Citation Nr: 22018442 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-28 469A DATE: March 29, 2022 ORDER Service connection for a right hip disability is denied. Service connection for a left hip disability is denied. REMANDED Service connection for prostate cancer is remanded. FINDINGS OF FACT 1. In a March 1984 administrative decision, the Agency of Original Jurisdiction (AOJ) determined that the appellant's service in the U.S. Marine Corps (USMC) from January 4, 1978 to March 19, 1981 is dishonorable for VA purposes and is a bar to VA benefits under the provisions of 38 C.F.R. § 3.12(d)(4). 2. The appellant served at Camp Lejeune for more than 30 days during active service from January 4, 1978 to March 19, 1981, but did not have subsequent active service at Camp Lejeune for a period of more than 30 days. 3. The evidence of record persuasively weighs against finding that the appellant's right and left hip disabilities began during a period of active service, or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a left hip disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the USMC from January 1978 to March 1981; his discharge from this period of service was other than honorable. The appellant also had a period of active duty for training (ADT) from October 1981 to March 1982, in the U.S. Army National Guard (ARNG). This case comes to the Board of Appellants' Appeals (Board) on appeal from a decision of the Agency of Original Jurisdiction (AOJ) dated in March 2016. The appellant testified before the undersigned Appellants Law Judge at a November 2021 hearing; a transcript of the hearing is of record. The issue of the character of the appellant's discharge from his first period of service is not in appellate status. Previously, in an unappealed March 1984 administrative decision, the AOJ determined that the appellant's discharge under other than honorable conditions from a period of service in the USMC from January 4, 1978 to March 19, 1981 is dishonorable for VA purposes and a bar to VA benefits under the provisions of 38 C.F.R. § 3.12(d)(4). Prior to the instant appeal, by a letter to the AOJ dated in September 2003, the appellant requested that VA reevaluate his discharge. In May 2004, the AOJ notified him that his discharge was considered dishonorable for VA purposes, and he did not appeal this determination. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Under the law, active military service includes (1) active duty, but also (2) any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (IDT) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). Certain chronic diseases, including arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to contaminants (defined as the volatile organic compounds trichloroethylene (TCE), perchloroethylene (PCE or PERC), benzene, and vinyl chloride) in the on-base water supply located at Camp Lejeune, even though there is no record of such disease during service, if they manifest to a compensable degree at any time after service, if a veteran, former reservist, or a member of the National Guard, who had no less than 30 days (consecutive or nonconsecutive) of service at the United States Marine Corps Base Camp Lejeune and or Marine Corps Air Station New River in North Carolina, during the period beginning on August 1, 1953, and ending on December 31, 1987. 38 C.F.R. §§ 3.307(a)(7), 3.309 (f). The following diseases shall be service-connected even though there is no record of such disease during service, subject to the rebuttable presumption provisions of 3.307(d): kidney cancer, liver cancer, non-Hodgkin's lymphoma, adult leukemia, multiple myeloma, Parkinson's disease, aplastic anemia and other myelodysplastic syndromes, and bladder cancer. 38 C.F.R. § 3.309(f). As a threshold matter, "veteran" status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is "axiomatic that, to receive VA disability compensation benefits, a claimant must first establish appellant status"). To establish status as a veteran based upon a period of 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 ADT. 38 C.F.R. §§ 3.1(a), (d); Harris v. West, 13 Vet. App. 509 (2000). To have basic eligibility for veterans benefits based on a period of duty as a member of a state 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. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101(21), (22)(C); Allen, supra. 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 ADT where the claim for benefits is based on that period of ADT. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Without the status as a veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to veterans. For example, presumptive periods allowing for the presumed incurrence of a condition in service do not apply to ADT or IDT, and neither do the presumptions of soundness and aggravation. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991). The appellant has not established veteran status with regard to any periods of service after March 1981. The Board notes that although service personnel records and service treatment records from the appellant's first period of service have been obtained, the claims file does not contain service treatment records from the appellant's period of service in the ARNG. Multiple attempts to obtain such records have been unsuccessful. By a letter to the appellant dated in April 2018, the AOJ advised him that it had determined that these records could not be located, all efforts to obtain such records had been exhausted, and based on these facts, further attempts to obtain the records would be futile. 1. Service connection for a right hip disability, claimed as due to contaminated water at Camp Lejeune, is denied. 2. Service connection for a left hip disability, claimed as due to contaminated water at Camp Lejeune, is denied. The appellant seeks service connection for bilateral hip disabilities, to include osteoarthritis and subsequent hip replacements, and asserts that these disabilities are due to his exposure to contaminated water at Camp Lejeune during his period of active duty in the USMC from January 1978 to March 1981. See his January 2016 claim, March 2017 notice of disagreement, November 2021 Board hearing transcript. The appellant does not assert, and the evidence does not reflect, that he was stationed at Camp Lejeune during subsequent periods of service, including a period of ADT in the ARNG from October 1981 to March 1982. In fact, he specifically denied service at Camp Lejeune during this period of service. See November 2021 Board hearing transcript, page 4. The evidence reflects that the appellant has current bilateral hip disabilities. He has been diagnosed with end-stage osteoarthritis of the right hip, and osteoarthritis of the left hip. He underwent a right total hip arthroplasty (THA) in December 2014, and a left THA in June 2015. See private medical records from Banner Health. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. In order to qualify for VA benefits, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 U.S.C. § 101(2); 38 C.F.R. § 3.12 (a). The DD Form 214 from the appellant's period of active duty in the USMC from January 4, 1978 to March 19, 1981 shows that he was discharged under other than honorable conditions, and the narrative reason for separation was misconduct due to frequent involvement. The DD Form 214 from the appellant's second period of service shows that he had a period of ADT in the ARNG from October 26, 1981 to March 31, 1982, during which he underwent training as a food service specialist, and received an honorable discharge. The narrative reason for separation was release from initial ADT upon completion of military occupational specialty (MOS) training. A March 12, 1982 diploma from the U.S. Army Quartermaster School in Fort Lee, Virginia, shows that he completed a food service specialist course there. In October 2003, the Board for Correction of Naval Records denied the appellant's application for recharacterization of his other-than-honorable discharge from his January 1978 to March 1981 period of service in the USMC. The Board for Correction of Naval Records found that potentially mitigating factors were insufficient to warrant recharacterization of his discharge given his frequent misconduct that resulted in two non-judicial punishments, a special court martial, and a summary court martial for offenses that included the use of marijuana and numerous periods of unauthorized absence totalling more than four months. The Board finds that since the appellant served at Camp Lejeune for more than 30 days during service in the USMC from January 1978 to March 1981, he is presumed to have been exposed to contaminated water during such service. However, his discharge from this period of active service is considered to have been issued under dishonorable conditions, and VA has determined that it was issued because of willful and persistent misconduct. 38 C.F.R. § 3.12(d)(4). This discharge is a regulatory bar to the receipt of VA benefits based on that period of service. See id., March 1984 VA administrative decision. Direct or presumptive service connection is not warranted for bilateral hip disabilities based on this period of service. Moreover, his claimed bilateral hip conditions, to include osteoarthritis and hip replacements, are not diseases for which presumptive service connection based on exposure to contaminated water at Camp Lejeune may be granted. 38 C.F.R. § 3.309(f). The remaining question for the Board is whether the appellant has current disabilities of the right and left hips, to include arthritis and hip replacements, that are related to another period of service that was terminated by discharge or release under conditions other than dishonorable, or are at least as likely as not related to an in-service injury, event, or disease during such period. The Board concludes that, while the appellant has a diagnosis of arthritis of the bilateral hips, status post THAs, the evidence of record persuasively weighs against finding that it began during a period of honorable active service, or is otherwise related to an in-service injury, event, or disease. The appellant does not assert that his current bilateral hip disabilities were incurred during a period of service after his discharge from the USMC, including his period of ADT in the ARNG from October 1981 to March 1982. The Board acknowledges that the appellant has not received a VA examination pursuant to his claims for service connection for bilateral hip disabilities. In this case, there is no evidence of an event, injury, or disease related to the claimed disabilities during a period of honorable active service or a period of ADT or IDT, or competent evidence suggesting that those disabilities are related to a period of service. Therefore, the Board finds that there is no duty to provide a VA examination or obtain a medical opinion with respect to these claims. See 38 C.F.R. §§ 3.159(c); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006); Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (noting that a conclusory lay statement that a current condition is related to service is insufficient to warrant a medical examination because it would "eliminate the carefully drafted statutory standards governing the provision of medical examinations and require the Secretary to provide such examinations in virtually every appellant's disability case"). While the appellant believes his bilateral hip disabilities are related to his period of active duty in the USMC, service connection based on such period of service is barred. The evidence of record persuasively weighs against finding that an in-service injury, event, or disease of the hips occurred during a subsequent period of service. Finally, because he has not established veteran status with regard to any period of service after his period of active service from January 1978 to March 1981, presumptive service connection for arthritis of the hips is not warranted. As the competing evidence is not in approximate balance, or nearly equal, the benefit-of-the-doubt rule is inapplicable, and the claim must be denied. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. § 3.102. REASONS FOR REMAND 3. Service connection for prostate cancer is remanded. The appellant asserts that his prostate cancer is due to his in-service exposure to contaminated water at Camp Lejeune during his period of active duty in the USMC from January 4, 1978 to March 19, 1981, a period of service that is dishonorable for VA purposes. Alternatively, he claims that prostate cancer manifested during his period of ADT in the ARNG from October 1981 to March 1982, and testified that he had symptoms of urinary frequency during that period. See November 2021 Board hearing transcript, pages 6, 10. The Board cannot make a fully-informed decision on the issue of service connection for prostate cancer because no VA examiner has opined whether this condition was incurred during a period of ADT service from October 1981 to March 1982, and such an opinion is needed on remand. In his January 2016 claim, the appellant reported that he had service in the National Guard from October 1981 to March 1982, and a DD Form 214 has been obtained from this period of service. At the Board hearing, he testified that during his ARNG service, he was initially stationed at Fort Lee, Virginia, and then in Atlantic City. The Board notes that a July 2014 VA Information Report regarding the Appellant's periods of service indicated that the appellant had service in the ARNG from October 1981 to June 1982. Since the appellant indicated that his prostate cancer may have begun during his service in the National Guard, the AOJ should attempt to verify any periods of active duty for training or following his discharge from the USMC in March 1981. Any VA treatment records are within VA's constructive possession, and are considered potentially relevant to the issue on appeal. On remand, updated VA medical records should be obtained. The matters are REMANDED for the following action: 1. Verify all active duty for training in the Army National Guard from 1981 to 1983. 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. 2. Obtain the appellant's VA treatment records for the period from June 2018 to the present. Then schedule the appellant for a VA examination for his prostate cancer. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the disability at least as likely as not related to a period of ADT from October 1981 to March 1982, including alleged urinary frequency during this period? Provide a rationale to support the opinion. In providing the requested opinion, consider the appellant's description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? If it is not possible to provide the requested opinion, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A complete rationale should be provided for all opinions and conclusions. S. BUSH Appellants Law Judge Board of Appellants' Appeals Attorney for the Board C. L. Wasser, 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.