Citation Nr: 21075165 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-38 374 DATE: December 17, 2021 ORDER Entitlement to service connection for multiple sclerosis (MS) is denied. FINDING OF FACT The Appellant is not a veteran for VA disability compensation purposes. CONCLUSION OF LAW The criteria for entitlement to service connection for MS are not met. 38 U.S.C. §§ 101, 5107; 38 C.F.R. §§ 3.6, 3.102. REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served in the Army Reserves from January 1981 to November 1992 with a period of active duty for training (ACDUTRA) from AprilJuly of 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 Rating Decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. A Board hearing was conducted via video conference with the RO in Philadelphia, Pennsylvania. A transcript of this hearing is contained within the electronic claims file. The Veterans Law Judge (VLJ) who conducted the hearing no longer is employed by the Board. In October 2021, the Board sent to the Appellant a letter informing her that she had the option to have another hearing in front of a different VLJ or for the Board to proceed with adjudication. The letter indicated that failure to respond within thirty days would result in the latter. As of the date of this Decision, the Appellant has not replied. Thus, the Board may proceed with adjudication, satisfied that due process has been respected. See 38 U.S.C. § 7102(a); 38 C.F.R. § 20.604. The Appellant argues that she began experiencing symptoms of MS during her reserve service and, at a minimum, within seven years of such service. See Feb. 19, 2015, Hr'g Tr. (Tr.) at 3; May 19, 2014, Notice of Disagreement (NOD). In a March 2018 Decision, the Board remanded this claim to (1) provide the Appellant the opportunity to submit any other additional medical records, (2) have the agency of original jurisdiction (AOJ) ascertain the Appellant's entire period of reserve service, and (3) afford the Appellant a VA examination and etiological opinion. Concerning the latter, the Board asked the examiner whether the Veteran's MS arose during any period of ACDUTRA or INACDUTRA or within the seven-year presumptive period. In September 2018, the Veteran was sent the necessary form to identify any outstanding medical records. She identified none. In August 2019, the AOJ secured the necessary documents to confirm the Appellant's service and provided the requested examination and opinion (discussed more fully below). Thus, the Board is satisfied that the AOJ substantially has complied with its prior remand directives, permitting readjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In rendering a decision on appeal, the Board must analyze the competency, credibility, and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Buchanan v. Nicholson, 451 F.3d 1331, 133537 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1380 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). Generally, to qualify for VA benefits, a claimant must be a veteran. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). One of the benefits administered by VA that is reserved specifically for veterans is disability compensation, and a claim for such disability has five elements: (1) veteran status, (2) existence of a disability, (3) service connection of that disability, (4) degree of disability, and (5) effective date of the disability. D'Amico v. West, 209 F.3d 1322, 1326 (2000). Accordingly, to establish this entitlement to disability compensation benefits, he or she must first establish "veteran" status. The term "veteran" is defined in 38 U.S.C. § 101(2) 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." The term "active military, naval, or air 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 line of duty, and (3) any period of inactive duty training (INACDUTRA) 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); Biggins v. Derwinski, 1 Vet. App. 474, 47778 (1991); 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 INACDUTRA is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 United States Code or the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one veteran status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a period of such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. The Appellant's January 1981 report of medical history (RMH) for her period of ACDUTRA does not identify that she was suffering from any problems, and the corresponding report of medical examination (RME) confirms the same. A March 1986 and July 1989 RMH and RME also do not reveal any relevant, abnormal findings. Post-service private treatment records from late 1995 show an initial diagnosis of MS. On her March 2013 VA Form 21-526EZ, the Appellant claims a diagnosis with MS in 1985. In her May 2014 NOD, it is alleged that she had been given an out-processing examination from the Army Reserves stating it "most likely would have shown early signs of MS prior to discharge." In a June 2014 VA Form 21-4138, the Appellant states that she began experiencing in 1995 feelings of dizziness. She initially was told by doctors that it was vertigo; however, after she reported feelings of numbness in her feet and hands, she began to undergo testing. She thereafter was diagnosed with MS. At her hearing, she testified that she began experiencing tremors and sought treatment for them "maybe a month" after her service. Tr. at 34. It is unclear whether the Representative's questioning of "How long after your service" was implied to mean after her period of ACDUTRA or her entire period in the reserves. An April 2015 statement from the Appellant's former SergeantS.M.discusses the Appellant's period of reserve service. In essence, S.M. relates that the Appellant started her period of reserve service physically fit, but, towards the "later years of [their] service," S.M. began noticing changes. The Appellant eventually began sitting down more frequently, would ask to return to the barracks, and would state that she feels weak. Towards the end of their time together, the Appellant was "struggling to complete the PT test which was never a problem for her before . . . ." An August 2020 VA examination report noted physical examination of the Appellant and review of the claims file and recited the Appellant's complaints and medical history. The report confirms the 1995 diagnosis of MS. There were two medical opinions obtained. The first states that the Appellant has MS, which has progressed significantly. The examiner "was not able to find any records describing her medical condition [during] service. Regarding the question when her MS began, I cannot render an opinion without resorting to speculation." The other opinion stated the following: "[MS] is a demyelinating disease, which is due to autoimmune attack on the immune system. Its exact cause is unknown; however, there is no known cause or reason to suspect that this condition is related to military service." The second examiner also opined that MS likely arose within the seven years after the Appellant's discharge from reserve service. In reaching this conclusion, he stated that The [Appellant] served as a reservist from 1981-1989, with active duty training in1981. A credible statement from Sergeant Major [S.C.] states that symptoms of weakness and fatigue began during her period of service as a reservist, with a noticeable and dramatic decline in performance of duties over the last few years of her reserve service. This would fall within 7 years of ACDUTRA. Therefore, the [Appellant's] claimed MS was at least as likely as not manifested within 7 years of ACDUTRA. The Appellant had no active duty service, so the only way she can attain veteran status is to show that she either suffered a disability from an injury or disease incurred or aggravated during a period of ACDUTRA, or suffered a disability from an injury incurred or aggravated during a period of INACDUTRA; the record reveals neither. See 38 U.S.C. § 101(24); Biggins, 1 Vet. App. at 47778; 38 C.F.R. § 3.6(a). The Appellant claims compensation for MS, which, as the VA August 2020 examiner explained, is a "demyelinating disease." (Emphasis added). Thus, the Board is confined to examining the Appellant's period of ACDTURA only, as veteran status for a period of INACDUTRA can be based upon only an injurynot a disease. See Biggins, 1 Vet. App. at 47778. Assessing the record, the Board does not find that the Appellant's MS was incurred in or aggravated by her three-month period of ACDUTRA. Her STRs show no complaints of, treatment for, or diagnosis of MS. S.M.'s personal statement also confirms that the Appellant did not began experiencing symptoms identified with MS until the later years of their reserve service. Most convincingly, the August 2020 VA examiner stated that the there is "no cause to suspect that this condition is related to military service." True enough, the Appellant argues for, and the VA examiner agrees, that her MS manifested within seven years from her period of ACDUTRA. But the applicability of presumptive service connection for a chronic condition puts the proverbial "cart before the horse," as issues of presumptive service connection do not come into play until veteran status has been obtained. That is precisely why despite being a chronic condition for which presumptive service connection exists if it manifests within seven years from separation of active duty service, see 38 C.F.R. §§ 3.307(a)(3), 3.309(a), the application of presumptive service connection for MS is prohibited in this case. See Smith v. Shinseki, 24 Vet. App. 40, 47 (2010) ("By definition, the presumption of service connection applies where there is no evidence that a condition began in or was aggravated during the relevant period of service. By contrast, for a claimant whose claim is based on a period of [ACDUTRA] to establish entitlement to benefits, there must be some evidence that his or her condition was 'incurred or aggravated' during the relevant period of service." (Emphasis in original) (footnote omitted) (citing 38 U.S.C. § 101(24)(B))); see also Paulson v. Brown, 7 Vet. App. 466, 470 (1995) (holding that, if a claimant did not serve for any period of time on active duty, he or she must establish service connection for a disability on a direct basis first in order to achieve "veteran" status and be entitled to compensation). Thus, it was unnecessary for the Board to ask in its prior remand to obtain a medical opinion regarding whether MS manifested within seven years from the Appellant's ACDUTRA or entire reserve service. Accordingly, the Appellant's MS claim cannot be based on a presumptive theory for any period of her reserve service. There are two additional points to be discussed: the Appellant's assertion on her original claim that she was diagnosed with MS in 1985 and dissatisfaction with a lack of an out-processing examination. To the former, the Board does not afford this indication any credibility. The earliest medical records available show a diagnosis of MS in late 1995. The Appellant even later contradicts herself in her June 2014 personal statement when she indicates that she did not begin to experience MS symptoms until 1995 in the form of dizziness and numbness in her hands and feet. Lastly, when afforded the opportunity by the Board to submit or identify any other outstanding medical records that could confirm an earlier diagnosis, she neither identified nor provided any. Thus, the Board is satisfied that the record adequately establishes the Appellant's initial diagnosis of MS in 1995. To her displeasure with not being afforded a general out-processing examination upon separation from the reserves, the Board hopes to ease her frustration. That fact would have mattered little to her claim. Even if a medical examination sometime around November 1992 showed symptoms or even a diagnosis of MS, MS is a diseasenot an injury. As noted above, the Board can consider the Appellant's period of ACDUTRA only (not INACDUTRA), and the record clearly establishes (as discussed above) that her MS is too far removed from that three-month period during 1981. Because the Appellant did not (1) serve on active duty, (2) suffer a disability from an injury or disease incurred or aggravated during her period of ACDUTRA, or (3) suffer a disability from an injury incurred or aggravated during her period of INACDUTRA, she is not considered a veteran for VA disability compensation purposes, and her claim, therefore, must be denied. See 38 U.S.C. § 101(24); Biggins, 1 Vet. App. at 47778; 38 C.F.R. § 3.6(a). (SIGNATURE ON NEXT PAGE) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.