Citation Nr: 22014455 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 17-53 117 DATE: March 14, 2022 ORDER Entitlement to service connection for deep vein thrombosis (DVT) of the left leg is denied. Entitlement to service connection for pulmonary embolism is denied. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that DVT of the left leg began during service or is otherwise related to an in-service injury or disease. 2. The evidence of record persuasively weighs against finding that pulmonary embolism began during service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for DVT of the left leg have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for pulmonary embolism have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had a period of active duty for training (ACDUTRA) in the U.S. Army Reserve (USAR) from May 26, 1988, to August 3, 1988. He also had additional unverified periods of ACDUTRA in the USAR. This matter comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in May 2019, when it was remanded for further development. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any material issue, reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). "In order to qualify for VA benefits, a claimant must demonstrate that he, she, or the party upon whose service the claimant predicates the claim was a 'veteran.'" Cropper v. Brown, 6 Vet. App. 450, 452 (1994). A "veteran" for VA benefits purposes is "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). The term "active military, naval, or air service" 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) during which the individual concerned was disabled or died from an injury (but not a disease) incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). There are several small exceptions carved out for specific medical conditions such as heart attacks and strokes that occur during a period of INACDUTRA or enroute to or from INAC]DUTRA. 38 U.S.C. § 101(24) (C)(ii). The burden to establish "Veteran" status for a claim based on a period of ACDUTRA is on the appellant. Smith v. Shinseki, 24 Vet. App. 40, 44 (2010). There is a clear distinction between individuals who seek VA benefits based on service during active duty versus service during ACDUTRA or INACDUTRA. To establish status as a "veteran" based upon a period of ACDUTRA, 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. 38 U.S.C. § 101(24); 38 C.F.R. § 3.1(a), (d); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In Donnellan v. Shinseki, 24 Vet. App. 167, 171-75 (2010), the United States Court of Appeals for Veterans Claims (Court) stated that the placement of the burden of proof on a veteran was consistent with the distinction made in § 101(24) between an ACDUTRA claimant and an active duty claimant. The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). In this case, the appellant has not established veteran status as to his period of ACDUTRA, as the appellant has not been service-connected for any disabilities. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Hill v. McDonald, 28 Vet. App. 243 (2016). 1. Entitlement to service connection for DVT) of the left leg. 2. Entitlement to service connection for pulmonary embolism. The question for the Board is whether the appellant has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while a private medical record submitted in December 2014 confirms the appellant has a diagnosis of DVT in the left leg and pulmonary embolism, the evidence of record persuasively weighs against finding that these conditions began during service, or are otherwise related to an in-service injury, event, or disease. The Board finds that there was not an in-service event, injury, or disease. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(d). The service treatment records (STRs) are silent for any possible symptoms, complaints, or treatment of DVT of the left leg and pulmonary embolism. In addition, the STRs show the appellant elected not to undergo a separation medical examination in a June 1987 signed statement. The Board further finds that the evidence of record does not support a finding that the appellant's DVT of the left leg and pulmonary embolism are related to service. As indicated above, STRs are silent as to any symptoms or complaints regarding DVT of the left leg and pulmonary embolism. Furthermore, the first sign and showing of a diagnosis is in a private medical record dated in 2014, nearly two decades after service. This gap in time weighs against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the appellant failed to provide evidence which demonstrated continuity of symptomatology and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Moreover, the November 2019 VA examiner opined that the appellant's DVT and pulmonary embolism are less likely than not related to his service. The examiner reasoned that STRs were silent for any evidence of treatment or evaluation of a DVT or pulmonary embolism condition. In addition, the examiner noted that the appellant reported he first noticed his DVT "in the 2000s" and pulmonary embolism in 2012, although the examiner noted this was inconsistent with the record submitted in December 2014 noting a diagnosis of both conditions in 2014. The examiner further noted that the appellant likely developed pulmonary embolism due to complications and treatment of his DVT in the left leg. However, the examiner concluded that as STRs were without objective evidence of either condition in service, and the appellant did not seek treatment or study for his symptoms until nearly two decades after discharge from service, a nexus could not be established. The Board has considered the appellant's lay statements that his DVT of the left leg and pulmonary embolism are related to service. However, he is not competent to provide an opinion regarding etiology, as this question is of the type that the courts have found to be beyond the competence of lay witnesses and not capable of lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support the presence of a disability even where not corroborated by contemporaneous medical evidence). Furthermore, no additional competent evidence was provided to support the appellant's contentions or show a nexus between his conditions and service. After a full review of the record, the Board finds that the claims must be denied. The evidence weighs persuasively against a finding that the appellant's DVT of the left leg and pulmonary embolism were incurred in or related to service. Accordingly, service connection is not warranted. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ariasaif, Mary 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.