2018 when it was remanded for additional development. The Board finds there has been substantial compliance with the remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). Service Connection The appellant seeks service connection for a lumbar spine disability, athlete’s foot, and left side paralysis. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 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). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant 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 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as active military, naval, or air service, and the appellant would not qualify as a veteran by virtue of ACDUTRA service alone. Id. Lumbar spine The appellant asserts his lumbar spine disability is related to his ACDUTRA service. The question for the Board is whether the appellant has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the appellant has a current diagnosis of a lumbar spine disability, and evidence shows that he reported back tenderness during service, the preponderance of the evidence weighs against finding that the appellant’s currently diagnosed back disability began during service or is otherwise related to an in-service injury, event, or disease. VA treatment records show the appellant was not diagnosed with a lumbar spine disability, lumbar spondylosis and degeneration of lumbosacral intervertebral discs, until September 2010, over 50 years since his ACDUTRA service. Further, the March 2017 VA examiner opined that the appellant’s lumbar spine disability is not as likely as not related to an in-service injury, event, or disease, including his in-service report of back tenderness. The rationale was there was no diagnosis or treatment for any lower back condition during service. The examiner noted that during service in April 1957, the appellant underwent an orthopedics consultation for a history which included a low back ache. While tenderness in his low back was noted, no abnormality was found on examination of his back. Additionally, his August 1957 ACDUTRA exit history and physical and his July 1961 reserve service quadrennial examination were negative for any back complaints. While the appellant also reported on examination that he had no specific recall of having back pain during service, he believed he hurt it during training because he always had back problems. He also reported seeing a chiropractor after training, but did not remember how long afterwards. He then reported his next treatment for his back was not until seeing a private physician about 6 to 8 years before he began receiving treatment at a VA facility in 2006. However, the March 2017 examiner noted that while there were no medical records of record from January 1965 to March 2006, there was no documented complaints of back pain or symptoms or a diagnosis until after 2009. Specifically, two hospitalizations in 2006 and cervical spine surgery in August 2008 did not indicated any history or reports of back pain or problems. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The appellant believes his lumbar spine disability is related to an in-service injury, event, or disease. The appellant in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the opinion of the March 2017 VA examination Service connection for a lumbar spine disability is denied. Athlete’s Foot The appellant seeks service connection for athlete’s foot. While athlete’s foot was initially characterized as preexisting, as noted by the May 2018 remand, no defect was noted on March 1957 enlistment examination and is presumed sound. The question for the Board is whether the appellant has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that the appellant does not have a current diagnosis of athlete’s food and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The March 2017 VA examiner VA examiner evaluated the appellant and determined that, while the appellant reported having athlete’s foot for the prior 3 years, he did not have a diagnosis of athlete’s foot. The examiner noted that the appellant had no complaints regarding his feet and denied the use of any over-the-counter antifungal creams or powders. Further, despite consistent treatment from March 2006 to May 2019, VA treatment records do not contain a diagnosis of athlete’s foot. While the appellant believes he has a current diagnosis of athletes foot, the Board finds the VA examination report and medical opinion more probative; the examiner specifically noted there was no diagnosis. Service connection for athlete’s foot is denied. Left side paralysis The appellant seeks service connection for left side paralysis. His STRs reflect that a left side paralysis existed prior to service. It was noted on January 1957 and March 1957 examinations prior to beginning ACDUTRA. Both examinations noted the appellant had paralysis of the left side of the face and the only residual was a visual defect that was not considered disabling. The questions for the Board are whether the preexisting left side paralysis was aggravated by his service. The Board concludes that the preponderance of the evidence weighs against finding that the appellant’s preexisting left side paralysis was aggravated by service. 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). 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. The appellant claims his preexisting condition was aggravated during his period of ACDUTRA. To establish veteran status, he 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. There is no evidence that the left side paralysis underwent an increase in severity during his ACDUTRA service. On March 1957 entrance into ACDUTRA examination residual of left facial paralysis were noted to be moderate. On August 1957 ACDUTRA separation examination again noted residuals of left facial paralysis were moderate. Therefore, the appellant has not met the burden that the preexisting disability both permanently worsened in service and that such worsening was beyond the natural progression of the disease. Donnellan, 24 Vet. App. at 174. Service connection for aggravation of the left side paralysis in service is denied. REASONS FOR REMAND Entitlement to service connection for a headache disorder, to include migraine is remanded. In May 2018, the Board remanded the claim for a headache disorder to obtain an addendum opinion addressing whether the appellant’s diagnosed migraines were related to his in-service acoustic trauma. In a June 2019 addendum opinion the VA examiner provided a negative nexus opinion regarding acoustic trauma, but the opinion is inadequate. The examiner opined that the appellant’s headaches were unlikely caused by acoustic trauma in service because there was no evidence of a headache disorder and the examiner would have expected them to manifest during service. However, the examiner did not discuss whether the appellant’s report of a headache in a March 1957 in-service treatment note was a manifestation of a headache disorder. Accordingly, a new opinion is necessary. On remand, updated treatment records should be obtained. See 38 C.F.R. § 3.159. See also Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the appellant for headaches since service not already associated with the record. After securing the necessary release, take all appropriate action to obtain these records, including any VA treatment records since May 2019. 2. After the completion of the above, obtain an addendum opinion (with examination if deemed necessary by the provider) from the VA examiner who provided the March 2017 VA headache opinion and June 2019 VA neurology addendum opinion, (or from another appropriate provider if the March 2017 examiner is unavailable). Copies of all pertinent records, including this remand, must be made available to the examiner for review. Based on the review of the record, the examiner should provide an opinion to the following: Is it at least as likely as not that the appellant’s migraine headaches are related to his ACDUTRA service, to include exposure to acoustic trauma associated with artillery fire? The examiner should consider and discuss as necessary the March 1957 in-service report of a headache. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. If an opinion cannot be provided, the examiner should indicate why. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.