Citation Nr: 21007703 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 13-28 297 DATE: February 10, 2021 ORDER Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for a heart disability, to include left ventricular hypertrophy, is denied. Entitlement to service connection for diabetes mellitus is denied. REMANDED Entitlement to an increased evaluation for bilateral hearing loss, rated as noncompensable prior to November 6, 2019, and 10 percent disabling thereafter is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that sleep apnea began during active service or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that a heart disability, to include left ventricular hypertrophy, began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that diabetes mellitus began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a heart disability, to include left ventricular hypertrophy, 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 diabetes mellitus 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 Veteran served on active duty from September 1983 to December 1983, and from August 17, 2001 to August 18, 2001, with additional service in the National Guard and the Army Reserves. These matters come before the Board of Veterans’ Appeals (Board) on appeal of rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded these matters in May 2015, November 2017, and May 2019 for verification of the Veteran’s periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). Specifically, the RO was instructed to contact the National Personnel Records Center (NPRC) and ascertain whether the Veteran was serving on ACDUTRA in 1999 or the early 2000s when he reported his sleep-related symptoms began, in October 2000 or March 2001 when left ventricular hypertrophy and repolarization abnormality was diagnosed by a private physician, or in March 2003 when diabetes was documented. The RO was also instructed to determine whether the Veteran’s National Guard service was “full-time duty” ordered under the provisions of 32 U.S.C. §§ 316, 502-505, or ordered by the President of the United States under 10 U.S.C. § 12401. The RO was instructed to contact the NPRC and the appropriate service departments and request that they identify, using all indicated search criteria, the exact dates for all periods of active duty, ADUTRA and INACDUTRA and forward any and all service department records associated with that duty that are not already incorporated in the record. The RO was also requested to verify whether the Veteran’s National Guard service was state-controlled or federal service. Thereafter, the RO was instructed to prepare formal finding of unavailability or partial unavailability delineating VA’s efforts to procure all missing service department records. The formal finding should explain, in detail, VA’s actions and procedures in attempting to obtain the Veteran’s missing personnel records to date. The Veteran and his attorney should be notified of any inability to locate military personnel records. See May 2019 Board decision. The RO has requested records from NPRC, the Records Management Center (RMC), the Army Records Processing Center, Defense Personnel Records Information Retrieval System (DPRIS), Personnel Information Exchange System (PIES), the Adjutant General of California, the Adjutant General of Ohio, the National Guard Bureau, and the National Archives and Records Administration. The RO made follow-up requests for service treatment records through NPRC with negative responses. The RO also searched Joint Legacy Viewer, a web-based Department of Defense/VA health record database and no additional service treatment records were identified. See September 2020 correspondence; September 2020 SSOC. The RO found that the Veteran’s records were unavailable and notified the Veteran in a September 2020 letter. The Board finds that the AOJ has now substantially complied with its remand directives. Regrettably, despite exhausting all reasonable efforts, the Veteran’s service treatment records and service personnel records are incomplete. Due to the incomplete service records, VA’s duty to explain its findings and conclusions is heightened. O’Hare v. Derwinski, 1 Vet. App. 365 (1991). VA not only has a heightened obligation to explain its findings and conclusions, but a heightened duty to consider the benefit-of-the-doubt rule. O’Hare, 1 Vet. App. at 367; Dixon v. Derwinski, 3 Vet. App. 261, 263-64 (1992). However, the case law does not lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Law and Analysis In this case, the Veteran served on ACDUTRA from September 1983 to December 1983, with subsequent service in the National Guard and the Reserves. He also had one day of ACDUTRA from August 17-18, 2001, during which he suffered a right knee injury. For VA compensation purposes, a veteran is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury (but not disease) incurred in or aggravated in the line of duty. 38 U.S.C. §§ 101(21), (24), 106; 38 C.F.R. § 3.6(a), (d). Other than the dates of active duty service listed above, September 1983 to December 1983 and August 17, 2001 to August 18, 2001, no other dates of service were identified as active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). There is also no evidence of any period of “full-time duty” service with the National Guard ordered under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505, or ordered by the President of the United States under 10 U.S.C. § 12401. See September 2020 SSOC. When a claim is based on a period of ACDUTRA, there must be evidence that the individual concerned became disabled during the period of ACDUTRA as a result of a disease or injury incurred or aggravated in the line of duty. In the absence of such evidence, the period of ACDUTRA does not qualify as “active military, naval, or air service” and the claimant does not achieve veteran status for purposes of that claim. See 38 U.S.C. § 101(2-24); Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). The advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant’s claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 1. Entitlement to service connection for sleep apnea The available service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of sleep apnea. In November 1995 and May 2001, he denied any history of frequent trouble sleeping. See November 1995, May 2001 reports of medical history. A July 2010 private treatment record indicates a diagnosis of severe obstructive sleep apnea. Having carefully reviewed the record, the Board concludes that service connection for sleep apnea is not warranted. There is current evidence of obstructive sleep apnea; however, the Board observes that there is no competent and credible evidence showing an indication that this disability is associated with the Veteran’s periods of ACDUTRA. A statement from the Veteran’s wife indicated symptoms from 1999 onward. See October 2014 lay statement from R.B. (initials used to protect privacy). Absent a showing of disease or injury during a period of ACDUTRA resulting in disability, there is no basis upon which to award service connection. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. 2. Entitlement to service connection for a heart disability, to include left ventricular hypertrophy Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of a heart disorder. Medical examinations in March 1991 and November 1995 found his heart to be normal. Documentation of left ventricular hypertrophy and a repolarization abnormality are documented in records of October 2000 and March 2001. Having carefully reviewed the record, the Board concludes that service connection for a heart disability is not warranted. There is current evidence of a heart disorder; however, the Board observes that there is no competent and credible evidence indicating that this disability is associated with any period of ACDUTRA. It does not appear that the Veteran had a cardiac arrest or cerebrovascular accident and there is no indication that his heart disorder arose from any injury. The July 2016 examiner explained that his left ventricular hypertrophy with associated repolarization is not an acute cardiac condition and is most likely related to non-service-connected hypertension which was first diagnosed in the early 2000s. See July 2016 VA examination report. Absent a showing of disease during a period of ACDUTRA resulting in disability, there is no basis upon which to award service connection. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. 3. Entitlement to service connection for diabetes mellitus Service treatment records are negative for any diagnosis, complaint, or abnormal finding suggestive of diabetes. He has reported symptoms of diabetes such as severe thirst, frequent urination and fatigue as early as 2003 when he was in the Reserves. He was diagnosed with diabetes mellitus in March 2003. Having carefully reviewed the record, the Board concludes that service connection for diabetes is not warranted. The Veteran has a current diagnosis of diabetes mellitus; however, the Board observes that there is no competent and credible evidence indicating that this disability is associated with any period of ACDUTRA. Absent a showing of disease during a period of ACDUTRA resulting in disability, there is no basis upon which to award service connection. The VA examiner explained that type 2 diabetes does not occur acutely and may take several years before symptoms manifest. The Veteran had risk factors for developing diabetes unrelated to military service including family history, age, and obesity. There is no evidence of any event during a period of ACDUTRA that would cause or aggravate diabetes beyond its natural progression. If anything, military service including physical training helped slow the progression of his diabetes and the Veteran admitted that he gained weight after retirement. See July 2016 VA examination report. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. REASONS FOR REMAND The Veteran submitted a December 2017 private audiological examination report. The evaluation was conducted by Dr. M.W. of the Advanced Audiology Institute in Las Vegas and indicated word recognition scores of 64 percent in the right ear and 68 percent in the left ear. However, the examination report does not show that the Maryland CNC test was used. Under 38 C.F.R. § 4.85(a), an examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a puretone audiometry test. Thus, the audiological evaluation is not adequate for rating purposes. See Savage v. Shinseki, 24 Vet. App. 259, 263-64 (2011). When a private examination report is unclear or not suitable for rating purposes and the information reasonably contained in the report otherwise cannot be obtained, VA has a duty to ask the private examiner to clarify the report, or the Board must explain why such clarification was not needed. Savage v. Shinseki, 24 Vet. App. 259 (2011). The matter is REMANDED for the following action: 1. Contact the Advanced Audiology Institute and ask them to determine if the Maryland CNC word list was used during audiological testing completed in December 2017. Document all efforts made. 2. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.