Citation Nr: 1320802 Decision Date: 06/27/13 Archive Date: 07/05/13 DOCKET NO. 05-23 006 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to service connection for aggravation of a lumbar spine disability by an injury or disease incurred in the line of duty during active duty for training (ACDUTRA). REPRESENTATION Appellant is represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Cramp, Counsel INTRODUCTION The appellant had active military service from May 1979 to September 1992, with additional service in the Army Reserves, including a period of ACDUTRA during which he incurred an injury to his back. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2012 Order of the United States Court of Appeals for Veterans Claims (CAVC). The appeal originates from an October 2004 rating decision of the RO in Montgomery, Alabama. The appellant testified before a VA Decision Review Officer (DRO) at a July 2005 hearing. A transcript of the hearing is of record. In an April 2012 decision, the Board denied service connection for a lumbar spine disability. The appellant appealed that decision to the CAVC. In an Order dated in December 2012, pursuant to a Joint Motion for Remand, the CAVC vacated the Board's April 2012 decision in part, and remanded the claim as set out above to the Board for development consistent with the Joint Motion. In essence, the appellant abandoned before the CAVC any argument regarding direct service connection and limited his appeal to the specific matter of aggravation of a lumbar spine disability by ACDUTRA. In reviewing this case the Board has not only reviewed the appellant's physical claims file, but also his file on the "Virtual VA" system to insure a total review of the evidence. In March 2013, subsequent to the most recent Supplemental Statement of the Case, the appellant submitted additional medical evidence along with a waiver of his right to have that evidence considered initially by the RO. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the appeal has been accomplished. 2. The appellant had a chronic lumbar spine disability prior to his February 2000 period of ACDUTRA, during which, he sustained an injury resulting in back pain. 3. The appellant's chronic lumbar spine disability was not worsened beyond the natural progress of the disability by an injury or disease incurred in the line of duty during a period of ACDUTRA. CONCLUSION OF LAW A low back disorder was not aggravated by a period of ACDUTRA. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the appellant received notification prior to the initial unfavorable agency decision in October 2004. The RO's March 2004 and September 2009 notice letters advised the appellant what information and evidence was needed to substantiate his claim for service connection and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the appellant. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letter advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the appellant was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the CAVC issued a decision in Dingess, 19 Vet. App. 473, which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. A March 2006 VCAA letter provided such notice, and the claim was subsequently readjudicated. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Active service treatment records are associated with claims file. The Board acknowledges some records related to the appellant's service with the Army Reserves have not been located. In this regard, the Board observes the appellant reported having served a period of ACDUTRA with the 81st Regional Support Command (RSC). A September 2009 Line of Duty request resulted in no records being found. Furthermore, in May 2010, VA requested personnel and treatment records related to such service. However, in a June 2010 response, the 81st RSC responded that there is no record of the appellant having served with that unit. VA then contacted the appellant to inform him of the inability to obtain these records. See September 2010 Report of Contact. The appellant informed VA that he has submitted all evidence in his possession and requested VA to proceed with adjudication of his appeal. Thus, there would appear to be no basis for further attempts at obtaining these records. Nevertheless, the Board acknowledges that when a portion of a Veteran's service treatment records are unavailable through no fault of his own, VA's duties to assist, to provide reasons and bases for its findings and conclusions, and to consider carefully the benefit-of-the-doubt rule are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). All available post-service Social Security Administration (SSA), private and VA treatment records and reports have also been obtained. The appellant has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist in locating additional records has been satisfied. The appellant was afforded a VA examination in April 2011. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The Board finds the April 2011 VA examination is adequate for the purpose of determining service connection, as it involved a review of the appellant's pertinent medical history and provides an etiological opinion with supporting rationale. See generally Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). As a final note, the Board again observes the case was remanded in April 2010 for additional development. Specifically, the Board ordered that records of the appellant's periods of Reserves duty as well as SSA disability records should be obtained, and a VA medical opinion should be obtained. As discussed above, SSA records have been obtained and associated with the claims file, and multiple attempts at obtaining the appellant's Reserves records have proven futile. Finally, the appellant was provided a VA examination in April 2011, which the Board has found to be adequate for determining service connection. As such, there has been substantial compliance with the Board's prior remand, and adjudication of the instant case may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; notwithstanding VA's heightened duty to assist in this case, the Board finds that no further assistance to the appellant in developing the facts pertinent to the issue on appeal is necessary. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Analysis Generally, in order to qualify for VA benefits, a claimant must be a veteran. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006) (status as a "veteran" is one of the five elements of a claim for service-connection benefits). One of the benefits administered by VA that is reserved specifically for veterans is disability compensation. Accordingly, in order to establish his entitlement to disability compensation benefits, he or she must first establish "veteran" status. The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "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 line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). The term INACDUTRA is defined, in part, as duty, other than full- time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA (or INACDUTRA), without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for the period of USAR service, it must first be established that the appellant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. The Board finds that the weight of the evidence demonstrates that the appellant did not become disabled due to disease or injury incurred in the line of duty during any period of ACDUTRA or INACDUTRA; therefore, veteran status does not attach to this period. The appellant asserts that service connection is warranted for aggravation of a lumbar spine disability based on his service with the Army Reserves. In this regard, the appellant asserts that he had initial incurrence of a lumbar spine disability in 1998, but that he suffered a back injury after falling out of a truck during a period of ACDUTRA in February 2000, which aggravated the disability. Pertinent to any discussion of aggravation is the presumption of soundness. Every veteran shall be taken 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 examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease (1) existed before acceptance and enrollment and (2) was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Only conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). For veterans who have achieved "veteran" status through a prior period of duty and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies, but only when the veteran has been "examined, accepted, and enrolled" for the period of ACDUTRA, and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). Here, the appellant was not specifically examined at entry into USAR service, or the report of such examination is not available. Accordingly, the appellant is not presumed to have been in sound condition upon entry into USAR service. Paulson v. Brown, 7 Vet. App. 466, 471 (1995) (holding that the presumption of soundness is not applicable when determining veteran status). Nevertheless, the appellant's assertions and the clinical evidence are in agreement that the onset of the appellant's back injury was in 1998. In correspondence in December 2011, the appellant reported "I do not dispute that the onset of chronic back pain was in 1998." In this regard, a January 2007 private examination notes that the appellant reported a history of lower back pain, beginning in 1998, which is "chronic and unremitting." See also Western Health Care treatment records dated January 2000 to October 2001. Therefore, the Board finds the appellant suffered a preexisting chronic lumbar spine disability prior to his February 2000 period of ACDUTRA. The appellant asserts that he suffered from a back injury after falling from a truck in February 2000 during a period of service in the Army Reserves. A February 2000 record from the Winn Army Community Hospital notes the appellant complained of a one-week history of low back pain radiating to the left leg without history of back injury. It was noted that he slipped when getting off a truck. A diagnosis of low back pain was rendered. Western Health Care treatment records dated April and July 2000, immediately following the appellant's period of ACDUTRA, note continued chronic low back pain without diagnosis of additional disability. Regarding the appellant's assertion that the effect of the February 2000 injury contributed to and worsened his lumbar spine disability, the Board notes that the presumption of aggravation is not applicable where, as here, the claimant has achieved "veteran" status during a prior period of service. Smith v. Shinseki, 24 Vet. App. 40, 48 (2010). Because the "active military, naval, or air service" that, under 38 U.S.C.A. § 1153, is a prerequisite for benefits based on a theory of aggravation, the Court has held that the term "aggravated" as it is used in section 101(24)(B) means that in order for a claimant to have active service that qualifies him to be a "veteran," the evidence must establish that during his period of active duty for training, he experienced an increase in disability and that such increase was beyond the natural progress of that disease or injury. Donnellan v. Shinseki, 676 F.3d 1089 (2012). Just establishing that a disability worsened during service is not enough, since the presumption of aggravation does not apply where a claim is based on a period of ACDUTRA or INACDUTRA. See Smith, 24 Vet. App. at 48 n.7. As the presumption of aggravation does not apply, the appellant has the burden to establish both elements of aggravation (worsening of the disability and that such worsening was beyond the natural progression of the disease). See Donnellan, supra. Here, he has not met that burden. In this regard, the Board again observes no disability other than low back pain was diagnosed either during the February 2000 treatment or immediately thereafter. The record contains conflicting opinions regarding whether the appellant's degenerative disc disease of the lumbar spine is related to his period of ACDUTRA. In deciding whether the appellant's lumbar spine disability was aggravated during his period of ACDUTRA, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). The appellant submitted a July 2006 statement from Dr. D.J. indicating the appellant stated to him that his current low back pain is relative to an injury he sustained while getting out of a truck while on guard duty. There is no indication Dr. D.J. considered or had access to, records related to the appellant's documented preexisting low back pain prior to the February 2000 period of ACDUTRA. To this extent, it appears that Dr. D.J.'s opinion is based on an inaccurate factual predicate. This finding is supported by other dictations of Dr. D.J. In a September 2003 visit, Dr. D.J. recorded the appellant's account of having slipped while boarding a truck and "[s]ince then he has had persistent pain in his lower back and left leg." There is, again, no reference to the acknowledged prior injury. The appellant subsequently submitted an October 2012 opinion from the same private physician. Dr. D.J. noted that the appellant had been treated for spinal stenosis and related an injury to the appellant's back in about 2000, when he fell off of a truck, and has had continued ongoing problems since then. Dr. D.J. opined "I think that maybe the injury that he had back in 2000 when he fell off the truck could have been the initiation of exacerbation of his disc derangement." D.H.J. continued, "I think the initiation of his first fall could have been the onset of the symptoms that led to his present back situation and probably related on more than a likely basis than not." While Dr. D.J. has provided a nominally positive nexus opinion, his opinion is peppered with inconclusive terminology ("maybe," "could have") which greatly reduces the probative value of the opinion. More significantly, Dr. D.J. included the notation "[n]one prior to his back before 2000" indicating his belief that the appellant had no back symptoms prior to the 2000 ACDUTRA injury. This is in direct conflict with the facts as stipulated in the Joint Motion ("I do not dispute that the onset of chronic back pain was in 1998") and the evidence. The appellant was provided a VA examination in April 2011. Following an extensive review of the claims file, the VA physician noted that the appellant's chronic low back pain began in 1998, prior to his period of ACDUTRA. Furthermore, the VA examiner opined that it is less likely that the appellant's lumbar spine disability is related to this period of ACDUTRA, as data shows the appellant's back pain progressed from 1998 onward and became a chronic condition. Further, the VA examiner noted that the appellant had a very physical job following active service which led to several documented injuries and, therefore, this post-service employment is the most reasonable etiology of his current low back condition. The Board finds the statements provided by Dr. D.J. are less persuasive than that of the VA examiner. The opinions of Dr. D.J. are largely framed in inconclusive terminology. Medical evidence which merely indicates that the particular disorder "may or may not" exist or "may or may not" be related, is too speculative in nature to establish the presence of said disorder or the relationship thereto. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). More significantly, each statement of Dr. D.J. is based on an inaccurate factual predicate that the appellant's initial injury was in 2000. There is no indication that Dr. D.J. knew of the prior injury. Indeed, his notation "[n]one prior to his back before 2000" directly indicates that he was unaware of the prior injury. In contrast, the VA examiner's opinion was accompanied by a review of the claims file, including private and service treatment records. It is not that claims file review, in itself, makes this opinion more persuasive, but the fact that claims file review within the circumstances of this case gave the examiner an accurate medical history upon which to provide an opinion - unlike the private physician. As such, the Board assigns greater probative weight to the April 2011 VA examination report. Thus, the only medical opinion that is based on a complete understanding of the evidence is against aggravation. The basis for the Joint Motion in this case was that the Board did not adequately address whether the appellant's lay testimony was adequate to establish aggravation. While lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), and a lay person may be competent to describe a worsening of a musculoskeletal disorder over a period of time, establishing whether such worsening is beyond the natural progress of the disease or disorder falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Establishing the natural progress of a disorder such as degenerative disc disease requires an understanding of the anatomical features involved, the nature of subsequent injury, and the expected post-injury healing, as well as the difference between normally expected wear of the affected parts and additional wear resulting from subsequent injury. In light of medical nature of the question involved, the appellant's assertions regarding increased symptoms following the ACDUTRA injury are not competent evidence of actual permanent worsening that is beyond the natural progress of the disease. In sum, the Board finds the preponderance of the evidence demonstrates that the appellant's current lumbar spine disorder, diagnosed as degenerative disc disease, is not a result of disease or injury incurred or aggravated while performing ACDUTRA. In this regard, while the appellant did suffer low back pain in February 2000, the evidence is clear, and the appellant has conceded, that he suffered a preexisting lumbar spine disorder. Finally, the weight of the evidence is against any permanent increase in severity of the preexisting lumbar spine disorder beyond its natural progress during a period of ACDUTRA. In light of the foregoing, the Board concludes that the criteria for service connection for aggravation of a lumbar spine disability are not met. In reaching the above findings and conclusion, the Board has considered the benefit of the doubt doctrine; notwithstanding VA's heightened duty to consider carefully the benefit-of-the-doubt rule, the Board finds that the preponderance of the evidence is against the claim. Therefore, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for aggravation of a lumbar spine disability is denied. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs