Citation Nr: 21024048 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-47 122 DATE: April 22, 2021 REMANDED Service connection for sleep apnea is remanded. Service connection for loss of left leg below the knee (previously claimed as a left ankle disability) is remanded. Service connection for an acquired psychiatric disability, to include depression, to include as secondary to the loss of left leg below the knee is remanded. REASONS FOR REMAND The Veteran served on active duty for training (ACDUTRA) in the United States Army Reserves from August 1990 to December 1990, and in the Oklahoma Air National Guard from January 1996 to June 1996. The Veteran had additional service in the U.S. Air Force Reserve and Oklahoma Army National Guard, some of which constituted inactive duty for training (INACDUTRA), between December 1990 and July 2001. The Veteran did not otherwise have active federal military service. This appeal is being treated expeditiously on the Board of Veterans’ Appeals’ (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from separate decisions of the Muskogee, Oklahoma, Regional Office (RO) of the United States Department of Veterans Affairs (VA): • A July 2013 decision that denied service connection for a left ankle disability; • A November 2015 decision that denied service connection for (i) loss of left leg below the knee and (ii) sleep apnea; and • A February 2016 decision that denied service connection for depression. As to the July 2013 decision denying service connection for a left ankle disability, the Board observes that the Veteran never filed a timely notice of disagreement, requested reconsideration, submitted a supplemental claim, or otherwise timely appealed that decision. In his September 2016, VA Form 9, Substantive Appeal to the Board, the Veteran listed the claim he was appealing from the July 21, 2016, statement of the case (SOC) as “L ankle.” The July 21, 2016, SOC, however, dealt with his claim for service connection of “loss of left leg below knee.” The RO never certified a claim for service connection of the Veteran’s left ankle disability to the Board. But when the Board issued its October 2019 decision, it specifically addressed the Veteran’s claim for service connection of his left ankle disability, which the parties subsequently addressed in the United States Court of Appeals for Veterans Claims (Court). Because the Board, the parties, and the Court have treated the Veteran’s claim for service connection of a left ankle disability as properly raised on appeal, in the interest of justice, the Board finds any jurisdictional issue associated with this claim is waived. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Therefore, the Board will continue to adjudicate the claim as if a proper notice of disagreement and substantive appeal had been filed. In addition, the Board finds that the Veteran’s claim for service connection for a left ankle disability it properly encompassed by his claim for service connection of loss of left leg below the knee. In May 2010, the Veteran underwent amputation of his left leg below the knee. Thus, when he filed his 2012 claim for service connection for a left ankle disability, it should have been considered a claim for service connection loss of left leg below the knee. Accordingly, the Board has recharacterized the claims on appeal for the purpose of clarity. The claim for service connection for loss of left leg below the knee now includes his claim for service connection for a left ankle disability because they are the same claim. This is to say, the Veteran’s claim for service connection for a left ankle disability remains pending, but it is encompassed by his claim for service connection for loss of left leg below the knee. Following a May 2019 Board hearing, the Board issued a decision in October 2019 denying all claims for service connection. The Veteran subsequently appealed the Board’s decision to Court. The parties submitted a Joint Motion to Remand (JMR) in which they stipulated to the following bases to vacate the Board’s decision: 1. In connection with his claim for service connection for sleep apnea, the Board did not comply with its duty to assist because it did not seek to obtain “records” associated with the Veteran’s service in the Oklahoma Air National Guard between January 1996 and June 1996. 2. In connection with his claim for service connection for a left ankle disability, the Board did not consider whether the Veteran’s May 1995 drill weekend (INACDUTRA) in the Oklahoma Air National Guard could be considered “active military, naval, or air service” under 38 U.S.C. § 101(24)(C) before denying his claim. 3. In connection with his claim for service connection for loss of left leg below the knee and for an acquired psychiatric disability, the parties stipulated the claims were inextricably intertwined with each other and the Veteran’s claim for service connection for a left ankle disability. Based on the JMR, the Court entered an order on October 5, 2020, vacating the Board’s decision in full and remanding the matter to the Board for readjudication. Classification of the Veteran’s Service The Board provides the following information for the benefit of the Veteran and the RO and to provide context to the Board’s remand. In order to be entitled to VA disability compensation, a person must be a “veteran.” Cropper v. Brown, 6 Vet. App. 450, 452 (1994). A “veteran” is defined as a person who: (1) served in the “active military, naval, or air service,” and (2) who was discharged or released therefrom under conditions other than dishonorable. See 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The phrase “active military, naval, or air service” under 38 U.S.C. § 101(24) and 38 C.F.R. § 3.6(a) includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) in which the individual concerned was disabled or died from an injury (but not a disease) incurred or aggravated in line of duty. “Active duty for training” means, among other things, “full-time duty in the Armed Forces performed by Reserves for training purposes.” 38 U.S.C. § 101(22)(A); 38 C.F.R. § 3.6(c). “Reserves” include members of a “Reserve component of one of the Armed Forces.” 38 U.S.C. § 101(26); 38 C.F.R. § 3.1(c). This refers to the two weeks of annual training which each Reservist must perform each year. It may also refer to the Reservist’s initial period of training. “Inactive duty for training” means, among other things, “duty (other than full-time duty) prescribed for Reserves . . . by the Secretary concerned under section 206 of title 37 or any other provision of law.” 38 U.S.C. § 101(23)(A); 38 C.F.R. § 3.6(d). This refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. National Guard duty is distinguishable from other Reserve service in a member of the National Guard holds a status as a member of the Federal military or the state militia, but never both at once. Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). A person serving in the National Guard can be a “veteran” in three ways. • First, when called into active duty service by the President of the United States. Id. (citing 38 U.S.C. § 101(29) and 10 U.S.C. § 10106). • Second, service in a state National Guard can qualify as ACDUTRA if it includes full-time duty under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or under the prior corresponding provisions of law. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(3). Basically, this refers to the two weeks of annual training National Guardsman must perform each year. It can also refer to initial period of training. • Third, service in a state National Guard can qualify as INACDUTRA if it includes duty (other than full-time duty) under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or under the prior corresponding provisions of law. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d)(4). This refers to the twelve four-hour weekend drills that National Guardsman must perform each year. These drills are deemed to be part-time training. 1. Service connection for sleep apnea is remanded. VA has a duty to assist claimants in the procurement of various records in developing their claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty includes obtaining relevant records in the custody of a Federal department or agency, such as military records, including service medical records. 38 C.F.R. § 3.159(c)(2). “Relevant records” are those records that relate to the injury or condition for which the veteran is seeking benefits and have a reasonable possibility of helping to substantiate the veteran’s claim. Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010). It is not clear to the Board what “other service records” the parties referred to within their JMR. The parties stated, Here, the record includes a DD Form 214 indicating that Appellant completed six months of training as part of the “AIR FORCE – ANGUS” from January 1996 to June 1996. However, the record does not contain other service records relating to the above-referenced six months of service. Appellant has provided lay statements and buddy statements that his snoring, fatigue during the day, and restless sleep was incurred during his service in the Oklahoma Air National Guard, [(citations omitted)]; the parties agree that remand of the claim of entitlement to service connection for sleep apnea is warranted for the Board to attempt to procure these records. (Emphasis added). In addition, the Board points out that, following development of any such records, it may be necessary to afford the Veteran a VA examination on this claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters v. Shinseki, 601 F.3d 1274, 1277 (Fed. Cir. 2010); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran’s VA medical records indicate he is being treated for sleep apnea. The Veteran has testified he experienced sleep issues, to include headaches and daily fatigue, during service. He has submitted statements from fellow service members who stated they observed the Veteran’s in-service snoring, restless sleep, and daytime fatigue. The information provided, however, does not indicate if his sleep apnea (a disease) occurred during a period of ACDUTRA, INACDUTRA, or otherwise; the timeframe is crucial. See 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). The RO will need to obtain clarification from the Veteran and/or his records to determine if a VA examination is warranted, as service connection for a disease may only be allowed if the disease was incurred or aggravated during a period of ACDUTRA in this case. 2. Service connection for loss of left leg below the knee (previously claimed as a left ankle disability) is remanded. The Veteran asserted that a left ankle injury occurred during service in the Oklahoma Air National Guard and has existed since that time and/or it is related to an in-service injury that he asserts occurred during a May 1995 drill weekend (ACDUTRA/INACDUTRA). The Board notes that the Veteran’s left leg was amputated below the knee in May 2010 due to persistent pain, which the Veteran attributed to his May 1995 injury. In its October 2019 decision, the Board denied the Veteran’s claim because the Veteran was never called into service by the President of the United States while serving in the Oklahoma National Guard. Thus, the Board concluded his May 1995 in-service event did not occur while he was a “veteran.” As cited above, being called into service by the President of the United States is only one way of obtaining “veteran” status. It is unclear from the Veteran’s military records associated with his claims file whether the May 1995 in-service event did, in fact, occur during ACDUTRA or INACDUTRA with Oklahoma National Guard. If it did, then this might constitute and “injury” making is subject to service connection. Therefore, additional development of the Veteran’s military personnel records is necessary. In addition, if the event did occur during a period of ACDUTRA or INACDUTRA, the Board finds a retrospective VA medical examination and opinion is necessary. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Waters, 601 F.3d at 1277; McLendon, 20 Vet. App. 79. Medical evidence establishes the Veteran was diagnosed with left osteochondral lesion of the talus for which he had surgery in 2003. He asserted the injury that led to his left ankle disability occurred in May 1995 during ACDUTRA/INACDUTRA—which has yet to be confirmed or denied. 3. Service connection for an acquired psychiatric disability, to include depression, to include as secondary to the loss of left leg below the knee, is remanded. The Veteran asserted that he developed depression due to his left leg amputation. As the outcome of the appeal for service connection for the Veteran’s loss of left leg below the knee will affect his claim for service connection for acquired psychiatric disability, the Board finds these issues to be inextricably intertwined. The claim must be remanded pending completion of development and adjudication of the claim for service connection for loss of left leg below the knee. Accordingly, the matters are REMANDED for the following actions: 1. Attempt to obtain and associate with the Veteran’s claims file any and all federal military personnel records associated with his active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with: (a.) U.S. Air Force Reserves; (b.) U.S. Army Reserves; (c.) Oklahoma Air National Guard; and (d.) Oklahoma Army National Guard To include, but not limited to: (a.) Records associated with his service in the Oklahoma Air National Guard between January 1996 and June 1996. (b.) Records associated with his service in the Oklahoma Air National Guard in and around April/May/June/July 1995. (c.) Records documenting his total ACDUTRA and INACDUTRA time with corresponding dates, if available. With particular attention paid to the time period around May 1995. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received from each source should be associated with the claims file. If the requested information is unavailable, a formal finding of unavailability should be prepared and associated with the claims file. 2. Attempt to obtain and associate with the Veteran’s claims file any and all federal military service treatment records associated with his service in the Oklahoma Air National Guard between January 1996 and June 1996. If multiple requests are required to obtain all the information sought, they should be made. All requests and responses received from each source should be associated with the claims file. If the requested information is unavailable, a formal finding of unavailability should be prepared and associated with the claims file. 3. Attempt to obtain and associate with the Veteran’s claims file any outstanding VA medical records. 4. Send the Veteran proper correspondence inviting him to provide further information about when he experienced sleeping issues that he believes are associated with his sleep apnea, to include requesting information as to dates, locations, duration of sleep issues, and other relevant information he believes is necessary to adjudicate his claim. 5. Only if, after all foregoing development is completed, the RO determines there is sufficient evidence to reasonably believe the Veteran’s sleep apnea, or associated symptoms, possibly began during a period of ACDUTRA, then the Veteran should be afforded a proper VA examination addressing the etiology of his sleep apnea. 6. Only if, after all foregoing development is completed, the RO determines there is sufficient evidence to reasonably find that the Veteran incurred a left ankle disability due to an in-service injury that occurred during a period of ACDUTRA or INACDUTRA, or a left ankle disease that occurred during a period of ACDUTRA, the RO should obtain a proper retrospective opinion addressing whether a left ankle injury is at least as likely as not (50 percent probability or more) related to the Veteran’s loss of leg below the left knee. 7. The RO should pursue development of all information to its logical conclusion. 8. Following the completion of the foregoing directives, the RO should readjudicate all of the Veteran’s claims. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. F. Sawka, 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.