Citation Nr: 21071216 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 16-36 403 DATE: November 30, 2021 ORDER The claim of entitlement to service connection for atrial fibrillation is denied. The claim of entitlement to service connection for stasis dermatitis is denied. The claim of entitlement to service connection for bilateral degenerative arthritis of the feet is denied. FINDINGS OF FACT 1. The Veteran's atrial fibrillation is not a disease or injury incurred or aggravated in the line of duty during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA), and is not otherwise related to any period of service. 2. The Veteran's stasis dermatitis is not a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA, and is not otherwise related to any period of service. 3. The Veteran's bilateral degenerative arthritis of the feet is not a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA or INACDUTRA, and is not otherwise related to any period of service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for atrial fibrillation have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 2. The criteria to establish service connection for stasis dermatitis have not been met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. 3. The criteria to establish service connection for bilateral degenerative arthritis of the feet have not been 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 Veteran served on ACDUTRA in the Army National Guard from February 1974 to June 1974. The Veteran also had multiple periods of INACDUTRA. These matters are before the Board of Veteran's Appeals (Board) from the June 2017 and November 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for atrial fibrillation, statis dermatitis, and bilateral foot degenerative arthritis. The Board remanded the Veteran's claims for service connection in April 2019 for medical examinations and opinions. The April 2019 remand noted the Veteran's period of service from February 1974 to June 1974 was found to be ACDUTRA. The remand noted the Veteran's March 1977 motor vehicle accident (MVA) during a period of INACDUTRA and directed VA examinations to address whether any of the claims were the result of the MVA as the Veteran claimed. The Board remanded the Veteran's claims again in June 2021, and also identified and remanded the issue of bilateral degenerative arthritis of the feet. The June 2021 remand directed that addendum medical opinions needed to be provided for the Veteran's claims to address the allegations that his claims were caused by his March 1977 MVA. The Board notes the RO in November 2017 denied the Veteran's claims as the RO found there was no new and material evidence submitted to warrant reopening of the Veteran's claims. The Board finds the June 2017 rating decision was not final as the Veteran continuously pursued the claims before the Board and filed a timely Notice of Disagreement. As such new and material evidence is not required, as the Veteran's claims are still active and the issue of new and material evidence will not be addressed herein. The Board also notes the Veteran's service treatment records were unavailable despite efforts of VA, as noted in the January 2015 correspondence sent to the Veteran detailing the efforts made to retrieve his records. Service Connection These claims involve a period of service known as INACDUTRA, which is, in general, part-time duty by Reservists or National Guard members for training purposes, sometimes characterized as "weekend drill." See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). ACDUTRA, is by contrast, among other things, full-time duty in the Armed Forces performed by Reservists or members of the National Guard of any state for training purposes. See 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). ACDUTRA is considered active military service for the purpose of establishing VA benefits when the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty during such period. 38 U.S.C. § 101(24). INACDUTRA is similarly considered, but includes an additional limitation, in that the only covered diseases subject to service connection during such a period of service are acute myocardial infarction, cardiac arrest, and cerebrovascular accident. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a),(d). Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106(d); 38 C.F.R. § 3.6(e). In sum, when a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" based upon that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101(2), (24). 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). For a claimant to establish veteran status under 38 U.S.C. § 101 (24)(B) based on aggravation in the line of duty, he must show that he experienced a permanent increase in disability beyond the natural progress of that disease or injury during a period of ACDUTRA or INACDUTRA. Donnellan v. Shinseki, 24 Vet. App. 167, 172-74 (2010). Just establishing that a disability worsened during service is not enough, since the presumption of aggravation does not apply where a claim is based on a period of ACDUTRA or INACDUTRA. See Smith v. Shinseki, 24 Vet. App. 40, 48, n.7 (2010). Furthermore, temporary, or intermittent flare-ups of a pre-existing condition during service are not sufficient to be considered aggravation of the condition, unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Entitlement to service connection for atrial fibrillation The Veteran contends he is entitled to service connection for atrial fibrillation. Specifically, the Veteran contends that his atrial fibrillation was due to his March 1977 MVA. The Veteran's service records noted a Line of Duty report for a March 1977 MVA that noted a laceration to his left leg, a swollen right ankle, and a contusion to his coccyx. The Duty Status report indicated a determination of a physician. The Board finds it is competent, credible, and with significant probative weight. The Veteran received a heart conditions VA examination in September 2019 that noted a diagnosis of atrial fibrillation in 2000 or so with symptoms of shortness of breath and palpitations. The examiner noted a constant atrial fibrillation. The medical opinion provided found the Veteran's atrial fibrillation was likely the result of his hypertension, some underlying heart disease or unknown etiology. The examiner noted that current medical literature and the Veteran's history and records did not support his MVA as a cause for his atrial fibrillation. The Board remand in April 2019 found the examiner's opinion was inadequate and a new VA examination was to be provided. The Veteran received another VA examination in July 2021 that noted the Veteran's atrial fibrillation was diagnosed in 2008 with trouble breathing and irregular heartbeat. The examiner noted the Veteran's arrhythmia, and also a heart valve issue that was an insignificant finding and no diagnosis was provided. The examiner noted the Veteran's morbid obesity, his Charcot feet, and his overall physical deconditioning. The examiner provided a medical opinion that found the Veteran's atrial fibrillation was diagnosed 30 years after the 1977 MVA. Additionally, the examiner noted there was no record of injury of treatment from the MVA that would have caused atrial fibrillation. The examiner noted the time lag was far to long for any rationale of cause. The Board finds the VA examination and medical opinion are competent, credible, and with significant probative weight. Here, there is no indication in the competent evidence of record that the Veteran's atrial fibrillation was aggravated beyond the normal progress of his condition during a period of ACDUTRA or INACDUTRA. Also, there is no competent medical evidence of a causative connection between the Veteran's atrial fibrillation and his 1977 MVA. While the Board recognizes the Veteran believes his atrial fibrillation was an injury or disease connected to his MVA in 1977, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. 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 competent, probative medical evidence of record denying an etiological relationship. When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the preponderance of the evidence is against the claim and service connection for atrial fibrillation is not warranted. Entitlement to service connection for stasis dermatitis of the bilateral lower extremities The Veteran contends he is entitled to service connection for statis dermatitis. Specifically, the Veteran contends that his stasis dermatitis was due to the March 1977 MVA. The Veteran's service records noted a Line of Duty report for a March 1977 MVA that noted a laceration to his left leg, a swollen right ankle, and a contusion to his coccyx. The Duty Status report indicated a determination of a physician. The Board finds it is competent, credible, and with significant probative weight. The Veteran received a VA examination for skin diseases in September 2019, that noted his bilateral lower extremity stasis dermatitis diagnosed in 2017. The Veteran's right foot diabetic ulcer was also noted. The examiner noted the Veteran's bilateral lower extremity swelling, with bilateral lower extremity diabetic peripheral neuropathy with a current ulcer on the bottom of his right foot. The Veteran's current symptoms were noted as dry, dark, scaly skin of the bilateral lower extremities. The Veteran's dermatitis was noted over 20 percent to 40 percent over his total body area. The examiner noted there was no evidence or rationale to conclude the Veteran's stasis dermatitis could have been caused by or incurred by an MVA. The Board remand of June 2021 found the examiner's opinion from September 2019 to be inadequate and directed another opinion be provided. The Veteran received another VA examination for his skin in July 2021. The Veteran's chronic stasis dermatitis of the bilateral lower extremities was noted with an onset in 2008. The examiner noted leg cramps, swelling, discoloration, and stripping varicose veins in 2012 which did not help with symptoms. The examiner also noted the Veteran had bilateral leg cellulitis several times and was hospitalized both with in and out-patient instances using intravenous drips and oral antibiotics several times. The examiner's opinion found there were no records, history, evidence, or medical rationale indicating the Veteran's bilateral stasis dermatitis was incurred in or caused by the March 1977 MVA. The examiner explained there was no record of a bilateral foot injury, event, or condition that would cause his bilateral stasis dermatitis, rather the examiner found it was more likely genetics caused venous insufficiency. The Board finds the VA examination to be competent, credible, and with significant probative weight. There is no indication in the evidence of record that the Veteran's stasis dermatitis was aggravated beyond the normal progress of his condition during a period of ACDUTRA or INACDUTRA. Also, there is no competent medical evidence of a causative connection between the Veteran's stasis dermatitis and his 1977 MVA. While the Board recognizes the Veteran believes his stasis dermatitis was an injury or disease connected to his MVA in 1977, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. 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 competent, probative medical evidence of record that denies a causal connection between the Veteran's claimed condition and his 1977 MVA. When the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the preponderance of the evidence is against the claim and service connection for stasis dermatitis is not warranted. Entitlement to service connection for bilateral degenerative arthritis of the feet The Veteran contends he is entitled to service connection for bilateral degenerative arthritis of the feet (hereinafter degenerative arthritis). Specifically, the Veteran contends that his degenerative arthritis was due to the March 1977 MVA. The Veteran's service records noted a Line of Duty report for a March 1977 MVA that noted a laceration to his left leg, a swollen right ankle, and a contusion to his coccyx. The Duty Status report indicated a determination of a physician. The Board finds it is competent, credible, and with significant probative weight. The Veteran received a VA examination for his feet in September 2019 that found the Veteran had degenerative arthritis of both feet. The medical opinion noted the Veteran's age could not be ruled out as a factor and thus it was less likely that his degenerative arthritis was caused or incurred as a result of his MVA. Pursuant to the June 2021 Board remand the VA examiner's opinion from September 2019 was found to be inadequate. A new medical examination was provided in July 2021. The July 2021 VA examination noted the Veteran's degenerative arthritis of both feet from 2019 and noted his Charcot disease diagnosed in 2017. The examiner noted the Veteran's report of onset of bilateral foot pain in 1974 that worsened over the years. The Veteran reported he lost his balance when walking due to his left great toe amputation, he had Charcot joints, and loss of sensation due to diabetic neuropathy. The examiner noted the Veteran's degenerative arthritis was severe with no sensation in his feet due to diabetic peripheral neuropathy. The examiner found no records, treatment, or evidence that suggested the Veteran's degenerative arthritis was incurred in or caused by his MVA. The examiner explained there was no record of a bilateral foot injury, event, or condition that would cause his bilateral foot arthritis and found the arthritis was more likely due to wear and tear, due to aging, obesity, and his Charcot foot disease which the examiner indicated was due to his bilateral diabetic peripheral neuropathy. The Board finds the VA examination was competent, credible, and with significant probative weight. In reviewing the competent evidence of record, the Board finds there is no competent medical evidence of a causative connection between the Veteran's degenerative arthritis and his 1977 MVA, nor any period of service. While the Board recognizes the Veteran believes his degenerative arthritis was due to an injury or disease connected to his MVA in 1977, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. 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 competent, probative medical evidence of record denying an etiological relationship. When the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the preponderance of the evidence is against the claim and service connection for bilateral degenerative arthritis of the feet is not warranted. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C.A. Teich, 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.