Citation Nr: 21008865 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-43 028 DATE: February 18, 2021 ORDER Eligibility for internment of the Veteran's remains in a Department of Veterans Affairs (VA) national cemetery is granted. FINDINGS OF FACT 1. The Veteran did not serve for twenty-four months of continuous active duty or for the full period for which he was called or ordered to active duty. 2. The Veteran was discharged from active duty for a disability which was incurred or aggravated in the line of duty in the active military, naval, or air service. CONCLUSION OF LAW The criteria for basic eligibility for internment in a VA national cemetery have been met. 38 U.S.C. §§ 101, 2402, 5303A; 38 C.F.R. §§ 3.1, 3.12a, 38.620. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1989 to February 1991. He died in October 2013. The appellant is his surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 decision of the National Cemetery Administration (NCA) in St. Louis, Missouri. In February 2021, the appellant testified at a video-conference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing will be associated with the claims file at a later date but is not necessary for a decision. Eligibility for internment in a VA national cemetery Governing law provides that any person classified as a “veteran” is eligible for burial in a national cemetery. 38 U.S.C. § 2402; 38 C.F.R. § 38.620. To be eligible as a “veteran,” the evidence must show that a member had active military, naval, or air service and was discharged from such service under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 38.620(a). Additionally, as is the case here, a person who originally entered active duty as an enlisted person after September 7, 1980 must meet the minimum active duty service requirement of twenty-four months of continuous active duty or the full period for which a person was called or ordered to active duty. 38 C.F.R. § 3.12a. The minimum period of active duty requirement does not apply (1) to a person who is discharged or released under 10 U.S.C. §§ 1171 or 1173 (early out or hardship discharge); (2) to a person discharged or released from active duty for a disability adjudged service connected without presumptive provisions of law, or who at the time of discharge had such a service-connected disability, shown by official service records, which in medical judgment would have justified a discharge for disability; (3) to a person with a compensable service-connected disability; (4) to the provision of a benefit for or in connection with a service-connected disability, condition, or death; and (5) to benefits under chapter 19 of title 38, United States Code. See 38 C.F.R. § 3.12a(d). The Veteran did not serve for twenty-four months of continuous active duty or for the full period for which he was called or ordered to active duty. His DD Form 214 shows that he served on active duty from September 5, 1989 to February 25, 1991, during which time he only had creditable service for one year, five months, and twenty-one days. Personnel records show that he had enlisted for a period of four years. As the Veteran did not have twenty-four months of continuous active duty service, the only remaining question is whether he meets one of the exceptions listed in 38 C.F.R. § 3.12a(d). The appellant asserts that the Veteran was discharged from his active duty service due to Raynaud’s phenomenon, which was incurred in or aggravated by his active duty service. See October 2014 VA Form 9. A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only conditions that are recorded in the examination reports are to be considered as noted. 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304. The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225 (1991). The term “noted” denotes only those conditions that are recorded in the examination reports and a history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of the conditions. 38 C.F.R. § 3.304(b); Crowe v. Brown, 7 Vet. App. 238, 245 (1994); Cotant v. Principi, 17 Vet. App. 116 (2003). When no preexisting condition is noted on entry into service, a veteran is presumed to have been found sound at entry. The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both preexisting entrance to service and not aggravated by service. If that burden is met, then the veteran is not entitled to service connection. However, if the Government does not rebut the presumption of soundness under 38 U.S.C. § 1111, the veteran’s claim is one for service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran’s August 1989 physical examination for service entrance shows no sign of a vascular or skin disability, to include Raynaud’s phenomenon. As Raynaud’s phenomenon was not identified in the August 1989 report of physical examination for service entrance, the presumption of soundness attaches. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. Personnel records reflect that the Veteran reported to Alaska in January 1990, where he first began to experience coldness in his hands which continued for up to forty-two hours after exposure. The Veteran reported experiencing reddish hands during previous winters, but symptoms had become much worse since his active service in Alaska. The Veteran underwent a medical board examination in January 1991. The medical board noted that the Veteran experienced cold hands, pale and waxy fingertips with bluish coloration when exposed to cold weather. The January 1991 medical evaluation board found that the Veteran’s Raynaud’s phenomenon existed prior to his service and was not permanently aggravated by service. As a result, the Veteran was discharged from active duty due to his Raynaud’s phenomenon. The record does not contain any indication of treatment for or diagnosis of Raynaud’s phenomenon prior to service. Although the Veteran stated he experienced reddish hands before his active duty service, there is no conclusive evidence that this was a manifestation of Raynaud’s phenomenon. Rather, the symptoms the Veteran experienced during service were markedly different than those prior to service. The Board finds that the record does not contain clear and unmistakable evidence showing that Raynaud’s phenomenon preexisted service entrance. The condition is shown to have first manifested during active service. While the medical board indicated that the condition preexisted service, the Board finds that this conclusion is not supported by the evidence of record. Therefore, the record does not contain clear and unmistakable evidence that Raynaud’s phenomenon existed prior to service as reasonable minds could differ in interpreting the evidence. Therefore, the presumption of soundness as to Raynaud’s phenomenon has not been rebutted by clear and unmistakable evidence. A service-connected disability means that such disability was incurred or aggravated in line of duty in the active military, naval, or air service. 38 C.F.R. § 3.1(k). The Board notes that the Veteran did not apply for, or subsequently receive, VA disability compensation for his in-service diagnosed Raynaud’s phenomenon prior to his death. However, the regulation only specifies that the disability must have been incurred or aggravated in service and does not require service connection during the Veteran’s lifetime. Cf. Hupp v. Nicholson, 21 Vet. App. 342, 352 (2007) (interpreting the term “service connected disability” in 38 C.F.R. § 3.312 to include disability incurred in service even though it was not service-connected during the Veteran’s lifetime). Therefore, the Board concludes that the Veteran’s Raynaud’s phenomenon is a service-connected disability for purposes of establishing eligibility for internment in a VA national cemetery. Although the Veteran did not have twenty-four continuous months of active duty service, the Board finds that he meets an exclusion requirement, as he was discharged from active duty for a “service connected” disability as that term is defined in the applicable regulation. Accordingly, he is classified as a “veteran” and is eligible for burial in a VA national cemetery. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. M. Stedman, 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.