Citation Nr: 21002056 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 11-15 870 DATE: January 12, 2021 ORDER Service connection for asthma is denied. Service connection for an ulcer (claimed as an ulcer of the antrum) is denied. Service connection for chest pain is denied. Service connection for bunions with hammertoes in the right foot is denied. Service connection for bunions with hammertoes in the left foot is denied. Service connection for a lumbar spine disorder (claimed as back pain with arthritis) is denied. Service connection for hypertension is denied. Service connection for defective vision in the right eye is denied. Service connection for defective vision in the left eye is denied. FINDINGS OF FACT 1. The appellant is currently diagnosed with asthma; the current asthma is not etiologically related to an injury or disease sustained during active duty for training (ACDUTRA) service, or to an injury sustained during inactive duty for training (INACDUTRA) service. 2. The appellant is not currently diagnosed with an ulcer. 3. The appellant is not currently diagnosed with a disability manifested by symptoms of chest pain, other than the currently diagnosed asthma. 4. The appellant is currently diagnosed with bunions with hammertoes in the right foot (right foot disorder); the current right foot disorder is not etiologically related to an injury or disease sustained during ACDUTRA service, or to an injury sustained during INACDUTRA service. 5. The appellant is currently diagnosed with bunions with hammertoes in the left foot (left foot disorder); the current left foot disorder is not etiologically related to an injury or disease sustained during ACDUTRA service, or to an injury sustained during INACDUTRA service. 6. The appellant is currently diagnosed with back pain (lumbar spine disorder); the current lumbar spine disorder is not etiologically related to a disease or injury sustained during ACDUTRA service, or to an injury sustained during INACDUTRA service. 7. The appellant is currently diagnosed with hypertension; the current hypertension is not etiologically related to a disease or injury sustained during ACDUTRA service, or to an injury sustained during INACDUTRA service. 8. The appellant is currently diagnosed with presbyopia, astigmatism, and hyperopia in the right eye (defective vision in the right eye); the appellant did not sustain a superimposed disease or injury to the right eye that caused additional disability during ACDUTRA or INACDUTRA service. 9. The appellant is currently diagnosed with presbyopia, astigmatism, and hyperopia in the left eye (defective vision in the left eye); the appellant did not sustain a superimposed disease or injury to the left eye that caused additional disability during ACDUTRA or INACDUTRA service. CONCLUSIONS OF LAW 1. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 2. The criteria for service connection for an ulcer have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 3. The criteria for service connection for chest pain have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for bunions with hammertoes in the right foot have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 5. The criteria for service connection for bunions with hammertoes in the left foot have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 6. The criteria for service connection for a lumbar spine disorder have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 7. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 8. The criteria for service connection for defective vision in the right eye have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. 9. The criteria for service connection for defective vision in the left eye have not been met. 38 U.S.C. §§ 101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had a period of ACDUTRA service from June 1991 to September 1991, with subsequent INACDUTRA service in the Texas Army National Guard until August 1992. The Board notes that in order to qualify for VA benefits, a claimant must be a “veteran.” A “veteran” is defined 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). 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 line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.” 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA is defined, in part, as “full-time duty in the Armed Forces performed by Reserves for training purposes.” 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). “The term ‘Reserve’ means a member of a reserve component of one of the Armed Forces.” 38 U.S.C. § 101(26). With respect to members of the Army National Guard or Air National Guard, ACDUTRA is defined as full-time duty under section 316, 502, 503, 505 of title 32, or the prior corresponding provisions of law. 38 U.S.C. § 101(22)(c). In the instant case, the appellant has yet to achieve veteran status by virtue of ACDUTRA service. In this regard, the Board notes that the appellant’s DD Form 214 reflects service on ACDUTRA from June 1991 to September 1991, with subsequent service in the Texas National Guard until August 1992. This matter was previously before the Board in July 2017, at which time the Board remanded the matters, in pertinent part, for the Regional Office (RO) to obtain the appellant’s service personnel records to verify all periods of ACDUTRA and INACDUTRA service. Military personnel records received in September 2017 reflect the appellant had no further periods of ACDUTRA service following September 1991. Instead, military personnel record received in September 2011 reflect the appellant had been arrested in November 1991 and had been in custody from that time until his conviction and discharge from the Texas Army National Guard in August 1992. The Board’s July 2017 remand directives also instructed the RO to arrange with the prison officials at the facility where the appellant was incarcerated for medical examinations to be performed for the claimed asthma, chest pain, bunions with hammertoes, lumbar spine disorder, and ulcer. Although the prison officials were unwilling to accommodate the request that medical examinations be provided to the appellant (see November 2019 Report of General Information), the appellant was paroled in January 2020. Upon release from prison, VA has attempted to contact the appellant on several occasions to schedule VA examinations relating to the instant appeal but were unable to reach the appellant at his current phone number and address. See October 2020 VA administrative note. Accordingly, the Board finds that VA has satisfied its duty to assist the appellant in development of the claims as it has made every reasonable effort to schedule the appellant for VA examinations, and that the Board’s July 2017 remand directives have been complied with. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). “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 any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. See 38 U.S.C. § 101(21), (24); 38 C.F.R. § 3.6(a), (d); Biggins v. Derwinski, 1 Vet. App. 474, 477 78 (1991). ACDUTRA is defined as 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. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA’s General Counsel has interpreted that it was the intention of Congress when it defined active service in 38 U.S.C. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. See VAOPGCPREC 86-90. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to an appellant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. Presumptive periods pertaining to “chronic diseases” under 38 C.F.R. § 3.309(a) do not apply to ACDUTRA or INACDUTRA service. See Biggins, 1 Vet. App. at 447 78. 1. Service connection for asthma The appellant generally asserts that he experienced asthma during ACDUTRA and/or INACDUTRA service, which was not formally diagnosed until he was incarcerated. See July 2009 correspondence. Initially, the Board finds that the appellant is currently diagnosed with asthma. A February 2012 private treatment record reflects a diagnosis for asthma. After a review of all the lay and medical evidence of record, the Board finds that the currently diagnosed asthma did not have its onset during ACDUTRA service and is not the result of an injury sustained during INACDUTRA service. Service treatment records during the period of ACDUTRA service from June 1991 to September 1991 do not reflect any in-service complaints, symptoms, diagnosis, or treatment for asthma or related symptoms. The Board notes that a July 1991 service treatment record reflects the appellant complained of left sided chest pain and a tight cramping feeling in the chest. Upon examination of the appellant, the service provider assessed the appellant had too much air in his stomach when breathing and was advised to breathe with his chest and not his stomach. Private treatment records reflect the appellant first reported a history of asthma in January 1994. An April 1995 private treatment record shows the appellant complained of asthma and reported a history of childhood asthma but denied currently needing any medication for treatment and denied any respiratory difficulty; the April 1995 private provider assessed a negative examination for asthma. The April 1995 private treatment record demonstrates that the currently diagnosed asthma did not have its onset during ACDUTRA service from June 1991 to September 1991. Additionally, service treatment records do not show, nor does the appellant assert, sustaining any injury during INACDUTRA service that caused the currently diagnosed asthma. In the July 2009 correspondence discussed above, the appellant contends that the chest pain experienced during ACDUTRA service developed into an ulcer, and then subsequently developed into the currently diagnosed asthma. The Board has considered the appellant’s contention that the current asthma is etiologically related to the chest pain experienced during ACDUTRA service. Although the appellant asserts that the current asthma is related to the chest pain experienced during ACDUTRA service, the appellant is a lay person, and, under the facts of this particular case that include other risk factors for developing asthma such as smoking, does not have the requisite medical training or credentials to be able to render a competent medical opinion regarding the cause of the asthma. The etiology of the appellant’s asthma is a complex medical etiological question involving multiple risk factors. Such disability is diagnosed primarily on clinical findings and physiological testing. Thus, while the appellant is competent to report some asthma symptoms experienced such as difficulty breathing that he believes are asthma symptoms, under the facts of this case, the appellant is not competent to opine on whether there is a link between the current asthma and the reported chest pain experienced during ACDUTRA service. Further, the evidence or record does not contain a competent opinion establishing a nexus between the current asthma and an injury or disease sustained during ACDUTRA service or to any injury sustained during INACDUTRA service. As the record does not contain any competent medical opinion regarding a nexus between the current asthma and the chest pain experienced during ACDUTRA service, the Board finds that the preponderance of the evidence demonstrates that the criteria for service connection for asthma have not been met. For these reasons, the claim for service connection for asthma must be denied. 2. Service connection for an ulcer The appellant asserts that chest pain experienced during ACDUTRA service was a symptom of an ulcer that was not diagnosed until he was incarcerated. See November 2014 correspondence. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the appellant is not currently diagnosed with an ulcer. A February 1993 private treatment record reflects the appellant was being treated for ulcer disease. A September 1994 private treatment record reflects laboratory testing revealed positive test results for a helicobacter pylori infection in the stomach and the appellant was diagnosed with diffuse gastritis. An October 1995 private treatment record reflects the appellant complained of and was treated for heartburn. Private treatment records do not reflect any further complaints, symptoms, treatment, or diagnoses for ulcers. Instead, a June 2002 private treatment record shows the appellant underwent a physical examination and his abdomen and gastrointestinal systems were found to be clinically normal. Private treatment records throughout the relevant claim period on appeal do not reflect any complaints, findings, diagnoses, or treatment for ulcers. Based on the foregoing, the Board finds that the weight of the evidence demonstrates the appellant is not currently diagnosed with an ulcer; therefore, the claim for service connection must be denied. 3. Service connection for chest pain The appellant seeks service connection for symptoms of chest pain. Specifically, the appellant contends that he sought treatment for chest pain during ACDUTRA service, which was diagnosed as an ulcer when he was incarcerated. See November 2014 correspondence. As service connection for an ulcer has been denied in the instant decision above, service connection for chest pain as a symptom of an ulcer must also be denied. After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the appellant is not currently diagnosed with a disability manifested by symptoms of chest pain, other than asthma for which service connection has been denied by the instant decision above. Private treatment records reflect complaints of chest pain have also been associated with gastritis and numbness of the left arm. See August 2002 private treatment record; April 2007 private treatment record. However, private treatment records do not reflect that the appellant is currently diagnosed with gastritis or numbness of the left arm within the relevant claims period on appeal. Furthermore, service treatment records do not reflect any in-service complaints, symptoms, diagnosis, or treatment for gastritis or numbness of the left arm, and the evidence of record does not contain a competent opinion establishing a nexus between gastritis or numbness of the left arm and an injury or disease sustained during ACDUTRA service or to any injury sustained during INACDUTRA service. Based on the foregoing, the Board finds that the weight of the evidence is against finding that the appellant is currently diagnosed with a disability manifesting in chest pain other than the currently diagnosed asthma. In the absence of a current disability, service connection for chest pain must be denied. 4. Service connection for bunions with hammertoes in the right foot 5. Service connection for bunions with hammertoes in the left foot 6. Service connection for a lumbar spine disorder 7. Service connection for hypertension The appellant generally asserts service connection for bunions with hammertoes in the right foot (right foot disorder), bunions with hammertoes in the left foot (left foot disorder), and a lumbar spine disorder is warranted as the claimed conditions existed during ACDUTRA service, but were not diagnosed until the appellant was incarcerated. See July 2009 correspondence. The appellant generally asserts service connection for hypertension. See November 2011 Statement in Support of Claim. Initially, the Board finds the appellant is currently diagnosed with bunions with hammertoes in the right and left feet. See January 2007 private treatment record. The appellant has also been noted to have back pain with limited range of motion. See April 2009 private treatment record. Private treatment records do not reflect that the appellant has been diagnosed with arthritis in the thoracolumbar spine. The appellant also has a current diagnosis for hypertension. See February 2012 private treatment record. After a review of all the lay and medical evidence, the Board finds that the current right and left foot disorders, the current lumbar spine disorder, and current hypertension did not have onset during ACDUTRA service and are not the result of an injury sustained during INACDUTRA service. Service treatment records during the period of ACDUTRA service from June 1991 to September 1991 do not reflect any in-service complaints, symptoms, diagnosis, or treatment for bunions, hammertoes, back pain, any back injuries, or hypertension. Post-service private treatment records reflect the appellant first complained of foot pain in November 1995. In January 1994, the appellant first reported suffering an old back injury in 1988; examination of the appellant’s back revealed a normal gait and full range of motion of the lumbar spine. See January 1994 private treatment record; see also November 1996 private treatment record (normal exam of the back). A July 2010 private treatment record reflects the appellant was first diagnosed with hypertension in 2004. The above private treatment records demonstrate that the currently diagnosed right and left foot disorders, lumbar spine disorder, and hypertension did not have its onset during ACDUTRA service from June 1991 to September 1991. Additionally, service treatment records do not show, nor does the appellant assert, sustaining any injury during INACDUTRA service that caused the currently diagnosed right or left foot disorders, lumbar spine disorder, or hypertension. In a September 2015 VA Form 9, the appellant alternatively asserts that the current hypertension was caused by the claimed asthma, ulcer, chest pain, right and left foot disorders, lumbar spine disorder, and/or defective vision in the right and left eyes. However, as the Board’s instant decision denies service connection for these claimed conditions, and as the appellant is not service-connected for any other disability, service connection for hypertension may not be established on a secondary basis as a matter of law. 38 C.F.R. § 3.310(a). Based on the foregoing, the Board finds that the preponderance of the evidence demonstrates that the criteria for service connection for the right and left foot disorders, lumbar spine disorder, and hypertension have not been met. For these reasons, the claims for service connection for right and left foot disorders, lumbar spine disorder, and hypertension must be denied. 8. Service connection for defective vision in the right eye 9. Service connection for defective vision in the left eye The appellant asserts that service connection for defective vision in the right and left eyes is warranted as he did not have any vision problems upon entry into ACDUTRA service, but was diagnosed with defective vision during ACDUTRA service and now needs glasses. See November 2014 correspondence. For purposes of entitlement to benefits, the law provides that refractive errors of the eyes are developmental defects and not a disease or injury within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eyes, including presbyopia, astigmatism, and hyperopia, even if visual acuity decreased in service, as this is not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. §§ 3.303(c), 4.9. Thus, VA regulations specifically prohibit service connection for refractory errors of the eyes unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). After reviewing all the lay and medical evidence of record, the Board finds that the weight of the evidence shows that the appellant was prescribed glasses to improve visual acuity during ACDUTRA service, but did not sustain a superimposed injury to the eyes that caused additional disability. A June 1991 service treatment record reflects the appellant was diagnosed with defective vision in the right and left eyes and prescribed glasses. The defective vision has since been diagnosed as presbyopia, astigmatism, and hyperopia. See September 2007 private treatment record; September 2010 private treatment record. Service treatment records throughout ACDUTRA service do not show that the appellant complained or was treated for any injury to the eyes that caused additional disability. Additionally, service treatment records do not show, nor does the appellant assert, sustaining any injury to the eyes during INACDUTRA service. (Continued on the next page)   Based on the foregoing evidence, the Board finds that the weight of the evidence demonstrates that the appellant does not currently have an eye disability for VA compensation purposes. The evidence shows that the appellant has refractive errors of the eyes, which by regulatory definition are not disabilities. 38 C.F.R. §§ 3.303(c), 4.9. Moreover, the evidence demonstrates that the appellant did not sustain a superimposed disease or injury to the eyes during ACDUTRA or INACDUTRA service that created additional disability; thus, the current refractive errors of the eyes are not subject to service connection. For these reasons, the Board finds that a preponderance of the evidence is against the claims for service connection for defective vision in the right and left eyes. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Choi, 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.