Hill: ACDUTRA and Aggravation, and Medical Treatises and Self-Medicating

Hill v. McDonald, Case Number 2014-1811, decided October 7, 2016 is a decision involving a veteran who was struck by lightning during a period of active duty for training (ACDUTRA).

The veteran was granted veteran status by the VA for his right knee, which was injured in the lightning strike, but also sought service connection for his back and for PTSD. 

The initial question was the veteran’s veteran status for these different disabilities, which was based on the same period of ACDUTRA.  The Court held: “[O]nce 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 second question was how the presumption of aggravation and the requirement for an entrance examination applied to an ACDUTRA.  The Court concluded: “an entrance examination is not required for a claimant in the appellant’s circumstances to receive the presumption of aggravation for a claim on a period of ACDUTRA.  Instead, a claimant need only submit evidence that helps establish that ‘there was an increase in disability during such service.’  If a claimant submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of ACDUTRA and a permanent increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation.”

Third, the Court specifically dealt with the question of whether new and material evidence was submitted regarding the veteran’s back condition.  Importantly, the veteran has submitted medical treatise materials on lightning strikes and “one of the articles address the missing element of nexus in that it states a lightning strike might affect the musculoskeletal system, including contusions, fractures, and muscle and ligament tears.  The article on its face is material to whether the lightning strike could have worsened the appellant’s preexisting back condition.  Accordingly, the Court concludes the Board’s determination that the appellant failed to submit new and material evidence is clearly erroneous.”

Fourth, the Court dealt with the question of the veteran’s claimed psychiatric disability and found the C&P examination to be incomplete.  The C&P noted the appellant started drinking alcohol more heavily after the lightning strike and listed it as a factor aggravating the veteran’s mental condition which showed the lightning strike was not a cause of the aggravated condition.  However, the Court seemed to question why the examiner did not use this post-lightning strike drinking as proof that the lightning strike did not cause the aggravation (i.e., the veteran turned to drinking to self-medicate).

Overall, this is an important decision that clarifies questions concerning ACDUTRA and also gives an example of the power of a medical treatise and helps show that alcohol use might be a symptom of a stressful occurrence.

Decision written by Judge Greenberg and joined in by C.J. Hagel and Schoelen.