ACDUTRA & AGGRAVATION

Hill v. McDonald, docket no. 14-1811 (Oct. 7, 2016)

HELD: Once a claimant has established “veteran” status for a disability incurred or aggravated during a period of ACDUTRA, that status applies to all other disabilities claimed to have been incurred or aggravated during that period – and the veteran is entitled to the presumption of aggravation for those claims, even if there is no entrance examination of record. 

SUMMARY: Mr. Hill had several periods of Reserve and National Guard duty from 1980 to 2002. He also had one period of active duty for training (ACDUTRA) from June 7 to 21, 1997. His service medical records (SMRs) and private records show psychiatric treatment prior to June 1997, and private records also show treatment for a back condition related to a 1994 work injury.

During his 1997 period of ACDUTRA, Mr. Hill’s unit was performing field exercises, when a tree he was standing next to was struck by lightning. He fell and sought medical treatment for knee and back pain. The National Guard investigation report of the lightning strike classified his knee injury as incurred in the line of duty, and his back pain as “in line of duty-[existed prior to service]-aggravation.” The investigator stated that “the force of being thrown to the ground may have aggravated [his back] condition.” The record contains evidence of Mr. Hill’s subsequent reports that his physical and psychiatric symptoms worsened after the lightning strike.

In 2002, he filed a claim for service-connected disability benefits for his back, knee, and memory loss. The Regional Office (RO) granted service connection for the right knee, but denied his back and memory loss claims. He did not appeal that decision and it became final.

In 2008, he attempted to reopen his claims for a back condition and memory loss with PTSD. The RO denied the PTSD claim and determined that new and material evidence had not been submitted to reopen the back claim. Mr. Hill appealed this decision, and submitted internet articles about the effects of lightning strikes. The RO issued a Statement of the Case, continuing to deny the PTSD claim and reaffirming that new and material evidence had not been submitted to reopen his back claim. Mr. Hill perfected his appeal with a VA Form 9 and requested a hearing. He testified that he had been thrown 25 feet as a result of the lightning strike and hurt his knee and back.

In April 2014, the Board determined that veteran status during his period of ACDUTRA had been established for these claims because of his service-connected knee disability. However, the Board determined that new and material evidence had not been submitted to reopen his back claim, rejecting his hearing testimony as “patently incredible.” The Board denied service connection for the psychiatric claim based on a 2010 C&P opinion.

On appeal, the Court addressed the issues of (1) whether the establishment of veteran status during a period of ACDUTRA for one condition extends to other conditions incurred during that period; (2) whether, once veteran status for a period of ACDUTRA is established, the veteran is entitled to the presumption of aggravation with respect to any additional pre-existing conditions; and (3) whether the presumption of aggravation requires an enlistment examination to determine the pre-service severity of a pre-existing condition claimed to have been aggravated during a period of ACDUTRA.

The Court first addressed the issue of “veteran status” and determined, based on the plain language of the relevant statutes, that “once an individual establishes that any disability was incurred during a period of ACDUTRA, he has established that the particular period of ACDUTRA constitutes ‘active, military, naval or air service.’” The Court thus held that “once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, that status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA.”

The Court further held that a veteran who has established veteran status for one condition during a period of ACDUTRA “is now a veteran for the purposes of all other claims based on that same period of ACDUTRA” and is thus entitled to the presumption of aggravation for different, pre-existing conditions that worsened during that period.

With respect to the enlistment examination requirement, the Court first noted that in order to benefit from the presumption of aggravation, the evidence must first show that a condition was “noted” on the veteran’s enlistment examination. The Secretary conceded in this case that ACDUTRA veterans are generally not provided with the same routine examinations as regular military personnel are – and that the record will likely not contain an enlistment examination noting a pre-existing condition for these veterans. To answer the question of whether the presumption of aggravation requires an enlistment examination, the Court again looked to the statutory language, specifically 38 U.S.C. §§ 1111 and 1153.

The Court found that section 1153 “makes no reference whatsoever to an examination,” but that section 1111, the presumption of soundness statute, “makes explicit reference to an entrance examination.” In light of this, the Court determined that the statutory language was ambiguous. The Court then looked to VA’s implementing regulation, 38 C.F.R. § 3.306(a), but found that this “merely parrots section 1153” and that the Secretary’s interpretation was thus not due any deference. The Court concluded that, for the claimant who is already service connected for one condition incurred during a period of ACDUTRA and is attempting to establish service connection for a different, preexisting condition based on that same period, “no entrance examination is necessary where there is contemporaneous evidence of the baseline severity of the preexisting condition.” In other words, as long as the claimant submits evidence showing the severity of the pre-existing condition prior to the aggravation event during the period ofACDUTRA, as well as evidence of a permanent increase in disability during the period of ACDUTRA, that claimant can benefit from the statutory presumption of aggravation – even though there is no enlistment examination of record.

With respect to Mr. Hill’s back claim, the Court determined that the Board clearly erred in determining that his submissions and testimony were not new and material. Specifically, the Court found that one of the internet articles stated that a lightning strike might affect the musculoskeletal system – and that this article was “material to whether the lightning strike could have worsened the appellant’s preexisting back condition.” The Court also determined that the Board clearly erred in determining that Mr. Hill’s hearing testimony was “patently incredible,” finding that “the Board engaged in improper, pre-reopening weighing of the evidence, which is prohibited.” To support this, the Court cited Justus v. Principi, 3 Vet.App. 510, 513 (1992) (holding that, for purposes of reopening, “VA is required to presume the credibility of newly submitted evidence”). The Court directed the Board to reopen this issue on remand.

With respect to the psychiatric claim, the Court found that the Board provided an inadequate statement of reasons or bases for its reliance on a C&P examination as negative evidence – when that report appeared to include favorable findings. The Court directed the Board to obtain clarification or a new medical opinion for the psychiatric claim on remand.

FULL DECISION