Citation Nr: 21005741 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-29 204 DATE: February 2, 2021 ORDER Entitlement to service connection for a low back disorder (claimed as neuropathy in lower back) is denied. Entitlement to service connection for a heart disorder (claimed as stent in heart), to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents, is denied. Entitlement to service connection for fragment wound, left arm, is denied. Entitlement to service connection for fragment wound, right arm, is denied. Entitlement to service connection for fragment wound, head, is denied. Entitlement to service connection for an acquired psychiatric disorder (claimed as anxiety) is denied. Entitlement to service connection for a lung condition is denied. FINDINGS OF FACT 1. The appellant’s period of active military service from March 1968 to May 1974 is characterized as dishonorable, which is a bar to VA benefits for any disability related to that period of service. 2. The preponderance of the evidence is against finding that the appellant has a chronic low back disorder that began during his National Guard service or is otherwise related to an injury or disease incurred during such service. 3. The preponderance of the evidence is against finding that the appellant has a heart disorder that began during his National Guard service or is otherwise related to an or disease during such service. 4. The preponderance of the evidence is against finding that the appellant’s hypertension began during his National Guard service or is otherwise related to an injury or disease incurred during such service. 5. The preponderance of the evidence is against finding that the appellant incurred fragment wounds to the left arm during his National Guard service or has a left arm disability otherwise related to an injury or disease incurred during such service. 6. The preponderance of the evidence is against finding that the appellant incurred fragment wounds to the right arm during his National Guard service or has a right arm disability otherwise related to an injury or disease incurred during such service. 7. The preponderance of the evidence is against finding that the appellant incurred fragment wounds to the head during his National Guard service or has any head disability otherwise related to an injury or disease incurred during such service. 8. The preponderance of the evidence is against finding that the appellant has an acquired psychiatric disorder that began during his National Guard service or is otherwise related to an injury or disease incurred during such service. 9. The preponderance of the evidence is against finding that appellant has a lung condition that began during his National Guard service or is otherwise related to an injury or disease incurred during such service. CONCLUSIONS OF LAW 1. The criteria for entitlement to VA benefits based on the appellant’s period of active military service from March 1968 to May 1974 have not been met. 38 U.S.C. § 101; 38 C.F.R. § 3.1, 3.12. 2. The criteria for service connection for a low back disorder, to include “neuropathy of the back,” are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a heart disorder, to include “stent in heart,” are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for service connection for a fragment wound, left arm, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for a fragment wound, right arm, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for service connection for a fragment wound, head, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for service connection for an acquired psychiatric disorder, to include anxiety, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 9. The criteria for service connection for a lung condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served in the U.S. Army from March 1968 to May 1974; however, he only served 1 year, 3 months and 27 days of creditable active military service. Prior to March 1968, the Veteran served with the Army National Guard of Alabama from October 1965 to March 1968 and served an initial period of active duty for training (ACDUTRA) from March 1967 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a Department of Veterans Affairs (VA) Regional Office (RO)’s November 2017 rating decision. The appellant testified at a Board virtual hearing held before the undersigned Veterans Law Judge in December 2020. A transcript of this hearing is associated with the claims file. The Board notes that the appellant had previously filed various claims for service connection for some of the conditions currently on appeal, but his claims were denied based on his character of discharge being a bar to VA benefits. See September 2008 and June 2010 notification letters. The appellant did not appeal those decisions and they became final. However, following the last final decision, additional official service department records were associated with the record. As these records are relevant to the appellant’s claims and existed but had not been associated with the claims file at the time of the prior final decisions, reconsideration of the appellant’s claims on the merits without the need for submission of new and material evidence is warranted. 38 C.F.R. § 3.156 (c). 1. Whether the character of the appellant’s discharge from active military service for the period of March 1968 to May 1974 is a bar to VA benefits Initially, as the characterization of the period of active military service from March 1968 to May 1974 relates to all of the appellant’s claims for service connection, the Board will address that issue separately before discussing the individual claims for service connection. In multiple administrative decisions in the claims file, the RO has determined that the appellant’s undesirable discharge from active military service (specifically the period of March 1968 to May 1974) is dishonorable for VA purposes and a bar to VA benefits. See Administrative Decisions dated in January 1988, October 2019 and May 2020. The appellant essentially contends he was not AWOL because he was at Fort McClellan and, therefore, the Army knew where he was. He has submitted testimony to the effect that he was sent back to the United States from Vietnam on leave (at hearing, reported it was mandatory convalescence leave after he as wounded), that he became sick during his leave and when to Fort McClellan, Alabama, numerous times for medical treatment and then to resolve a pay issue. He further stated that there was some type of mix up with his orders to return to his unit from leave and he was at Fort McClellan multiple times pending resolution of this issue. See November 2015 VA Form 21-4138 and December 2020 Board hearing testimony. The appellant has also stated that, while on leave, he was called back to his unit by his commander when his replacement was killed in action in June 1969 but he was not able to obtain orders to return to Vietnam or any other station and was kept at Fort McClellan until all the events that have been reported occurred. See March 2016 VA Form 21-4138. A claimant seeking VA benefits must first establish that they have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). Under VA laws and regulations, and for benefits purposes, a veteran is a person discharged or released from active service under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.12. A discharge or release from active service under conditions other than dishonorable is a prerequisite to entitlement to VA pension or compensation benefits. 38 U.S.C. § 101(18); 38 C.F.R. § 3.12(a). A discharge under honorable conditions is binding on the VA as to the character of discharge. 38 C.F.R. § 3.12(a). There are two types of character of discharge bars to establishing entitlement for VA benefits: (1) statutory bars found at 38 U.S.C. § 5303(a) and 38 C.F.R. § 3.12(c); and (2) regulatory bars listed in 38 C.F.R. § 3.12(d). The RO has characterized the appellant’s active military service from March 1968 to May 1974 as dishonorable for purposes of VA benefits under both subsections (c)(6) and (d)(4) of 38 C.F.R. § 3.12. Subsection (c)(6) of 38 C.F.R. § 3.12 applies where a former service member was separated from service by reason of a discharge under other than honorable conditions issued as a result of an AWOL for a continuous period of at least 180 days. This bar to benefits entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence. Factors to be considered in determining whether there were compelling circumstances include: (1) the length and character of service exclusive of the period of prolonged AWOL (whether it was characterized as honest, faithful and meritorious, and of benefit to the Nation); (2) the reasons for going AWOL (reasons to be given consideration as compelling include family emergencies or obligations or similar types of obligations or duties owed to third parties) with consideration of the person’s age, cultural background, educational level, and judgmental maturity and how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted, and finally, hardship or suffering incurred during overseas or as a result of combat wounds of other service-incurred or aggravated disability should be carefully and sympathetically considered in evaluating the person’s state of mind at the time the prolonged AWOL began; and (3) whether a valid legal defense exists for the absence that would have prevented a conviction of AWOL. Furthermore, 38 C.F.R. § 3.12(d) provides, in pertinent part, that a discharge or release may be considered dishonorable because of either acceptance of an undesirable discharge to escape trial by general court-martial or willful and persistent misconduct, which includes a discharge under other than honorable conditions if it is determined that it was issued because of willful and persistent misconduct, but does not include discharge because of a minor offense if service was otherwise honest, faithful and meritorious. 38 C.F.R. § 3.12(d)(1) and (4). An act is willful misconduct where it involves deliberate or intentional wrongdoing with knowledge of, or wanton and reckless disregard of, its probable consequences. Mere technical violations of police regulations or ordinances will not per se constitute willful misconduct. 38 C.F.R. § 3.1(n). A discharge because of one of the above-identified offenses will not be a bar if it is found that the person was insane at the time of committing the offense causing the discharge. 38 C.F.R. § 3.12(b). VA regulations provide that an insane person is one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides. 38 C.F.R. § 3.354. In the present case, the appellant’s official military records show the following occurred. He enlisted as a member of the Army National Guard of Alabama in October 1965. He ceased to serve satisfactorily subsequent to September 1967 and, therefore, he was certified for active duty under Public Law 89-687. See November 1967 DD Form 44. Thereafter, he was ordered to ACDUTRA, which he entered on February 5, 1968, and was sent to Germany. See DA Forms 20 and 220. While there, the appellant enlisted in the regular Army and entered into active duty on March 5, 1968. Ten days later he was sent to the Republic of Vietnam. Service treatment records indicate the appellant was injured in November 1968 and treated for fragment wounds to the back and head and returned to duty. In February 1969, the appellant requested a six-month extension of his foreign tour in return for 30 days special leave, which was granted. He left his unit to return to the United States on March 7, 1969 but failed to return to his unit in Vietnam at the prescribed time. He was officially declared AWOL in May 1969 and dropped from the rolls as a deserter in June 1969. The record shows that multiple letters were sent by his commander to the appellant and his parents regarding his absence without any response. The service records further show that the appellant surrendered to military authorities and was returned to military control in August 1973 at Fort McClellan, Alabama. He was sent to the Personnel Confinement Facility (PCF) at Fort Campbell, Kentucky. At the beginning of September 1973, he departed AWOL from the Fort Campbell PCF and was again dropped from the rolls as a deserter. In March 1974, the appellant was apprehended by special agents of the Federal Bureau of Investigation (FBI) and returned to military control at Fort Campbell. In April 1974, the appellant was charged with two violations of Article 86 the Uniform Code of Military Justice (UCMJ) for the two periods that he was AWOL. The appellant responded by requesting a discharge for the good of the service under the provisions of Chapter 10 of the Army Regulation 635-200 because charges had been preferred against him under the UCMJ that authorize the imposition of a bad conduct or dishonorable discharge. He acknowledged in his request that, by submitting this request for discharge, he was guilty of the charges against him or of a lesser included offense. He further stated that he desired no further rehabilitation for he had no desire to perform further military service. Furthermore, in a handwritten statement, the appellant stated that he was requesting discharge because he had been out for too long to adjust to being in service. The appellant’s request for discharge was approved and it was directed that he be issued an undesirable discharge. He was issued a DD Form 214 characterizing his service as “Under Conditions Other Than Honorable.” The appellant applied multiple times to the Army Board of Correction of Military Records (ABCMR) to have his character of discharge upgraded. His initial application was denied in April 1993, after consideration of the facts of his case, because the application for correction was not timely filed (within three years after he should have discovered the alleged error, i.e., May 7, 1974) and the appellant had not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted. In March 2002, the appellant requested reconsideration of the April 1993 decision, but such request was denied because he did not file a timely request (within one year) after the original consideration and the application did not contain evidence of fraud, mistake in law, mathematical miscalculation, manifest error or that there existed substantial relevant new evidence discovered contemporaneously with or within a short time of the prior decision. He filed his last application in February 2017. After reopening the appellant’s previously denied application, his request was denied on the merits finding that the evidence presented did not demonstrate the existence of a probable error or injustice and, therefore, the overall merits of the case were insufficient as a basis to amend the previous April 1993 decision. However, an administrative error was found in that the appellant was awarded a Purple Heart but did not receive such award and it was not noted in his records. Thus, it was ordered that this administrative error be corrected. The Board finds that the appellant’s character of service for the period of active military service from March 1968 to May 1974 is considered dishonorable for VA benefit purposes under 38 C.F.R. § 3.12(c)(6), (d)(1) or (d)(4). The appellant had two periods of AWOL in excess of 180 days during his period of active military service from March 1968 to May 1974 resulting in him having 1,764 days of time lost. Furthermore, the Board does not find that the appellant has submitted evidence of compelling circumstances for his first period of AWOL. The Board acknowledges that the appellant’s service records indicate that he had good marks prior to his special leave being approved in March 1969 and he had not received any punishments prior to his going AWOL in May 1969. However, the fact his service prior to going AWOL in May 1969 may have been meritorious, honest and beneficial to the nation does not end the inquiry. There must also be compelling reasons why he went AWOL. Unfortunately, the appellant has not really given a compelling reason for going AWOL such as he had a family emergency or obligation that kept him from returning to his unit. Rather, he has provided only vague and inconsistent statements regarding some type of mix up with his return orders without providing any supporting evidence. However, in requesting discharge for the good of the service, the appellant admitted his guilt. There is no indication that he raised any such argument as a defense against the charges brought against him despite having the benefit of counsel to advise him. Moreover, the appellant did not raise this specific contention to the ABCMR when trying to have his discharge upgraded. Rather, he merely contended he was a good soldier and did what he was told (April 1993 contention) and that he was never AWOL and was on base for four months without pay (February 2017 contention). Finally, at the December 2020 Board hearing, the appellant admitted that he went AWOL and did not return to Vietnam because he did not want to go. He then went on to testify about the being at Fort McClellan due to the issues with his pay and return order, which he apparently believes should somehow mitigate his failure to return to his unit in Vietnam as required. Unfortunately, the Board does not find such reasons compelling even when considering the appellant’s age, background, education level and judgmental maturity. The Board acknowledges that the record indicates the appellant grew up in a small town and had only a seventh-grade education. However, he has not argued that he was unable to understand the situation or the consequences of not returning to his unit due to his age, cultural background, educational level, or judgmental maturity. Rather, he has admitted he did not return to his unit in Vietnam because he did not want to go back. Finally, although the appellant may have set forth a possibly valid legal defense for him failing to return on time to his unit in Vietnam, it does not excuse his entire four-year absence. Once he decided to quit trying to correct the alleged mistake in his orders, he purposely chose not to return to his unit and a defense that he was prevented by circumstances beyond his control from returning timely to his unit (i.e., that he could not timely return because of a mix up in his orders) was no longer available to him. Clearly, no such defense was raised at the time of his discharge despite being advised by counsel, indicating that even if he raised this issue at the time of his discharge, it was not considered a viable defense. Moreover, even if the Board could find compelling circumstances to excuse the appellant’s first period of AWOL from May 1969 to August 1973, there is no such evidence nor argument raised regarding his second period of AWOL from September 1973 to March 1974. The appellant has not submitted any rationale for why he went AWOL from the PCF at Fort Campbell in September 1973 and remained AWOL for 182 days. Moreover, unlike with his first period of AWOL, the records show that he did not voluntarily give himself up but was apprehended by the FBI and returned to military custody. There is nothing in the contemporaneous records as to the circumstances surrounding this period of AWOL, except that the appellant left the PCF in Fort Campbell and was returned by the FBI. Therefore, the finding of a dishonorable discharge under 38 C.F.R. § 3.12(c)(6) could be based solely on this second period of AWOL. The Board further finds that the appellant’s service could also be characterized as dishonorable pursuant to either subsection (d)(1) or (d)(4) of 38 C.F.R. § 3.12. The offense of AWOL is not a minor infraction but is punishable by a bad conduct or dishonorable discharge when severe enough, such as in this case. Moreover, not only was the appellant absent from service for over four years knowing that he was AWOL, he went AWOL again just weeks later from his pre-trial confinement at the PCF at Fort Campbell and remained absent for another 182 days until he was apprehended by the FBI and returned to military custody. Such behavior clearly demonstrates willfulness because the appellant knew or should have known the consequences of his actions and, yet, he continued to take action that violated the UCMJ. Moreover, the fact he stayed AWOL for such extended periods of time when he knew or should have known that he was AWOL and was obligated to return to service, as well as his going AWOL again after only weeks of being back in military custody, demonstrates persistent misconduct. The appellant could have turned himself in at any point but instead chose to continue violating the UCMJ provisions on unauthorized absences. As such, the appellant’s actions can clearly be characterized as willful and persistent misconduct. In addition, the appellant clearly accepted a discharge so that he would not be subject to a general court-martial and potentially receiving a bad conduct or dishonorable discharge. His signed statements requesting discharge make it clear that he was asking to be discharged so that he could avoid being court-martialed. Hence, the Board finds the evidence clearly demonstrates the appellant’s discharge can be characterized as dishonorable under 38 C.F.R. § 3.12(d)(1) and (d)(4). In making this decision, the Board has considered the appellant’s statements and testimony but does not find them to be credible as to the events surrounding his active military service and his multiple periods of AWOL during such service given their inconsistencies with the contemporaneous service records. Rather the Board finds the appellant’s official military records to be more credible, probative and persuasive as to the circumstances surrounding his service. The appellant’s official military records are highly probative as they were created contemporaneous with his service and the events occurring at that time, while the appellant’s statements were made decades later in conjunction with seeking VA monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than a contrary history as recounted by a Veteran many years later, long after the fact). Moreover, there are significant inconsistencies in the appellant’s reports of the events that occurred, especially when compared to what his official military records show. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and consistency with other evidence), aff’d, 78 F.3d 604 (Fed. Cir. 1996), superseded in irrelevant part by statute, VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). This would include weighing the contemporary medical evidence against lay statements. For example, the appellant reported in one statement that he was called back early from his leave due to his replacement being killed in action. However, he reported that this person was killed in June 1969, which was after the appellant failed to return to his unit and had already been reported as being AWOL and removed from the rolls as a deserter. Moreover, the appellant testified that he was sent on mandatory convalescent leave after receiving fragment wounds in November 1968. However, his service records show he was treated for his injuries and returned to full duty without any convalescence leave given. Furthermore, his leave did not occur until March 1969, five months after his injuries. According to his service records, he was granted 30 days of special leave in February 1969 in exchange for agreeing to extend his tour in Vietnam by six months. Finally, the appellant has not provided any evidence to support his contentions regarding a pay issue or a mix up with his orders and his service records do not support his contentions. It is unclear what pay issue the appellant had. His medical records show he has reported that he was on duty without pay for four weeks, but it is unclear when this happened given that he was on leave at the time he went AWOL. Rather, he actually may have been paid for four weeks that he should not have been because he was absent for 30 days before he was officially declared AWOL. He was supposed to have returned to his unit in April 1969, but he was not officially declared AWOL until 30 days later in May 1969. Also, the appellant’s pay was suspended upon being declared AWOL in May 1969. Moreover, even if someone at Fort McClellan knew where he was, that does not mean that his commanding officer knew. In fact, the records reflect that his commanding officer did not know his whereabouts or the reason he had not returned from his 30-day leave as evidenced by letters the commander sent to the appellant and his family seeking information about his status. Moreover, simply because he was at Fort McClellan did not excuse him from reporting to his unit commander his whereabouts and the issues he was allegedly having in return to his unit. These are just a few of the more compelling discrepancies between the appellant’s statements made to VA in support of his claim and the contemporaneous service records in his claims file. The Board further acknowledges that it is possible the appellant’s recollections may simply be mistaken due to the fallibility of human memory for events that occurred decades ago. Even so, such does not render his statements credible. This is consistent with the law’s view of memory in general. See generally, Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant’s intent to speak the truth, statement may lack credibility because of faulty memory). Based on these inconsistencies, the Board finds the more credible and probative evidence as to what happened during the appellant’s active military service to be his official military records and, therefore, relies upon that evidence to determine the circumstances surrounding the appellant’s periods of AWOL. For the foregoing reasons, the Board finds that the appellant’s active military service from March 1968 to May 1974 is characterized as dishonorable for VA purposes. As such, the appellant is barred from receiving any VA benefits that arise from this period of service. However, as the appellant had honorable service with the Army National Guard of Alabama from October 1965 to March 1968, this finding does not end the Board’s inquiry as it must consider whether service connection is warranted based on the appellant’s honorable National Guard service. Service Connection 2. Entitlement to service connection for a low back disorder (claimed as neuropathy of back) The appellant is seeking service connection for a low back disorder although the exact nature of the claimed condition is not clear. In April 2010, the appellant claimed he had back strain, but his current claim filed in September 2017 is for “neuropathy in lower back.” The appellant’s VA treatment records do not show a diagnosis of any specific low back disorder, although they do show his complaints of pain in his back and left shoulder with X-rays showing retained fragments that he has related to fragment wounds he received in Vietnam during his active military service. See e.g., January 26, 2018 Primary Care note. The appellant’s service treatment records show he was treated for fragment wounds to his back and head in November 1968. However, they also show he reported a history of recurrent back pain on service examinations in March and July of 1967 related to his initial period of ACDUTRA with reports that he injured his back in 1964 while working as a stone mason and from falling off a truck during summer camp at Shelby, Mississippi. However, physical examination did not demonstrate any objective evidence of a lumbar spine abnormality. See March 30, 1967 Orthopedic consultation note and Reports of Medical Examination. In addition, he reported on a February 1968 Report of Medical History having had treatment for back pain in 1965 at Camp Shelby, Mississippi but the examiner stated there was no clinical significance in any of the appellant’s reported conditions and no defect or diagnosis was noted on examination. As previously discussed, the appellant’s service from March 1968 to May 1974 is considered dishonorable and a bar to VA benefits. Consequently, the Board cannot consider that period of service and any injuries incurred therein in determining whether service connection is warranted for any current low back disorder the appellant may have. However, as there is evidence of a possible low back disorder present prior to the appellant’s entering into active duty in March 1968, the Board must consider whether there is a current low back disorder related to the appellant’s National Guard service from October 1965 to March 1968. In this case, there is a question as to whether the appellant has a low back disorder that preexisted his military service from October 1965 to March 1968 based on the reports in the service treatment records of an injury in 1964. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). The appellant served with the National Guard and his service personnel records reflect that he did not have any active duty during this service from October 1965 to March 1968. Additionally, the appellant has not previously established service connection for any period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). As the appellant has not previously established “veteran” status for any period of duty during his National Guard service, no presumptions, including the presumptions of soundness and aggravation, are applicable. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010). Nevertheless, the Board finds that the appellant was actually sound as to his low back upon his entry into service with the National Guard in October 1965 and upon his entry into ACDUTRA in March 1967 because he was examined upon entry and, despite any report of previous back injuries, no defects or diagnoses involving the spine or back were noted on clinical evaluation. Moreover, the appellant was evaluated in the Orthopedic Clinic in March 1967 and again, despite his report of prior injuries to his low back, there were no objective findings (including on X-rays) of spasms or back disease. Consequently, the evidence does not demonstrate that he had a chronic low back disorder at the time of his entry into National Guard service in October 1965 or his period of ACDUTRA in March 1967. Furthermore, the service treatment records are silent for any injury or disease of the low back during the period of ACDUTRA from March to July of 1967. On his July 1967 separation examination, although reporting he had occasional recurring back pain, the clinical evaluation was again negative for any abnormal findings of the spine or any other area involving the back. Moreover, the appellant entered into another period of ACDUTRA in February 1968 was examined that month for enlistment into active duty. The clinical evaluation was again negative for any spine or back abnormalities despite his report of having treatment for back pain in 1965. Finally, despite what appears to be the appellant’s report that he was treated for a back injury during a period of annual training (i.e., summer camp at Shelby, Mississippi), there is no evidence to show treatment for such injury or that such an injury resulted in a later treatment given the lack of objective findings in the subsequent service records. Based on the lack of evidence of a chronic low back disorder in these records and the current treatment records indicating the appellant has back/left shoulder pain related to fragment wounds he sustained in Vietnam during his period of active duty from March 1968 to May 1974 (which injury cannot be considered), the Board finds that the preponderance of the evidence is against concluding the appellant has a current low back disorder related to any injury or disease incurred during his National Guard service from October 1965 to March 1968. Again, the Board acknowledges that the evidence shows the appellant received fragment wounds to the back in November 1968 during his period of active duty and that the current treatment records indicate he has retained fragments from those wounds that causes pain in his back/left shoulder. However, unfortunately, service connection cannot be established based on these injuries because his active duty has been characterized as dishonorable. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against finding that service connection for a low back disorder, claimed as neuropathy to the low back, is warranted. The Board has considered the doctrine of reasonable doubt but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The evidence does not establish the existence of a current right knee disability. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for a heart disorder (claimed as stent in heart), hypertension, fragment wounds to the bilateral arms and head, an acquired psychiatric disorder (claimed as anxiety) and a lung condition The appellant is seeking service connection for a heart disorder (claimed as stent in heart), hypertension, fragment wounds to the bilateral arms and head, an acquired psychiatric disorder (claimed as anxiety) and a lung condition, which conditions he contends are related to his service in the Republic of Vietnam, to include contending that his heart disorder and hypertension are related to exposure to herbicide agents. Service connection may be granted to a veteran for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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). Service connection may also be established for a current disability on the basis of a presumption under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1133 and 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a). The medical records indicate the appellant is diagnosed to have coronary artery disease and hypertension, which are diseases enumerated in 38 C.F.R. § 3.309(a). Furthermore, in some circumstances, a disease associated with exposure to certain herbicide agents will be presumed to have been incurred in service even though there is no evidence of that disease during the period of service at issue, unless there is affirmative evidence to establish that the disease is due to an intercurrent injury or disease. 38 U.S.C. § 1116(a); 38 C.F.R. §§ 3.307(a)(6), 3.307(d)(1), 3.309(e). A veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1116(f). The question for the Board is whether the appellant has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The medical evidence indicates that the appellant received fragment wounds to the back and head in November 1968 while serving on active duty in Vietnam. However, there is no record of any injuries to his bilateral arms or that he has any current residual disorder relating to his fragment wounds. His current VA treatment records show he has retained fragments in his back/left shoulder that cause pain in that area with difficulty breathing. In addition, a July 2018 VA examination shows the appellant is diagnosed to have coronary artery disease, status post stent placement in 1992. His VA treatment records also show he has a diagnosis of hypertension and an acquired psychiatric disorder (diagnosed as posttraumatic stress disorder (PTSD) and anxiety disorder). As for the claimed lung condition, the appellant has not specified what he means by this but his VA treatment records show he has complained that pain in his back and left shoulder from the in-service fragment wounds cause difficulty breathing, which has been characterized as pleuritic pain or pleurisy. The Board cannot award service connection for any current disability as a result of any injury, disease or event incurred during the appellant’s period of active military service from March 1968 to May 1974 as this service is deemed dishonorable for VA benefit purposes. This includes the appellant’s service in the Republic of Vietnam from March 1968 to March 1969. Therefore, service connection on either a direct or presumptive basis for any of the appellant’s claimed conditions that were incurred in or related to his service in Vietnam cannot be awarded even if there is evidence of a relationship between the current disability and this period of active duty service. Furthermore, the Board finds that service connection is not warranted based on the appellant’s period of National Guard service from October 1965 to March 1968. The term “veteran” is defined as “a person who served in the active military, naval, or air service.” 38 U.S.C. § 101(2); see 38 C.F.R. § 3.1(d) (2009). “Active duty” generally means “full-time duty in the Armed Forces, other than active duty for training.” 38 U.S.C. § 101(21)(A). When a claim for service connection is based on a period of active duty for training (ACDUTRA), 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 the period of ACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24), 1110; Acciola v. Peake, 22 Vet. App. 320, 324 (2008). In the absence of such evidence, the period of ACDUTRA would not qualify as “active military, naval, or air service,” and the appellant would not qualify as a “veteran.” 38 U.S.C. § 101(2), (24); see Acciola, supra. The service treatment records from the period of the appellant’s National Guard service are silent for any findings or treatment related to coronary artery disease, hypertension, fragment wounds to the bilateral arms and head, an acquired psychiatric disorder and a lung disorder. Rather, the evidence shows that the appellant’s claimed conditions had their onset after his National Guard service. Moreover, there no evidence of record demonstrating that any current disability is related to any injury, disease or event incurred during his National Guard service, and the appellant has not contended that any of his claimed conditions are related to such service. Hence, the Board concludes that the preponderance of the evidence is against finding that service connection for the appellant’s heart disorder, hypertension, fragment wounds, psychiatric disorder and lung condition is warranted. The Board has considered the doctrine of reasonable doubt but finds that the record does not provide an approximate balance of negative and positive evidence on the   merits. The evidence does not establish the existence of a current right knee disability. Service connection is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 57-58; 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.M. Kreitlow 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.