Citation Nr: 21027811 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-42 004 DATE: May 6, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a total hip replacement, to include as secondary to a lumbar spine disability, is denied. Entitlement to service connection for left thigh pain, to include as secondary to a lumbar spine disability, is denied. Entitlement to service connection for left leg weakness, to include as secondary to a lumbar spine disability, is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran's lumbar spine disability was not manifest during a qualifying period of active service or active duty for training, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. The preponderance of the evidence shows that the Veteran's total hip replacement disability was not manifest during a qualifying period of active service or active duty for training, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 3. The preponderance of the evidence shows that the Veteran's left thigh pain disability was not manifest during a qualifying period of active service or active duty for training, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 4. The preponderance of the evidence shows that the Veteran's left leg weakness disability was not manifest during a qualifying period of active service or active duty for training, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 5. The preponderance of the evidence shows that the Veteran's hypertension disability was not manifest during a qualifying period of active service or active duty for training, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). 2. The criteria for entitlement to service connection for a total hip replacement disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 3. The criteria for entitlement to service connection for a left thigh pain disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 4. The criteria for entitlement to service connection for a left leg weakness disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2020). 5. The criteria for entitlement to service connection for a hypertension disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran enlisted in the Army National Guard in October 1977, serving until his retirement in November 1999. He served on active duty from January 1978 to April 1978 for his basic training. During the remainder of his National Guard service, the Veteran served as a full-time dual-status technician, and also had Guard service with periods of active duty for training (ACDUTRA/ADT) and inactive duty training (INACDUTRA/IADT). The exact nature of the National Guard service is essential to this appeal and will be discussed further below. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2020 in a Board videoconference hearing. A transcript of the hearing is of record. The Board most recently remanded the issues on appeal for additional development in October 2020. The requested development having been provided, the directives have been substantially complied with as to the matters decided herein. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). The Law of "Veteran Status" The term "Veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). A person seeking VA benefits must first establish that he or she has attained the status of Veteran. Holmes v. Brown, 10 Vet. App. 38, 40 (1997). For the purpose of establishing entitlement to pension, compensation, dependency and indemnity compensation (DIC), or burial benefits, Veteran status usually is shown through submission of a DD Form 214, Certificate of Release or Discharge from Active Duty, or original Certificate of Discharge. Service department findings are binding on VA for purposes of establishing service in the United States Armed Forces. Spencer v. West, 13 Vet. App. 376, 380 (2000). "Active military, naval, and air service" includes active duty, any period of active duty for training during which the Veteran was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the Veteran was disabled or died from an injury incurred or aggravated in the line of duty. 38 C.F.R. § 3.6(a) (emphasis added). Pursuant to 38 C.F.R. § 3.6, "active duty" is defined as: (1) full-time duty in the Armed Forces, other than active duty for training; (2) active duty for training (ACDUTRA) (e.g., the approximately two weeks per year of training conducted by Reservists and National Guard members); (3) full-time duty performed by Reservists for training purposes (e.g., when some Reservists sign on for extended periods of service); (4) full-time duty performed by National Guard members of any state; and (5) inactive duty training (INACDUTRA) (e.g., the regular monthly weekend drills conducted by Reservists and National Guard members). Generally, in order to qualify for VA benefits, a claimant must be a Veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "Veteran" is one of the five elements of a claim for service-connection benefits). Here, VA determined that because the Veteran served a period of active duty at the beginning of his overall service, primarily for his basic and follow-on training after initial enlistment, VA found the Veteran has achieved status as such. Id. As noted above, that period of active duty occurred from January 2, 1978 to April 28, 1978. The Veteran's claims file contains a DD214 noting that active duty service and the designation of that service as "honorable." Following that active duty period of service for his basic training, the Veteran then returned to his Army National Guard unit. The National Guard is a state force that can come under federal control. Unless specifically involving a period of "active duty" as noted on a DD 214, service in these components is generally "ACDUTRA" (also abbreviated as ADT) or "INACDUTRA (also abbreviated as IADT)." After initial basic training, a National Guard member will typically perform IADT periods, traditionally occurring one weekend monthly, as well as 15 days of ADT annually. To have basic eligibility for veterans benefits based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed "full-time duty" under the provisions of 32 U.S.C. §§ [315], 502, 503, 504, or 505. See 38 U.S.C. §§ 101(21), (22)(C); see also 32 U.S.C. §§ [315] (providing for detailing of regular members of the U.S. Army and Air Force to duty with the Army or Air National Guard of each State); 502(a)(2) (stating that "each company, battery, squadron, and detachment of the National Guard... shall... participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year"); 503 (providing for participation in field exercises); 504 (dealing with National Guard Schools and small arms competitions); 505 (dealing with U.S. Army and Air Force schools and field exercises). Allen v. Nicholson, 21 Vet. App. 54, 58 (2007). Here, the Veteran performed duties as a Guard dual-status technician, working as an automotive and heavy vehicle mechanic. The term "technician" can fall under several different categories of Guard service. Active Guard Reserve (AGR) service qualifies as full-time duty to support the operational needs of the Reserves or National Guard. This AGR service is performed under Title 10 United States Code or Title 32 United States Code, and is issued a DD214 to denote and record the active service. Secondly, active duty support (ADS), formerly called active duty special work (ADSW), can also be full-time, but is considered temporary duty for operational or support purposes of the Reserves or National Guard. This ADS service can also be performed under Title 10 United States Code or Title 32 United States Code. A DD214 is not issued for periods of less than 180 days of active duty. A third type of status is that of a dual status technician. This form of duty is considered that of a federal employee under Title 5 United States Code working for the National Guard with employment contingent on continued membership in the National Guard to perform weekly work duties. This form of duty is not generally reflected in military records and is not considered to be a type of qualifying service. Diseases or injuries incurred during non-active duty for training (ADT) or non-inactive duty for training (IADT) Title 5 employment are not subject to VA benefits. If and when these technicians are also members of the Reserve or National Guard and perform monthly inactive duty for training (IADT) for drill on weekends, and/or attend an annual 15 day (or greater) active duty for training (ADT), then such service could be qualifying for VA purposes. Here in this case, the Veteran's Standard Form 50, Notification of Personnel Action, dated January 27, 2000 following his retirement from the National Guard on November 19, 1999, noted the Veteran's technician status and subsequent retirement as that of a federal employee under the civil service, under the authority of 5 U.S.C. § 8336, and not either Title 10 or Title 32 code sections. No DD214 was issued for any portion of the Veteran's service beyond that of April 1978 when the Veteran received such a form for his time on active duty for basic training from January 1978 to April 1978. The Board thus finds that the Veteran qualifies as such for the purposes of seeking his claims for service connection, and that he served as a dual-status technician under Title 5 authorities until his retirement from the Army National Guard in November 1999. General Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2018). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. 1. Entitlement to service connection for a lumbar spine disability 2. Entitlement to service connection for a total hip replacement, to include as secondary to a lumbar spine disability, 3. Entitlement to service connection for left thigh pain, to include as secondary to a lumbar spine disability, 4. Entitlement to service connection for left leg weakness, to include as secondary to a lumbar spine disability, 5. Entitlement to service connection for hypertension The Veteran is claiming service connection for these five issues, asserting each occurred during his National Guard service between October 1977 and November 1999. The Veteran filed his claim in August 2009 but was denied entitlement to service connection for all five issues because the Veteran had not shown that those medical conditions occurred during active service or periods of ACDUTRA/ADT or INACDUTRA/IADT. The Veteran provided testimony before the undersigned Veterans Law Judge in April 2020 regarding these claims, describing that he hurt his lower back in October 1993, leading to a diagnosis of a herniated disc of the lumbar back in the area of L5 to S1. The Veteran also testified that his hip and thigh claims are secondary to his lumbar back claim. The Veteran's medical records note on October 25, 1993 that the Veteran, working as a mechanic under his Title 5 technician status, injured his lower back. In a follow up treatment form in the medical records dated July 1994, an Army physician and colonel, Dr. J.H., identified as the State Surgeon for the District of Columbia Army National Guard, noted the Veteran's progress in recovering from the lumbar back injury and also specifically noted that the Veteran's injury occurred "not while on drill or AT status." Dr. J.H. also directed the Veteran be placed on a physical profile to limit his duties given the nature of his injury and the status of the recovery. The claims file contains no record or inference of a record relating to a line of duty determination regarding the Veteran's October 1993 lumbar back injury. The claims file also contains documentation of the Veteran's ADT period for 1993, which occurred from July 31, 1993 to August 14, 1993 that year, and there is no documentation or claim for any injury or condition during that 15-day period of active duty for training for the Veteran, inferring that the October 1993 back injury was not within the Veteran's ADT period for 1993. The claims file does not contain any documentation about any hip or lower extremity injury or condition, or record of hypertension, in the claims file in any type of record prior to November 1999, the date of retirement from the National Guard under the authority of 5 U.S.C. § 8336. The Board does note multiple medical records after the Veteran's Title 5 service ends in November 1999 for various hip, thigh, and hypertension conditions, among others, but those records are all dated 2002 and later, after the Veteran's retirement. After the original rating decision denying the Veteran's five service connection claims in April 2010, VA provided VA examinations for the Veteran's lumbar back, thigh and lower extremities, and hypertension. The examiner diagnosed lumbar spine degenerative disc disease with radiculopathy, dating from the October 1993 injury, degenerative arthritis of each hip, dating from an August 2006 diagnosis, hip replacements dating from 2007, and hypertension with an initial diagnosis of 2009. The examiner noted in each diagnosis there was no sign of any earlier diagnosis than the initial dates noted. The Board notes the statements from the Veteran regarding his lumbar back, hip and thigh, and hypertension disabilities. Generally, lay evidence is probative with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence on its own can be sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). To establish status as a Veteran based upon a period of ACDUTRA/ADT, a claimant must establish that he was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA/ADT. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509 (2000); Paulson v. Brown, 7 Vet. App. 466 (1995). The fact that a claimant has established status as a Veteran for other periods of service (e.g., a prior period of active duty) does not obviate the need to establish that he is also a Veteran for purposes of the period of ACDUTRA/ADT where the claim for benefits is based on that period of ACDUTRA/ADT. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Here, the Veteran's claims file contains his military personnel file specifying the exact dates of his ACDUTRA/ADT periods which satisfies these requirements for documentation of service, in addition to his active duty service as noted earlier. The Board notes the Veteran's military service records indicate active duty service from January 2, 1978 to April 28, 1978, after which the Veteran reverted to his National Guard status. During his Title 5 Guard service, which ended in November 1999, there are periods of ACDUTRA/ADT but not at or near the time of the Veteran's lumbar back injury in October 1993. Thus, for the purposes of establishing a claim for service connection, the qualifying in-service incident must have originated in a period of active service or ADT. Service outside the active or ACDUTRA/ADT periods noted above is therefore not qualifying for the purposes of establishing service connection. See 38 C.F.R. §§ 3.1(a), 3.6(a). The Board has reviewed the Veteran's claims file, and there are no corresponding incidents related to the Veteran's five service connection claims during active service or active duty for training. There is the January-April 1978 basic training for which a corresponding DD214 was issued. The Veteran's remaining 22 years of service in the National Guard as a dual-status technician under Title 5 authority had no injury or disease diagnosis occur during any qualifying period of active duty or active duty for training. No DD214 was issued for any further portion of service. The Veteran's NGB Form 22 documents his Guard service from its commencement in October 1977 through to his Title 5 retirement in November 1999, but there is no documentation that would indicate any qualifying active or active duty for training. The claims file record regarding the Veteran's October 1993 lumbar back disc herniation injury is specifically denoted by the State Surgeon of the District of Columbia Army National Guard not to have occurred during drill status or active duty for training. There is no record of Title 10 or Title 32 service for this Veteran during his Guard career that might otherwise qualify him for a qualifying determination. The claims file contains no record or inference of a record regarding any possible line of duty determination for any medical condition during the 22-year period of Guard service. As such, the Board finds there is no period of qualifying service pursuant to 38 U.S.C. § 101(2) or related sections that would indicate any eligibility or consideration for any VA benefit for the Veteran's lumbar back injury, hip conditions, or hypertension during his 22-year period of Guard service. 38 U.S.C. § 101; 38 C.F.R. § 3.6. (CONTINUED ON NEXT PAGE) Where the law is dispositive, the claim must be denied on the basis of absence of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed lumbar back, hip replacement, hip pain, left leg weakness, and hypertension disabilities were not incurred in a qualifying period of service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for lumbar back, hip replacement, hip pain, left leg weakness, and hypertension disabilities, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.