Citation Nr: 21041725 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 18-30 028 DATE: July 10, 2021 ORDER Entitlement to service connection for arthritis is denied. Entitlement to service connection for a left leg injury is denied. Entitlement to service connection for a left leg scar is denied. Entitlement to service connection for a left shoulder injury is denied. Entitlement to service connection for a head injury is denied. Entitlement to service connection for asthma is denied. Entitlement to service connection for a lung condition, to include a pulmonary embolism, is denied. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, bipolar disorder, and a sleep disorder, is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has arthritis due to an in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the Veteran has a left leg injury due to an in-service event, injury, or disease. 3. The preponderance of the evidence is against finding that the Veteran has a left leg scar due to an in-service event, injury, or disease. 4. The preponderance of the evidence is against finding that the Veteran has a left shoulder injury due to an in-service event, injury, or disease. 5. The preponderance of the evidence is against finding that the Veteran has a head injury due to an in-service event, injury, or disease. 6. The preponderance of the evidence is against finding that the Veteran has asthma due to an in-service event, injury, or disease. 7. The preponderance of the evidence is against finding that the Veteran has a lung condition due to an in-service event, injury, or disease. 8. The preponderance of the evidence is against finding that the Veteran has an acquired psychiatric disorder due to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for arthritis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for a left leg injury have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to service connection for a left leg scar have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for entitlement to service connection for a left shoulder injury have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for entitlement to service connection for a head injury have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for entitlement to service connection for asthma have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for entitlement to service connection for a lung condition have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 8. The criteria for entitlement to service connection for an acquired psychiatric disorder. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army Reserve from May 2008 to May 2016, including an extended period of active duty for training (ACDUTRA) from August 20, 2008 to February 19, 2009. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is in the record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when: (1) the weight of the evidence supports the claim, or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Veteran Status This matter includes consideration of the Veteran's status as a claimant for a period of ACDUTRA from August 2008 to February 2009. Generally, to qualify for VA benefits, a claimant must be a "veteran" under the law. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Under 38 U.S.C. § 101(2) a "veteran" is defined as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and; (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by reserves for training purposes." 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA without more will not suffice. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a such a period, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA. Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA service alone. 38 U.S.C. § 101(2), (24); see Acciola, 22 Vet. App. at 324. 1. Entitlement to service connection for arthritis is denied. 2. Entitlement to service connection for a left leg injury is denied. 3. Entitlement to service connection for a left leg scar is denied. 4. Entitlement to service connection for a left shoulder injury is denied. The Veteran contends that he has a left leg injury, left leg scar, left shoulder injury, and arthritis that are related to an in-service event, illness, or injury, as the Veteran stated that each of these conditions was caused by an August 2015 motor vehicle accident. In September 2016, the RO sent the Veteran correspondence notifying the Veteran that it had tried to contact him by phone to clarify his arthritis condition. The Veteran was notified that, because the RO was unable to gain further clarification, it was considering the arthritis claim in relation to his claimed left leg and left shoulder issues. The Veteran's DD Form 214 reflects that he served a period of ACDUTRA from August 20, 2008 to February 19, 2009. A May 2008 military personnel record reported that the ACDUTRA was for basic training and advanced individual training for his military occupational specialty as a civil affairs specialist. A September 2008 service treatment record reported that the Veteran experienced left leg pain after sprinting. He was diagnosed with limb pain and educated on the signs and symptoms of dehydration. A September 2008 service treatment record reported that the Veteran experienced joint pain in his left shoulder for four days in September 2008. He was diagnosed with joint pain localized in the shoulder. A May 2009 periodic health assessment documented the Veteran's report that he did not have joint pain. No medical problems were identified. A June 2009 periodic health assessment reported that the Veteran was physically fit for retention and reported no abnormalities An October 2012 periodic health assessment reported that the Veteran did have any joint pain. A May 2013 periodic health assessment documented the following comments from the Veteran: "My joints lock up from time to time. Arthritis?" The provider noted that he had intermittent pain with no limitations. A September 2014 periodic health assessment documented the Veteran's report that he had joint pain in his knees and ankles. The provider noted that he had a history of arthritis in general but was still able to exercise. A September 2014 functional capacity certificate reported that the Veteran may have trouble running two miles due to ankle and knee pain. An August 2015 private orthopedic surgery note reported that the Veteran underwent a surgical procedure to treat a left femoral shaft fracture by intramedullary rod. A November 2015 private medical record reported that the femur injury was caused by a motor vehicle accident. A November 2015 private treatment record reported that the Veteran suffered a left acromioclavicular separation secondary to a motor vehicle accident on August 26, 2015. The Veteran reported continued shoulder discomfort. A September 2016 radiology interpretation of x-rays of the Veteran's left shoulder and left femur did not reveal arthritis. The Veteran was provided a VA hip and thigh examination in September 2016. The Veteran was diagnosed with left femur fracture from a motor vehicle accident in rural Pennsylvania in August 2015. The Veteran reported that the condition had improved. He was not diagnosed with a left hip disorder. The examiner opined that the left leg injury was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness as there is no record of a left femur fracture documented until the November 2015 records. The Veteran was provided a VA scars examination in September 2016. The examiner identified a linear scar on the Veteran's anterior left mid-thigh. The scar was a surgical scar from a left femur open reduction internal fixation after the Veteran's motor vehicle accident. The examiner opined that the left leg injury was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness because there is a small surgical scar on the anterior left thigh that correlates with the open reduction internal fixation, which is only documented post-military service on November 24, 2015. The Veteran was provided a VA shoulder examination in September 2016. The Veteran was diagnosed with a left acromioclavicular joint separation from a motor vehicle accident in rural Pennsylvania in August 2015. The examiner opined that the left shoulder separation was less likely than not (less than 50 percent probability) incurred in or caused by an in-service injury, event, or illness as there is no record of a left shoulder separation documented until the November 2015 records. At the Veteran's March 2021 Board hearing, the Veteran testified that his left leg injury, left leg scar, left shoulder injury, and arthritis of his leg and shoulder were caused by the August 2015 motor vehicle accident. The Veteran testified that, at the time of the accident, he was going to pick up a friend after working at his civilian job. He clarified that he was not in a military uniform at the time of the accident. When he was asked by his representative whether the accident had anything to do with his military service, the Veteran stated: "Well, I was in the Reserves at the time, so." During the hearing, the Veteran also stated that, at the time of the motor vehicle accident, he was serving in active duty for training status at Fort Indiantown Gap. However, the Board does not find this statement credible as there is no line of duty investigation or reference to a service-related accident in the record and the Veteran himself testified that the accident happened after he was working at his civilian job. Therefore, the Board finds that the preponderance of evidence is against finding that the August 2015 motor vehicle accident that caused the Veteran's left leg and left shoulder injuries were incurred during a period of active duty for training or inactive duty training. As previously described, the Veteran reported experiencing left leg pain and left shoulder pain in September 2008. However, approximately three months after the Veteran completed his initial ACDUTRA, a May 2009 periodic health assessment documented the Veteran's report that he did not have joint pain and no medical problems were identified. The earliest evidence of possible arthritis was when the Veteran complained in May 2013 that his joints lock up from time to time and suggested that this could possibly be due to arthritis. The Veteran did not report any injuries related to his military service associated with this joint condition. The Veteran contends that he has arthritis of his leg and shoulder that was caused by an August 2015 motor vehicle accident. However, a September 2016 radiology interpretation of x-rays of the Veteran's left shoulder and left femur did not reveal arthritis. Moreover, the injuries to the left shoulder and left femur were not incurred during a period of ACDUTRA or inactive duty training, as the Veteran testified at the March 2021 Board hearing that, at the time of the August 2015 motor vehicle accident, he was going to pick up a friend after working at his civilian job. As described above, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had arthritis of the left shoulder or left leg during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a left leg injury, left leg scar, left shoulder injury, and arthritis. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for a left leg injury, left leg scar, left shoulder injury, and arthritis must be denied. 5. Entitlement to service connection for a head injury is denied. The Veteran contends that he has a head injury that is related to an in-service, event, illness, or injury, as the Veteran stated that he has a head injury that was caused by an August 2015 motor vehicle accident. The Board notes that the Veteran was not afforded a VA examination for his service connection claim for asthma. In determining whether the duty to assist requires that a VA medical examination be provided, or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumptive period; (3) whether there is an indication that the disability or symptoms may be associated with service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159 (c)(4). The third factor, in particular, is a low threshold. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this regard, the Board finds that Veteran has not submitted sufficient evidence to indicate that he has asthma related to an event, injury, or disease that occurred in service. Accordingly, the Board finds that no further development of the Veteran's claims for service connection for asthma. A review of the Veteran's medical records does not reflect any complaints, findings, or treatment for any conditions related to a head injury. At the Veteran's March 2021 Board hearing, when he was asked by his representative if he hit his head in the August 2015 motor vehicle accident, the Veteran stated that "I could have." As described above, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had decreased vision during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a head injury. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for a head injury must be denied. 6. Entitlement to service connection for asthma is denied. The Veteran contends that he has asthma that is related to an in-service event, illness, or injury. The Board acknowledges that the Veteran was not afforded a VA examination for his claim for service connection for asthma. However, the Board finds that the Veteran has submitted insufficient evidence to indicate that he has asthma that is related to an event, injury, or disease that occurred in service. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 79. Accordingly, the Board finds that no further development of the Veteran's claims for service connection for asthma is required. A review of the Veteran's service treatment records from his initial period of ACDUTRA from August 2008 to February 2009 does not reflect any complaints, findings, or treatment for any conditions related to asthma. Periodic health assessments conducted in May 2009, October 2012, and May 2013 documented the Veteran's report that he did not have asthma. A September 2014 periodic health assessment documented the Veteran's report that he had asthma and uses albuterol twice a week. He reported that he was hospitalized with asthma as a child. At the Veteran's March 2021 Board hearing, he testified that he had asthma before entering service. He reported that he did not seek treatment for asthma while he was in the military. When asked if his asthma got worse during service, the Veteran stated, "No, I think it got better actually." As previously described, a review of the Veteran's service treatment records from his initial period of ACDUTRA from August 2008 to February 2009 does not reflect any complaints, findings, or treatment for any conditions related to asthma. At the Veteran's March 2021 Board hearing, he testified that he had asthma before entering service and did not seek treatment for asthma while in service. Notably, he also testified that he believed his asthma condition got better during service. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's service connection claim for asthma. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for asthma must be denied. 7. Entitlement to service connection for a lung condition, to include a pulmonary embolism, is denied. The Veteran contends that he has a lung condition that is related to an in-service event, illness, or injury. The Board acknowledges that the Veteran was not afforded a VA examination for his claim for service connection for a lung condition. However, the Board finds that the Veteran has submitted insufficient evidence to indicate that he has a lung condition that is related to an event, injury, or disease that occurred in service. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 79. Accordingly, the Board finds that no further development of the Veteran's claims for service connection for a lung condition is required. At the Veteran's March 2021 Board hearing, the Veteran testified that he had a pulmonary embolism around 2014. He stated that he was treated at a civilian hospital and did not report the condition to the military. A review of the Veteran's medical records does not reflect any complaints, findings, or treatment for any conditions related to a lung condition, to include a pulmonary embolism. A November 2011 VA treatment record reported that the Veteran's lungs were clear to auscultation. As described above, the first prong of a service connection claim is a current disability. The evidence does not demonstrate that the Veteran had a lung condition, to include a pulmonary embolism during the pendency of the appeal. The U.S. Court of Appeals for Veterans Claims has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran's claim for service connection for a lung condition, to include a pulmonary embolism. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not helpful to this claimant. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection has not been established and the Veteran's claim for a lung condition, to include a pulmonary embolism must be denied. 8. Entitlement to service connection for an acquired psychiatric disorder, to include paranoid schizophrenia, bipolar disorder, and a sleep disorder, is denied. The Veteran contends that he has an acquired psychiatric disorder that is related to an in-service event, illness, or injury. The Board acknowledges that the Veteran was not afforded a VA examination for his claim for service connection for an acquired psychiatric disorder. However, the Board finds that the Veteran has submitted insufficient evidence to indicate that he has an acquired psychiatric disorder that is related to an event, injury, or disease that occurred in service. 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 79. Accordingly, the Board finds that no further development of the Veteran's claims for service connection for an acquired psychiatric disorder is required. A review of the Veteran's service treatment records from his initial period of ACDUTRA from August 2008 to February 2009 does not reflect any complaints, findings, or treatment for an acquired psychiatric disorder. A May 2009 periodic health assessment did not identify any medical problems. An October 2012 periodic health assessment reported that the Veteran did not have any mental health concerns. An August 2014 private treatment record reported that the Veteran was hospitalized for a psychiatric condition for 10 days after police pulled him over and took him to St Luke's Hospital for erratic behavior. The Veteran reported no prior psychiatric history. His reported stressors were living with his fiancée and being unemployed. The Veteran was diagnosed as bipolar with psychotic features. An August 2014 psychiatric history reported that the Veteran's stepfather abused his mother, which emotionally affected him from age 5 to 15/16. A September 2014 private treatment record reported that the Veteran was having delusions and hearing voices. A November 2015 private psychiatric evaluation reported that the Veteran has a long history of behavioral abnormalities. He began experiencing auditory hallucinations around the age of 10. He would hear his deceased brother calling his name. He has had episodes of irritability and lability and his behavior has been bizarre at times. Most recently he was admitted to a hospital due to mania and command auditory hallucinations. The Veteran was diagnosed with bipolar disorder and psychosis. At the Veteran's March 2021 Board hearing, the Veteran testified that he had a mental breakdown in 2013 when military police accused him of not owning his car during an inspection. He stated that a whole year passed before he received an official diagnosis in a mental hospital in 2014. According to the Veteran, the 2013 mental breakdown happened during active duty for training at Fort Indiantown Gap. However, an August 2014 private treatment record documented the Veteran's report that he had no prior psychiatric history before being hospitalized in 2014 for a psychiatric condition for 10 days after the police pulled him over and took him to St Luke's Hospital for erratic behavior. His reported stressors at that time were living with his fiancée and being unemployed. The Court of Appeals for Veterans Claims has determined the Board may properly assign more probative value to lay statements in contemporaneous medical records than subsequent statements made for compensation purposes. Harvey v. Brown, 6 Vet. App. 390, 394 (1994). Accordingly, the Board finds the August 2014 denial of any psychiatric problems prior to being pulled over by the police and hospitalized in 2014 more probative than the Veteran's March 2021 Board hearing testimony that he had a mental breakdown during a period of active duty for training in 2013, which was made in the course of pursuing a claim for benefits. Considering the foregoing, the preponderance of probative evidence of record is against the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. Because the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service connection for an acquired psychiatric disorder is therefore denied. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.