Citation Nr: 1321008 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 02-15 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a cervical spine disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The appellant was a member of the Army National Guard of Alabama from February 1980 to April 2005. He served on active duty with the U.S. Army from September 1990 to April or May 1991, to include service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied the appellant's claim for service connection for a cervical spine disability. The Board remanded this matter for additional development in October 2004, December 2006, December 2009, September 2011, and September 2012. On each occasion, the agency of original jurisdiction (AOJ) confirmed and continued the prior denial. The case is again presented for appellate consideration. FINDINGS OF FACT 1. The appellant has a current disability of the cervical spine, diagnosed as degenerative spondylosis. 2. It is at least as likely as not that the appellant's current disability of the cervical spine can be medically attributed to a motor vehicle accident in which he was involved on November 1, 1987. 3. At the time of the motor vehicle accident in November 1987, the appellant was returning directly from an authorized period of active duty for training (ACDUTRA). CONCLUSION OF LAW Resolving reasonable doubt in the appellant's favor, the criteria for establishing service connection for a cervical spine disability, diagnosed as degenerative spondylosis, have been satisfied. 38 U.S.C.A. §§ 101, 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks to establish service connection for disability of the cervical spine as due to a motor vehicle accident that occurred on November 1, 1987, whereby a truck in which he was a passenger ran off the roadway and flipped over onto its roof. He says that the accident occurred while he was returning from a period of authorized duty in Ecuador with the Army National Guard. Under the law, service connection can be established for disability due to disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA. 38 U.S.C.A. §§ 101(2), (22), (24), 1110, 1131 (West 2002); 38 C.F.R. §§ 3.1(d), 3.6(a), (c), 3.303 (2012); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Service connection can also be established for disability due to injury, but not disease, incurred or aggravated in the line of duty during a period of inactive duty training (INACDUTRA), or from an acute myocardial infarction, cardiac arrest, or cerebrovascular accident which occurred during INACDUTRA. 38 U.S.C.A. § 101(2), (23), (24) (West 2002); 38 C.F.R. §§ 3.1(d), 3.6(a), (d) (2012). "Active duty for training" is defined, in part, as full-time duty in the Armed Forces performed by Reserves for training purposes, or full-time duty performed by members of the National Guard of any State under 38 U.S.C.A. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2012). The term "inactive duty training" is defined as duty (other than full-time duty) performed by a member of the National Guard of any State under 38 U.S.C.A. §§ 316, 502, 503, 504, or 505, or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d)(4) (2012). If an individual authorized or required by competent authority to perform ACDUTRA or INACDUTRA assumes an obligation to perform such duty, and is disabled by an injury incurred while proceeding directly to or returning directly from such duty, he or she shall be deemed to have been on ACDUTRA or INACDUTRA at the time of the injury, as the case may be. 38 C.F.R. § 3.6(e) (2012). In making the determination as to whether the injury was incurred while proceeding directly to, or returning directly from, duty, VA will take into consideration the hour on which the individual began to proceed or return; the hour on which the individual was scheduled to arrive for, or on which the individual ceased to perform, such duty; the method of travel performed; the itinerary; the manner in which the travel was performed; and the immediate cause of disability. Id. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In the present case, there is no dispute that the appellant has a current disability of the cervical spine. On VA brain and spinal cord examination in January 2010, following an examination of the appellant, and after obtaining X-rays of the cervical spine, the examiner recorded a diagnostic assessment of degenerative spondylosis. Magnetic resonance imaging in May 2011 confirmed the presence of degenerative changes in the cervical spine at multiple levels, with spinal canal and neural foraminal stenosis. Nor is there any significant dispute that the appellant was involved in a motor vehicle accident on November 1, 1987, or that the current disability of his cervical spine can be medically attributed to such accident. Both the appellant and the driver of the vehicle have offered statements describing the incident, and the claims file contains a police report, dated November 1, 1987, which is fully consistent with those descriptions, including the fact that the vehicle flipped over onto its roof. In addition, the January 2010 VA examiner opined that it was at least as likely as not that the spondylosis of the appellant's cervical spine was related to the 1987 motor vehicle accident. That opinion is uncontroverted. The real question here is whether the appellant was serving on ACDUTRA or INACDUTRA at the time of the motor vehicle accident, so as to allow for an award of service connection. Based on the available evidence, the Board finds that he was. The evidence does not contain copies of official orders pertaining to a period of ACDUTRA or INACDUTRA inclusive of November 1, 1987. Nevertheless, the appellant's service personnel records clearly show that he had a recognized period of overseas service in Ecuador from October 16, 1987 to November 1, 1987. The claims file also contains a Retirement Credits Record, prepared by the Army National Guard, which shows that he earned 17 points toward retirement based on a period of "active duty, active duty training, or full time training duty" during the same period (October 16 to November 1, 1987). Accordingly, and in light of the duration of the appellant's duty (17 days), it is the Board's conclusion that his service during that period was in the nature of authorized ACDUTRA. As to the further question of whether the motor vehicle accident occurred while the appellant was "returning directly" from his period of duty, the Board finds that the evidence also supports that proposition. The appellant and the driver of the vehicle have both indicated that their official duties concluded after midnight. They and two other service members rode together in the driver's truck, proceeding directly to the appellant's hometown. After making one stop, to drop off one of the service members, the driver proceeded to the appellant's home and had the accident en route, at approximately 4 a.m. Under the circumstances as described, the Board is persuaded that the accident occurred while "returning directly" from duty. The evidence, at minimum, gives rise to a reasonable doubt on the question. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). As such, the requirements for establishing service connection have been satisfied, and the appeal is granted. Because the Board is granting this claim, there is no need to engage in any analysis with respect to whether the requirements of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)), have been satisfied with respect to the question of service connection. That matter is moot. ORDER Service connection for a cervical spine disability, diagnosed as degenerative spondylosis, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs