Active Duty for Training

Active Duty for Training

The case of Kevin T. Donnellan v. Eric K. Shinseki, Opinion Number 07-2041, decided November 17, 2010, concerns several issues regarding veteran status as well as compliance with a JMR.

The veteran served in the Army National Guard from 1969 through 2000. In 1996 he was diagnosed with colon cancer and underwent surgery. He underwent surgery again in March 1998 for polyps on his colon. Later, the doctors discovered a small bowel fistula which was treated conservatively. Next, he went on active duty for training from May 30, 1998 until June 5, 1998. During this time, he was hospitalized for fever, chills, and abdominal pain. An emergency laparotomy was performed and revealed a small bowel perforation.

The veteran was initially denied service connection by the RO but the BVA remanded and ordered the RO to obtain a medical opinion as to whether the post colectomy underwent a permanent increase in severity beyond its natural progression during training. Initially, a 1998 physician statement stated the bowel perforation was not a predictable outcome of his original surgery and was exceedingly rare. A 2005 VA statement found no relationship between the preexisting condition and service and the in-service development of fistulas resulted from complications of the pre-service colon cancer surgery. The VA also sought an independent medical examination. The statement stated the physician was somewhat confused by the question but indicated the active duty for training did not cause the fistula disease and he could have had a set back during training that would have reopened the fistula.

The Court first found the presumption of aggravation did not apply because it did not apply to claims based on a period of active duty for training. Still, an active duty for training claimant could show aggravation if he showed (1) an increase in disability as to a preexisting injury or disease and (2) such an increase in disability was beyond the natural progress of that injury or disease.

Next, the Court considered the burden of proof with regard to an active duty for training claimant and found the claimant should bear the burden of showing the preexisting disability worsened during service and that such worsening was beyond the natural progression of the disease.

Thirdly, the Court considered the standard of proof and found the benefit of the doubt rule still applies to active duty for training claimants, meaning if the claimant shows an approximate balancing of positive and negative evidence, he is entitled to the benefit of the doubt.

Finally, the Court considered the 2004 BVA remand of the case and found the medical opinion obtained by the VA was insufficient. The opinion did not specifically address the questions asked and instead noted confusion about the questions to be answered. Thus, the Court found a Stegall violation. See Stegall v. West, 11 Vet. App. 268 (1998) (when remand orders are not complied with, the Board itself errors in failing to ensure compliance).

This opinion provides a valuable source to assess active duty for training claims and reaffirms the benefit of the doubt rule.

Decision by Judge Greene, Moorman, and Schoelen.