Citation Nr: 1317908 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 09-07 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for residuals of a neck injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Army from March 1997 to January 2003, to include subsequent periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Pennsylvania Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The claim is currently under the jurisdiction of the RO in Indianapolis, Indiana, from which the appeal arises. The claim has been before the Board on a previous occasion, and in March 2013, the claim was dispatched for an expert opinion from the Veterans Health Administration (VHA). All requested actions have been accomplished, and the claim is ripe for appellate review. The entire claims folder, to include the portion contained in the electronic "Virtual VA" system was reviewed in this case. FINDING OF FACT The Veteran experienced a traumatic injury to the neck in February 2007 while not in an ACDUTRA or INACDUTRA status; the stresses associated with a physically demanding Army training course, in an ACDUTRA period following this accident, together with other non-service factors, aggravated the residuals of the injury beyond the natural course of the disease process CONCLUSION OF LAW The criteria for service connection for residuals of a neck injury have been met. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. (2012). REASONS AND BASES FOR FINDING AND CONCLUSION A "Veteran" is a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(2), (24); 38 C.F.R. § 3.6(a). A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of his or her entrance into service, or where clear and unmistakable evidence (obvious or manifest) demonstrates that an injury or disease existed prior thereto. 38 U.S.C.A. §§ 1110, 1132 (West 1991); 38 C.F.R. § 3.304(b) (1998). It is significant to note that the presumption of soundness does not apply to a claimant who had only active duty for training and who is not otherwise a Veteran (for example, by reason of having a service connected disability). Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In this case, while the Veteran had active duty so as to qualify for Veteran status independent of her ACDUTRA service, she is seeking service connection based solely on events stemming from her participation in an ACDUTRA event. That is to say, for the claimed injury aggravation, which was several years subsequent to her discharge from active duty, there is no additional way for the Veteran to obtain Veteran status save for having a service-connected disability (which, as noted below, is only granted via this decision). Thus, for purposes of her contentions, the presumption of soundness does not apply. Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in line of duty, or for aggravation beyond the natural progression of a preexisting injury or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R §§ 3.303, 3.306. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Veteran in this case contends that she is entitled to service connection for neck injury residuals. Essentially, she states that she experienced a motor vehicle accident in February 2007, and then, while on ACDUTRA status with the Pennsylvania Army National Guard in March/April 2007, aggravated residuals of a neck injury beyond the natural course of the disease process. The record is clear in establishing that the Veteran had a motor vehicle accident in February 2007 while not in any type of military status. During the same year, and subsequent to the accident, the Veteran was selected for the U.S. Army's Warrior Leadership Course (WLC), which is a two-week program for those soldiers soon to be promoted to noncommissioned officer rank. Service personnel records indicate that the Veteran completed this course in an ACDUTRA period between March and April 2007. It is a program that is not specific to any military occupational specialty (MOS), and involves strenuous physical exertion in the testing of soldierly skills. Regarding current diagnoses, the Board notes that the Veteran has been assessed as having posttraumatic cervical strain with associated myofascitis and intersegmental dysfunction. Private medical reports link the associated pain directly to the February 2007 motor vehicle accident. The Veteran faced a medical evaluation board in 2008 which, ultimately, led to her 2012 release from National Guard service as due to her inability to perform her duties. The Board, in noting that the Veteran has numerous musculoskeletal complaints following the February 2007 accident, remanded the claim to the Veterans Health Administration (VHA) for an expert orthopedist opinion. Essentially, the Board had noted numerous motor vehicle accidents following the February 2007 incident, to include documented traumas occurring in 2008, 2009, and 2010. While, as noted, the Veteran did have the WLC ACDUTRA period after February 2007 accident, it was not apparent as to if a current neck disorder was aggravated by that event or, alternatively, by the non-service car accidents. The returned VHA orthopedist's opinion, dated in April 2013, while somewhat confusing in its language, is helpful in resolving the appeal. Based on a review of the evidence, the physician confirmed that the February 2007 accident, which was not in a period of ACDUTRA or INACDUTRA, was the "initial accident" from which the current residual disability arises. With regard to whether participation in the WLC ACDUTRA activity aggravated the residuals beyond the course of the natural disease progress, the doctor stated that "one can safely say that the 2007 accident[,] after the WCL (sic) training[,] was an aggravation." (emphasis added). While this language usage is somewhat confusing due to the fact that the WLC activity clearly was subsequent to the 2007 accident, based on the next sentence used by the orthopedist, it is clear that such a sequence of events was understood by the orthopedist. Indeed, the physician went on to state that "you cannot reasonably say that this was the sole contributing reason for her continued neck pain" (emphasis added). In reiteration, he stated "there is no way after reviewing the medical records that one can deduce that...WCL (sic) training was the sole contributor of pain in the neck." It is noted that this physician found the 2008, 2009, and 2010 accidents to be significant, and in his view, also to be causes of aggravation; however, the training, while not the sole aggravating factor, was specifically found to also be a source of aggravation. While not in the clearest language, it is clear that the VHA orthopedist is stating that the Veteran's participation in the WLC was a strenuous activity following her initial accident, and that while that it was not the sole contributor to her continued pain in the neck (given subsequent traumas), it was a traumatic aggravation to the initial 2007 injury. This opinion is positive, contains a supporting rationale, and fully considers the Veteran's contentions. It is supportive of the Veteran's claim and, as it is uncontroverted and consistent with the Veteran's service and post-service history, is very probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Essentially, given this opinion, the Board can conclude that a February 2007 accident occurred before an ACDUTRA period, and that following this, the Veteran was fit enough to report to ACDUTRA and attend WLC in March 2007. The strenuous activities of the WLC, in addition to several post-ACDUTRA accidents, worsened the Veteran's neck disability beyond the natural course of the disease process. The WLC training, while in itself not the sole contributor to the current symptoms present in the neck, did play an aggravating role, and thus, the requirements for service connection have been met. The nature and extent of the service connected neck disability caused by the March 2007 aggravation is not before the Board at the time. In evaluation of this issue, consideration must given to the multiple neck injuries that have no connection to service or WLC in March 2007. ORDER Entitlement to service connection for residuals of a neck injury based on aggravation is granted. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs