Citation Nr: 21075116 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-27 476 DATE: December 17, 2021 REMANDED The claim for service connection for lumbar spine disability is remanded. The claim for service connection for cervical spine disability is remanded. The claim for service connection for residuals, right ankle fracture is remanded. The claim for service connection for migraine headaches is remanded. The claim for service connection for tremors is remanded. The claim for service connection for seizing of the right side of the body is remanded. The claim for service connection for seizing of the left side of the body is remanded. The claim for a total rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1998 to February 1999 and from May to June 2008, with additional service in the Army Reserve, Air Force Reserve, Navy Reserve, and Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran withdrew her request for a Board hearing. This matter was previously before in April 2021 and September 2021 at which times the case was remanded for additional development. There has been substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the Veteran filed an appeal under the Appeals Modernization Act (AMA) regarding the issue of reasonableness of attorney fees from past-due benefits awarded in May 2021 which is currently pending. See November 2021 Board remand. After reviewing the Veteran's record in its entirety, the Board finds that further development is needed to clarify her periods of qualifying service. In addition to the Veteran's recognized active duty periods noted above from September 1998 to February 1999 and June to July 2008, she served for many years as noted with the Army Reserve, Air Force Reserve, Navy Reserve, and Army National Guard. She was released on permanent disability retirement in June 2020. Unfortunately, it is not clear from the record whether and what qualifying periods of service the Veteran had prior to and from September 1998 to February 1999 and June to July 2008 while she was serving with the Army Reserve, Air Force Reserve, Navy Reserve, and Army National Guard. This determination is essential in view of the Veteran's reports of experiencing multiple assaults in service and her contention that all her claimed disabilities are related to those assaults. The Veteran reports that a military sexual trauma (MST) occurred on active duty on September 11, 2001, and that she was subjected to another MST on September 30, 2005, as well as a physical assault in 2010 (see May 2018 records from D. Adams, DC). Regarding the MST in September 2005, a January 2019 Statement of Medical Examination and Duty Status shows that her report of MST on September 30, 2005 was in the line of duty with the notation "2001-2018 While on Active Duty (Annual Training, Title 10 Orders, Military school)". Moreover, the Veteran asserted in writing in August 2021 that she has more active duty then the Board stated in its April 2021 Decision/Remand. She later informed the Board in August 2021 that she wanted the Board to correct her DD Form 214 to reflect her dates of service as being from September 1998 to June 2020. While it is the function of the military, not the Board, to make corrections to service personnel records including DD Forms 214, it is the Board's responsibility to determine the dates of the Veteran's qualifying service for VA benefit purposes to include qualifying active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). Determining the dates of the Veteran's qualifying service is particularly essential when considering the extensive medical records on file from 1998 to 2020, some of which pertain to the claimed disabilities on appeal. Notably, regarding the Veteran's claim for service connection for a back disability, results of a lumbar magnetic resonance imaging performed in September 2018 reveal a vertically oriented bone bruise within the ventral cortex of the L5 vertebrae indicating posttraumatic, inflammatory, and reparative change. It is also noteworthy to point out that in rendering medical nexus opinions in this appeal on a direct basis, the June 2021 examiner relied on 2008 as the date that the Veteran separated from service without considering any subsequent qualifying service periods. Also, there appear to be outstanding medical records pertinent to this appeal that should be obtained. 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159. This is based on chiropractic records from Adams Chiropractic Center in May 2018 which note that prior to that date the Veteran had had multiple episodes of medical and chiropractic care to include chiropractic treatment with Greg Griffin DC. It is also based on the Veteran's report on an August 2019 Report of General Information that she was having surgery on her spine. In addition, the Agency of Original Jurisdiction should update the Veteran's VA treatment records. Regarding the Veteran's claim for a TDIU, the Board pointed out that notwithstanding the Veteran's assignment of a 100 percent rating for PTSD, TDIU consideration was still on appeal since a TDIU award and a SMC (special monthly compensation) award under 38 U.S.C. § 1114(s) could be a greater benefit. Consequently, as this issue is inextricably intertwined with the service connection claims above, it is deferred pending resolution of the service connection claims. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for private medical treatment she received for her claimed disabilities to specifically all chiropractic treatment and surgery for her lumbar and cervical spine disabilities. Obtain any identified outstanding records and associate them with the claims file. Document all attempts to obtain the identified evidence in the record. 2. Update the Veteran's VA treatment records for the period from July 2021 to present. 3. Verify the Veteran's dates of qualifying service other than from September 1998 to February 1999 and from May to June 2008, to include ACDUTRA and INACDUTRA service. Service records providing retirement points are insufficient in this regard. The AOJ should prepare a summary of such dates, or document for the record why the production of a summary of service dates is not possible. If records do not exist or further efforts to obtain the records would be futile, notify the Veteran in accordance with 38 C.F.R. § 3.159(e). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Shawkey, 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.