Citation Nr: 21029305 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 17-50 164A DATE: May 13, 2021 REMANDED Entitlement to service connection for a left foot disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from March 1982 to March 1986. He also had periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) with the National Guard and Reserves from March 1986 to August 2015. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). A March 2020 Board decision denied entitlement to service connection for a left foot disability, and the Veteran appealed. In February 2021, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR), vacating and remanding to the Board that matter. Entitlement to service connection for a left foot disability is remanded. The Veteran seeks service connection for a left foot disability, which he contends is due to injury from wearing "faulty duty boots" and prolonged weightbearing during his ACDUTRA and INACDUTRA with the Air National Guard. See Veteran's October 2017 substantive appeal and January 2021 brief. The Veteran's August 2016 notice of disagreement (NOD) reflects: "Enclosed is medical proof of my left foot neuroma thru the Air Guard and limiting my physical movement while on active duty." The attached document consisted of (1) a December 2010 Army National Guard record showing that the Veteran had bilateral Morton's neuroma removed in November, 2010 and had ongoing physical therapy; (2) an October 2011 note showing he had left plantar surgery - mobility restriction; and (3) private treatment records dated in 2014 showing complaints of painful stump neuroma. Subsequently, in an October 2016 NOD, the Veteran reported that he served between March 1982 and August 2015, and that he was diagnosed with left foot Morton's neuroma in 2008, which was caused by his "faulty duty boots" and that this was well within his duty period. See Form 9 (October 2017). Generally, service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Reserve and National Guard service generally means active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6(c). That usually includes two weeks of annual training and/or an initial period of training. INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101 (23); 38 C.F.R. § 3.6(d). With respect to National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1110, 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). The evidentiary presumptions-such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases that manifest to a degree of 10 percent or more within a specified time after separation from service-do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). The Veteran's service records indicate that he had no left foot disability service separation in March 1986. Periodic non-flying physicals dated in February 1991, November 1993, and October 1998 reflect normal feet. The record shows that, while a member of the National Guard, the Veteran was diagnosed with left Morton's neuroma in November 2010. A November 2010 treatment reported that he had failed conservative care including cortisone injections, shoe inserts, modified shoes, etc. As such, underwent excision of the left Morton's neuroma in November 2010. A private podiatrist, Dr. C.F., suggested in March 2011 that the Veteran's foot pain "could be related to his prolonged weightbearing." Also, private treatment records reflect that the Veteran has been diagnosed with Morton's neuroma, metatarsalgia, and plantar fasciitis of the left foot. To ensure that VA has met its duty to assist, remand is necessary to address the nature and etiology of the Veteran's foot disabilities, to include whether a disability of the foot is due to injury from boot worn by the Veteran during any ACDUTRA/INACDUTRA as theorized by him. Also, remand is necessary to obtain complete copies of all relevant private treatment records. A review of the claims file reflects piecemeal submission of private treatment records and these records do not appear to be completeespecially given the Veteran's report that he was diagnosed with Morton's neuroma in 2008 and the absence of any documented finding for such prior to 2010. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Accordingly, the matter is REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for symptoms and treatment of his foot problems during and since his membership in the National Guard and Reserves (i.e. March 1986 to August 2015) and SPECIFICALLY THOSE THAN INCLUDE A DIAGNOSIS FOR MORTON'S NEUROMA IN 2008 AS HE REPORTED TO VA IN CONNECTION WITH THIS CLAIM. Make two requests for the authorized records from all identified sources unless it is clear after the first request that a second request would be futile. 2. Verify all active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) dates for service in the Air Force Reserve and National Guard from March 1986 to August 2015. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). Document all requests for information as well as all responses in the claims file. 3. Then, schedule the Veteran for a VA examination for his left foot disability and provide the clinician with the verified dates of the Veteran's ACDUTRA and INADUTRA. The examiner must review the claims file. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. Based on review of the record, detail the Veteran's reported symptoms, including the nature, onset, progression and severity of any symptom consistent with any foot disorder. The opinion should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician must opine on: Whether any foot disability at least as likely as not (a) began during any period of verified ACDUTRA or INACDUTRA or (2) is related to an in-service injury, claimed as wearing "faulty duty boots" and/or prolonged weightbearing during any period of verified ACDUTRA or INACDUTRA. Consider and expressly address the Veteran's theory that his boots worn during his ACDUTRA/INACDUTRA with the National Guard/Reserves caused his foot disability. Explain. Address whether the Veteran's reports about his footwear during ACDUTRA/INACDUTA and his symptoms align with how any of the currently diagnosed conditions are known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? 4. Ensure that the VA medical opinion obtained include a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.D. Anderson, 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.