Citation Nr: 21000003 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 17-47 215 DATE: January 4, 2021 REMANDED Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. Entitlement to service connection for residuals of parotid gland removal is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for a ganglion cyst of the right palm is remanded. Entitlement to service connection for a Baker's cyst of the right knee is remanded. REASONS FOR REMAND The Veteran had a period of active duty for training (ACDUTRA) in the U.S. Army from October 22, 1985, to April 11, 1986. He also had additional unverified periods of inactive duty for training (INACDUTRA) and ACDUTRA in the U.S. Army Reserves. The Veteran contends that he incurred carpal tunnel syndrome of the bilateral upper extremities, residuals of parotid gland removal, tinnitus, bilateral hearing loss, a ganglion cyst of the right palm, and a Baker’s cyst of the right knee during a period of active service in the U.S. Army Reserves (USAR). He alternatively contends that each of these current disabilities is related to active service in the USAR. Having reviewed the record evidence, the Board finds that additional development is necessary before the underlying claims can be adjudicated on the merits. The Board notes initially that the term “Veteran” is defined, in relevant part, as “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) (2012); 38 C.F.R. § 3.1(d) (2019). The term “active military, naval, or air service” includes active duty and “any period of active duty for training during which the individual concerned 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 during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty.” 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a) (emphasis added). Active duty for training (ACDUTRA) includes full-time duty in the Armed Forces performed by Reserves for training purposes and includes full-time duty performed by members of the National Guard of any State. Inactive duty training (INACDUTRA) generally means duty (other than full-time duty) prescribed for Reserves and duty (other than full-time duty) performed by a member of the National Guard of any State. 38 U.S.C. §§ 101(21), 101(23) 101(24) (2012); 38 C.F.R. §§ 3.6(a), (c), (d) (2019). To establish Veteran status based on ACDUTRA, the claimant must establish that he or she was disabled resulting from an injury or disease incurred in or aggravated during the line of duty during that period. To establish Veteran status based on INACDUTRA, the claimant must establish that he or she was disabled resulting from an injury incurred in or aggravated in the line of duty during that period. 38 U.S.C. §§ 101(2), 101(24); 38 C.F.R. §§ 3.1(d), 3.6 (a), (c), (d); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Brooks v. Brown, 5 Vet. App. 484, 485 (1993). If the claimant does not qualify as a Veteran with respect to a particular claim, then he or she is not entitled to the presumption of soundness or aggravation as to that claim. See Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Paulson, 7 Vet. App. at 469-471. Similarly, the claimant is not entitled to the benefit of the legal presumptions pertaining to service connection for certain disabilities. See Biggins v. Brown, 1 Vet. App. 474, 478 (1991). The fact that a claimant has established status as a Veteran for purposes of other periods of service does not obviate the need to establish that the claimant also is a Veteran for purposes of a period of ACDUTRA and a period of INACDUTRA where, as here, the claims are premised on a period of ACDUTRA and on a period of INACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The Court has interpreted 38 U.S.C. § 101(24) as meaning that ACDUTRA (and INACDUTRA) will not be considered “active military, naval, or air service” unless the claimant previously established service connection for a disability incurred in such service. See Mercado-Martinez, 11 Vet. App. at 419; Paulson, 7 Vet. App. at 469-470; Biggins, 1 Vet. App. at 477-478. Thus, the allocation of service among active duty, ACDUTRA, and INACDUTRA can bring about conclusive results for a claimant with respect to certain medical conditions. A review of the record evidence shows that the Veteran had multiple unverified periods of active service, including ACDUTRA and INACDUTRA, in the USAR. The Agency of Original Jurisdiction (AOJ) requested verification of the Veteran’s complete service dates in April 2009. There is no record of a response to this request in the claims file. The AOJ next sent a letter to a USAR unit in April 2012 which had been identified by the Veteran as his USAR unit. There also is no record of a response to this letter. The AOJ contacted the Veteran in August 2014 and requested information concerning his USAR service. He responded by a providing a copy of his official orders notifying him in December 2013 that, effective January 5, 2014, he had 20 years of qualifying service in the USAR to receive retired pay at age 60. These orders also notified the Veteran that he was transferred to the Retired Reserve effective January 5, 2014. He provided an updated mailing address for the unit which he identified as his USAR unit in September 2014 although it does not appear that the AOJ attempted to contact this unit at the address provided. The record evidence also shows that there are voluminous outpatient treatment records currently associated with the claims file dated subsequent to the Veteran’s only currently verified period of ACDUTRA between October 1985 and April 1986. These records show ongoing complaints and treatment for the Veteran’s claimed disabilities. For example, a right knee magnetic resonance imaging (MRI) scan taken on July 30, 2008, showed a parameniscal cyst. An outpatient treatment visit dated on January 12, 2010, included a diagnosis of a ganglion cyst of the right palm. An audiogram dated on January 20, 2011, showed bilateral hearing loss for VA adjudication purposes. A line of duty investigation report dated on May 25, 2011, showed that the Veteran was diagnosed as having a parotid tumor of the right cheek. Surgical removal of this tumor occurred on July 11, 2011. A line of duty investigation report dated on October 6, 2011, showed that the Veteran was diagnosed as having and treated surgically for bilateral carpal tunnel syndrome of the hands. Unfortunately, it is not clear from a review of the record evidence whether any of this medical care was provided during a period of active service, ACDUTRA, or INACDUTRA. The Veteran’s duty status will impact his entitlement to service connection for carpal tunnel syndrome of the bilateral upper extremities, residuals of parotid gland removal, tinnitus, bilateral hearing loss, a ganglion cyst of the right palm, and a Baker’s cyst of the right knee. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). If, for example, the Veteran was on ACDUTRA in the USAR at the time he experienced any of these claimed disabilities, then VA is obligated to obtain appropriate medical nexus opinions concerning the nature and etiology of these disabilities pursuant to the VCAA’s duty to assist. See also 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). By contrast, if the Veteran was on INACDUTRA in the USAR at the time that he experienced any of these disabilities, then the prohibition found in 38 C.F.R. § 3.6(a) against service connection for diseases incurred during a period of INACDUTRA potentially precludes further development of the claims. See 38 C.F.R. § 3.6(a). Thus, the Board finds that, on remand, the AOJ should contact the appropriate Federal records repository and obtain a list of all of the Veteran’s USAR service dates between February 14, 1975, and November 29, 2002. The matters are REMANDED for the following action: 1. Take all appropriate steps to obtain a detailed listing of all of the dates that the Veteran was on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in the USAR between October 22, 1985, and January 5, 2014. A copy of any request(s) sent to the appropriate Federal records repository, and any reply, should be associated with the claims file. Make as many attempts to obtain this information and stop only if further attempts are futile. 2. If, and only if, the record evidence shows that the Veteran was on ACDUTRA or INACDUTRA in the USAR when right knee MRI scan on July 30, 2008, showed a parameniscal cyst, then forward the claims file to a clinician for an opinion concerning the nature and etiology of his Baker’s cyst of the right knee. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether a Baker’s cyst of the right knee is related to active service. The clinician is advised that the Veteran contends that he incurred a Baker’s cyst of the right knee while he was on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in the U.S. Army Reserves (USAR). The clinician also is advised that right knee MRI scan on July 30, 2008, showed a parameniscal cyst. 3. If, and only if, the record evidence shows that the Veteran was on ACDUTRA or INACDUTRA in the USAR when he was diagnosed as having a ganglion cyst of the right palm on outpatient treatment on January 12, 2010, then forward the claims file to a clinician for an opinion concerning the nature and etiology of his ganglion cyst of the right palm. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether a ganglion cyst of the right palm is related to active service. A complete rationale must be provided for any opinion(s) expressed. The clinician is advised that the Veteran contends that he incurred a ganglion cyst of the right palm while he was on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in the U.S. Army Reserves (USAR). The clinician also is advised that the Veteran was diagnosed as having a ganglion cyst of the right palm on outpatient treatment on January 12, 2010. 4. If, and only if, the record evidence shows that the Veteran was on ACDUTRA or INACDUTRA in the USAR when a January 20, 2011, audiogram showed bilateral hearing loss, then forward the claims file to an appropriate individual for an opinion concerning the nature and etiology of his bilateral hearing loss. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether bilateral hearing loss is related to active service. A complete rationale must be provided for any opinion(s) expressed. The clinician is advised that the Veteran contends that he incurred bilateral hearing loss while he was on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in the U.S. Army Reserves (USAR). The clinician also is advised that a January 20, 2011, audiogram showed bilateral hearing loss and the Veteran’s in-service exposure to significant acoustic trauma is conceded. 5. If, and only if, the record evidence shows that the Veteran was on ACDUTRA or INACDUTRA in the USAR when a right parotid tumor was removed surgically on July 11, 2011, then forward the claims file to a clinician for an opinion concerning the nature and etiology of his residuals of a parotid gland removal. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether any residuals of a parotid gland removal are related to active service. A complete rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each residual of a parotid gland removal experienced by the Veteran, if appropriate. The clinician is advised that the Veteran contends that he incurred residuals of a parotid gland removal while he was on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in the U.S. Army Reserves (USAR). The clinician also is advised that a right parotid tumor was removed surgically on July 11, 2011. 6. If, and only if, the record evidence shows that the Veteran was on ACDUTRA or INACDUTRA in the USAR when a line of duty investigation dated on October 6, 2011, showed that he was treated surgically for bilateral carpal tunnel syndrome of the hands, then forward the claims file to a clinician for an opinion concerning the nature and etiology of his bilateral carpal tunnel syndrome. The Veteran does not need to report for examination. Based on a review of the claims file, the clinician is asked to state whether bilateral carpal tunnel syndrome is related to active service. A complete rationale must be provided for any opinion(s) expressed. A separate opinion and rationale should be provided for each of the Veteran’s upper extremities, if possible. The clinician is advised that the Veteran contends that he incurred bilateral carpal tunnel syndrome while he was on active duty for training (ACDUTRA) or inactive duty training (INACDUTRA) in the U.S. Army Reserves (USAR). The clinician also is advised that the line of duty investigation dated on October 6, 2011, shows that the Veteran was treated surgically for bilateral carpal tunnel syndrome. 7. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael T. Osborne, 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.