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Court of Appeals for Veterans Claims Brief: BVA Denial of Servie Connection (Brief 1, p 11)

Disabilities: Stomach Disorder, metatarsalgia of the right foot, and Bilateral foot and leg disorder

Court of Appeals for Veterans Claims Brief: BVA Denial

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In this case the Board erred in their analysis of the veteran's impairments and erred in their analysis of whether they were incurred during active duty by not considering whether they were incurred during a period of active duty for training. In Dunlap the RO determined that the veteran's condition must have "preceded his training." Here the Board provides no analysis of whether the veteran's impairments could have occurred during or been aggravated in a period of active duty for training. This is legal error, requiring that the claims be remanded for proper consideration.

Particularly of note is the statement by the BVA in its Decision that "any current stomach disorder is not related to the veteran's several months of active service (emphasis added). However, as noted previously in this Brief, there is evidence of record that the veteran reported for active duty for training several times after 1980: on February 1, 1990 he was ordered to duty for 15 days (R. 1155); on August 31, 1990 he was ordered to report for a period of active duty for 5 days beginning September 10, 1990. At about that time on September 13, 1990 he was confined to 3 days bed rest (R. 1061), and on October 1, 1990 a sick certificate was completed stating that he needed to be off active duty due to bed rest for neck/back pain (R. 1062). On October 25, 1990, William C. McGee, Jr., Personnel Actions Sergeant, completed a form stating that the veteran had missed scheduled drill assemblies for the months of September and October 1990) (R. 1086). In 1990 the veteran had unexcused absences from training on Nov. 3-4, 1990; on Dec. 1-2, 1990; and on Jan. 12-13, 1991 (R. 1126).

It appears from the Record that the Board never analyzed whether the veteran's impairments, including stomach disorders and bilateral foot and leg disorders, were incurred or aggravated during periods of active duty for training. This legal error requires that the Decision by the BVA be set aside and the claims sent back for further consideration.

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