Citation Nr: 21063943 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-07 390 DATE: October 18, 2021 ORDER Entitlement to service connection for residuals of stress fracture, left leg is denied. REMANDED Entitlement to service connection for bilateral plantar fasciitis is remanded. Entitlement to service connection for residuals of cervical spine surgery is remanded. FINDING OF FACT The preponderance of the evidence is against finding that residuals of a left leg stress fracture began during active military service, or are otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of stress fracture, left leg have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to June 1981, on active duty for training (ACDUTRA) from March 1987 to June 1988, and on active duty from August 1990 to July 1991. He also had additional service in the Air Force Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in May 2018. A transcript is of record. The Board remanded the appeal in July 2018; there has been substantial compliance with the remand directives. SERVICE CONNECTION 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). Active military service includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). Service connection is available for injuries and diseases incurred during active duty or ACDUTRA, but except for the exceptions listed, only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). If a claim relates to period of active duty for training, a disease or injury resulting in disability must have manifested itself during that period. Paulson v. Brown, 7 Vet. App. 466 (1995). Reserve and National Guard service generally means ACDUTRA and INACDUTRA. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316 , 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist or Guardsman's initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316 , 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6 (d). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. In other words, when a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty on Reserve ACDUTRA/INACDUTRA or during Federalized National Guard service. In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service" and the claimant would not achieve veteran status for purposes of that claim. See 38 U.S.C. § § 101 (2)-(24). Entitlement to service connection for residuals to stress fracture The Veteran seeks service connection for a left leg stress fracture/shin splint which he believes was incurred during his Reserve service. At the May 2018 hearing, he testified that his condition is related to running during active duty orders while a Reservist. He indicated that he was treated for these conditions during Reserve service. The Veteran indicated that these conditions did not onset during his initial periods of active service prior to 2003, but occurred sometime between 2003 and 2007. The Board remanded this appeal in July 2018 to verify the Veteran's service dates as a member of the Air Force Reserves and determine which periods of service included active duty, ACDUTRA or INACDUTRA. In compliance with the Board's Remand, the RO obtained the Veteran's service records in May 2019. These records included some of the dates for the Veteran's Guard and or Reserve Active Service (GRAS). The Veteran was a member of the Air Force Reserves from September 2001 until January 2013. There has been substantial compliance with this particular remand directive. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Furthermore, the Board directed the RO to request any outstanding records from the Veteran's Reserve unit. In an October 2019 VA 21-4138, the Veteran reported that he was assigned to the 514 AMW/732 Airlift Squadron from 1986 to 2003. From 2003 until 2013, the Veteran was assigned to 514 AMW Command Staff. Both units were located at the same building and location at McGuire AFB. The RO has made numerous attempts to obtain records from the 514 AMW/732 Airlift Squadron and at least one attempt to obtain records from the 514 AMW Command Staff. See correspondence from February 2020, February 2020, March 2020, April 2020, May 2020, and June 2020. There was no response. The Veteran was informed of the failure to obtain these records in February 2020, April 2020, May 2020, and June 2020. See also July 2021 correspondence. There has been substantial compliance with this remand directive. The Board finds the preponderance of the evidence is against the Veteran's claim for service connection for residuals of a left leg stress fracture. Consistent with the Veteran's assertions, service treatment records prior to 2003 do not reflect complaints or findings related to a left leg stress fracture or shin splints. Despite the Veteran's assertions that his stress fracture/shin splint onset sometime between 2003 and 2007, Reserve service records dated between 2003 and 2007 do not show any injury, complaints, or findings related to a left leg stress fracture or shin splint symptoms. A medical review in February 2003 shows the Veteran was worldwide qualified; no pertinent findings were noted in the physical examination summary. A Physical Profile Serial Report dated in January 2004 shows the Veteran was determined to be qualified for worldwide deployment. A medical record from the Lacey Diagnostic Imaging Center dated April 2, 2012 reflects the Veteran report that he had experienced heel pain after purchasing a new pair of shoes; while that pain subsided, his left shin had since swelled and was very sore. The note reflects that he had not been running for the past three months because of his heel pain, and now because of the anterior shin pain. The musculoskeletal status was noted as 'anterior tibial non-compartment syndrome [shin splints] vs tibial stress fracture.' The assessment was non-traumatic compartment syndrome. On April 3, 2012, the Veteran underwent X-rays of his left tibia and fibula. The impression was minimal focal periostal and cortical thickening which could be related to a stress fracture; correlation with the clinical findings was suggested. Additional records from this private clinician show the Veteran was seen a few more times in April, and in May 2012 his anterior tibial stress fracture was noted to be healing. VA treatment records include an April 10, 2012 clinical note showing the Veteran had a physical at McGuire Air Force Base that same day. He reported "I had a stress fracture to my left foot and that swells at times." Another VA clinical record dated August 14, 2012 shows the Veteran reported that he was treated for tibial stress fracture and compartmental syndrome anterior shin. The note indicates that he had adjusted his running to less frequent and shorter distance. He since had followed up and had healed and had resumed running again. Following physical examination, assessment was 'stress fracture left tibia - followed by private orthopedics with x-ray three months ago.' Pursuant to the Board's Remand, the Veteran was afforded a VA knee and lower leg examination in September 2020. At the examination, the Veteran reported an onset of his symptoms in 2012. He indicated that he noticed bilateral foot pain and was diagnosed with left leg stress fracture. The examiner noted a diagnosis of nontraumatic compartment syndrome and indicated he had reviewed the service records identified by the Board's remand. In the accompanying September 2020 opinion, the VA examiner indicated that it was less likely than not that the Veteran's claimed condition was related to an in-service event, injury, or illness. In support of the opinion, the examiner indicated that there are no medical records that discuss the Veteran's complaint of left leg stress fracture/shin splint between 2003 and 2007. The examiner indicated that a few records dated in April 2012, many years after the Veteran was discharged from active duty, showed treatment for such. The Veteran also reported that the condition onset in 2012, with complaints of bilateral foot pain leading to a diagnosis of left leg stress fracture. Based on review of the record, service connection for a left leg stress fracture/shin splint is not warranted. As indicated, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. Review of the available service records does not reflect a left leg stress fracture or shin splint disorder or injury during a period of active service, that is during a verified period of ACDUTRA, or a left leg stress fracture or shin splint injury a period of verified INACDUTRA service. The available service records show the Veteran's periods of ACDUTRA and INACDUTRA while in the Reserves did not include the April 2012 dates during which he was diagnosed with a left leg tibia stress fracture and compartment syndrome. Moreover, the April 2012 private records show the compartment syndrome, or shin splints, was of a non-traumatic origin. The claimant bears the burden of establishing veteran status during periods of ACDUTRA or INACDUTRA. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). There is no other competent, credible evidence that the Veteran's left leg tibia stress fracture/shin splint was caused or aggravated by any period of ACDUTRA, INACDTURA, or active duty service. Accordingly, the preponderance of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. Entitlement to service connection for left leg tibia stress fracture/shin splint is denied. REASONS FOR REMAND 1. Entitlement to service connection for bilateral plantar fasciitis is remanded. The Veteran seeks service connection for bilateral plantar fasciitis. At the May 2018 hearing, the Veteran testified that his plantar fasciitis is due to running during active duty orders while a Reservist. He indicated that he was treated for this condition during his Reserve service. In April 2012, the Veteran was noted to have bout of heel pain after new running shoes. He reported recurrent foot pain in July 2015. In a subsequent July 2015 private treatment record, the Veteran reported that his pain began in 2009 when he was referred by military physicians for shin pain and plantar fasciitis. The Board has reviewed the available service treatment records; there are no records showing a diagnosis and/or treatment for plantar fasciitis. It appears the Veteran may have had some ACDUTRA service during 2009, including between January 2009 and July 2009. The specific dates are unclear. On remand, the AOJ must contact the appropriate Federal records repository and obtain a list of all of the Veteran's Air Force Reserve service dates in 2009. At a September 2020 VA foot condition examination, a VA examiner noted a diagnosis of bilateral plantar fasciitis. The Veteran reported that he began having feet problems in the Air Force. In the accompanying September 2020 opinion, the VA examiner indicated that it was less likely than not that the Veteran's plantar fasciitis was related to service. In support of the opinion, the examiner seemed to rely on a lack medical records that documented bilateral plantar fasciitis or foot pain during active service between 2003 and 2007. 2. Entitlement to service connection for residuals of cervical spine surgery The Veteran asserts that he incurred or aggravated a neck disorder during his Reserve service. At the May 2018 hearing, the Veteran testified that the original injury to his neck occurred in a motor vehicle accident in 2003 while deployed to Baghdad. He did not report sustaining any specific injuries or that he received any specific cervical spine treatment at that time. The Veteran also testified that during his Reserve service in 2007, he aggravated his neck problems and received treatment during Reserve service. An information report obtained from VADIR (Veterans Affairs and Department of Defense Identity Repository) shows a deployment period between December 1, 2003 and December 31, 2003; the Veteran was receiving hostile fire/imminent danger pay during this period. Records from the 305th Medical Group Clinic dated in September 2007 reflect that the Veteran was diagnosed with degenerative disc disease at C5-C6 following an MRI five to six years prior, although another note from the Clinic in 2007 indicates an MRI in 1998 showed degenerative joints in the neck. An informal line of duty determination dated in August 2008 shows the Veteran was on 'active duty status' between May 9, 2007 and December 4, 2007. The record indicates the Veteran had left sided trapezius shoulder pain for about one month and on September 15, 2007 reported at the Urgent Care Clinic at the 305th MDG. An MRI the following week showed disc bulges at multiple levels, with C-5 being the most concerning with some touching of the spinal cord. The line of duty determination included a recommendation that C-5 and C-6 degenerative disc disease was "EPTS-Service Aggravated." Pursuant to the Board's Remand, the Veteran was afforded a VA cervical spine examination in September 2020. The examiner noted a diagnosis of degenerative arthritis of the spine, with a date of diagnosis in March 2015, and residuals of anterior discectomy and fusion at C5/C6, with a date of diagnosis in 2007. The examiner opined that the claimed neck condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. However, the examiner's rationale discussed normal neck findings from 1976 and 1981, and noted that "he was seen a few times for neck pain starting after 2007, which is many years after he was discharged from the Air Force." A review of the record evidence shows that the Veteran had multiple unverified periods of active service, including what appears to possibly have been some periods of ACDUTRA and INACDUTRA between 2007 and 2013. Unfortunately, it is not clear from a review of the record evidence whether any of the cervical spine complaints and treatment in 2007 was during a period of active service, ACDUTRA and whether a pre-existing cervical spine disorder was aggravated during such. On remand, the AOJ must contact the appropriate Federal records repository and obtain a list of all of the Veteran's Air Force Reserve service dates in 2007 and clarify what periods are ACDUTRA and INACDUTRA. These matters are REMANDED for the following action: 1. Review the Veteran's service dates as a member of the Air Force Reserves and compile a complete list of any verified periods of active duty, ACDUTRA, and INACDUTRA. Such verification should include the years from 2003 to 2007; May 9, 2007 to December 4, 2007; and between January 2009 and July 2009. 2. Obtain an addendum opinion regarding the etiology of the Veteran's bilateral plantar fasciitis and cervical spine disability. All ACDUTRA and INACDUTRA dates must be verified prior to obtaining a medical opinion so that the medical examiner can consider the appropriate dates. a) The examiner is asked to opine whether it is at least as likely as not that the Veteran's bilateral plantar fasciitis onset or is related to a period of ACDUTRA in 2009, or is due to an injury during a period of INACDUTRA in 2009. A rationale should be provided. In doing so, the examiner should consider whether the Veteran's reports about his symptoms align with how plantar fasciitis is known to develop such that his reported injuries during active service could have led to his current diagnosed disability; or rather, whether the Veteran's report of injury and symptoms during a period of ACDUTRA or INACDUTRA, and symptoms thereafter, are generally inconsistent with medical knowledge or implausible. b) The examiner is asked to opine whether it is at least as likely as not that any cervical spine disability experienced by the Veteran since 1998 or 2001 was aggravated by any period(s) of ACDUTRA or INACDUTRA between January 2003 and December 2007, as is specifically asserted. A rationale should be provided. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.