Citation Nr: 1327697 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 11-22 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a chronic back disability, to include degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) in the Minnesota Army National Guard from September 1994 to October 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the St. Paul, Minnesota, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the appellant's claim of entitlement to service connection for a chronic back disability, to include DDD of the lumbar spine. At this juncture, the Board notes that 38 U.S.C. § 101(2) defines the term "veteran" as meaning a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C. § 101(24) defines the term "active military, naval, or air service" as including (A) active duty; (B) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (C) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died - (i) from an injury incurred or aggravated in the line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. Presently, the claimant is not service connected for any disabilities. As he only served on ACDUTRA from September 1994 to October 1994, he is therefore not a "veteran" within the meaning of the law. See 38 U.S.C.A. § 101(2), (24) (West 2002). Until such time that he is awarded service connection for a disability, he will be referred to in this decision as the "claimant" or the "appellant." FINDINGS OF FACT 1. The claimant's only creditable military service is his period of ACDUTRA in the Minnesota Army National Guard from September 1994 to October 1994. 2. The clinical evidence demonstrates that the claimant's low back complaints noted during ACDUTRA were residuals of a back injury sustained in a motor vehicle accident that occurred prior to ACDUTRA; these pre-existing residuals of a back injury were not permanently worsened beyond their natural progression by ACDUTRA. CONCLUSIONS OF LAW 1. The claimant is not a veteran within the meaning of the law and his ACDUTRA service does not entitle him to any presumption of soundness upon his entry into ACDUTRA or presumption of aggravation. 38 U.S.C.A. §§ 101(2), (22)(A), (24), 1111, 1153 (West 2002); 38 C.F.R. § 3.306(b) (2012). 2. The claimant's residuals of a back injury noted during ACDUTRA pre-existed his entry into ACDUTRA and were not aggravated in the line of duty by ACDUTRA. 38 U.S.C.A. §§ 101(24), 1153 (West 2002); 38 C.F.R. § 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 and VA's duty to assist. The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The appellant's claim for service connection decided herein was filed in April 2010. A notice letter addressing the applicability of the VCAA to the claim and of VA's obligations to the appellant in developing the claim was dispatched in April 2010, which fully satisfied the above-described mandates. No timing of notice defect exists as fully compliant notice was sent prior the initial adjudication of the claim now on appeal before the Board by the agency of original jurisdiction in its rating decision of August 2010. VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the claimant of its duty to assist in obtaining records and supportive evidence. The claimant's service treatment records relating to his ACDUTRA in the Minnesota Army National Guard and his written statements in support of his claim have been obtained and associated with the evidence. The claimant has also been provided with the appropriate VA medical examination in July 2010 addressing the claimed disability at issue decided on the merits herein. The Board has also reviewed the claimant's claims file online, as it appears on the Virtual VA electronic database and VBMS, for any pertinent clinical records. The VA examination of July 2010 addressing the disability at issue was performed by a physician who reviewed the claimant's claims file and examined him in the context of his reported history. When considered with the other evidence of record contained in his claims file, the July 2010 examination is deemed to be adequate for purposes of adjudicating the VA compensation claim decided herein. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Thusly, in view of the foregoing discussion, the Board finds that VA has fulfilled its VCAA duties to notify and to assist the claimant in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required with respect to this issue. While the Board notes the appellant's implicit contention that the case should be remanded so as to obtain private medical records pertaining to his treatment for back injuries sustained in a motor vehicle accident prior to his ACDUTRA, the essential basis for this contention is that VA has an obligation to adequately develop the evidence in order to address the presumption of soundness at entry into service. However, as will be further discussed in the decision below, as the appellant is not a veteran within the meaning of the law, he is therefore not entitled to the presumption of soundness. VA therefore does not have the burden of establishing through the high evidentiary standard of clear and unmistakable evidence that a disability existed before acceptance and enrollment into service and was not aggravated by such service. See 38 U.S.C.A. § 1111 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011). A remand for evidentiary development to obtain these pre-ACDUTRA records is deemed to be unnecessary for adjudication of the claim. Furthermore, as will also be discussed in the decision below, the appellant's period of ACDUTRA does not entitle him to any presumption of aggravation of a pre-existing condition. The Board finds that the current state of the record is sufficient to adjudicate this appeal given the claimant's non-veteran status and the fact that the entirety of his service is a single period of ACDUTRA of only slightly more than one month's duration. The appellant has suffered no prejudice in this regard that would warrant a remand and his procedural rights have not been abridged as they pertain to the matter on appeal. Bernard v. Brown, 4 Vet. App. 384 (1993). Thus, the Board will proceed with the adjudication of this appeal regarding the claim for VA compensation for a chronic back disability. Entitlement to service connection for a chronic back disability, to include DDD of the lumbar spine. Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a). To establish direct service connection for a claimed disorder, there must be (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). In order to establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Under ordinary circumstances for veterans of active military wartime service or peacetime service on or after January 1, 1947, for purposes of 38 U.S.C.A. §§ 1110, 1131, and 1137, 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002). However, as previously discussed, the claimant in the present case is not a veteran within the meaning and plain language of § 1111 and, as such, he is not entitled to the presumption of soundness upon his entry into ACDUTRA in September 1994. Therefore, VA does not have the burden of rebutting such a presumption with the high evidentiary standard of clear and unmistakable evidence (as defined by the Federal Circuit Court of Appeals in Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) and Patrick v. Shinseki, 668 F.3d 1325, 1329 (Fed. Cir. 2011)) establishing both that (1) the condition existed prior to service and (2) the condition was not aggravated by service. [See also Smith v. Shinseki, 24 Vet. App. 40 (2010): although the claimant had "veteran" status from a prior period of active service, he was not entitled to the presumption of soundness for a later period of ACDUTRA service because he was not medically examined upon entry for ACDUTRA.] Ordinarily, a pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(a) (2012). However, as the appellant in the present claim has served only ACDUTRA, the Court in Smith v. Shinseki, 24 Vet. App. 40 (2010), has held that the above presumption of aggravation does not apply to claims for service connection based on a period of ACDUTRA. The Court reasoned that as "active military, naval or air service" is a prerequisite for benefits based on aggravation under 38 U.S.C.A. § 1153, and as 38 U.S.C.A. § 101(24) defines this phrase different for periods of ACDUTRA (requiring aggravation to occur in the line of duty), the presumption of aggravation cannot attach. The Federal Circuit Court of Appeals (Federal Circuit) has held that a corollary to the Secretary's definition of "disability" in 38 C.F.R. § 4.1 is that an increase in disability must consist of worsening of the enduring disability and not merely a temporary flare-up of symptoms associated with the condition causing the disability. Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). The Federal Circuit stated: "[e]vidence of a temporary flare-up, without more, does not satisfy the level of proof required of a . . . veteran to establish an increase in disability." Davis, 276 F.3d at 1345; see Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994) (The Federal Circuit held that 38 U.S.C.A. § 1153 requires some increase in the severity of the pre-existing condition causally related to military service). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306(b) (2012). As relevant, the medical evidence pertinent to the claimant's brief period of ACDUTRA in the Minnesota Army National Guard from September - October 1994 shows that prior to entry into ACDUTRA, two copies of a May 1993 Army Reserve enlistment examination (entitled Report of Medical Examination) shows that his spine and musculoskeletal system were clinically normal. One of the copies was updated on the back page, revealing the following: upon physical inspection on June 22, 1993, the appellant was status-post motor vehicle accident with symptoms of back pain and disqualified from service; and upon physical inspection on September 23, 1994, and September 29, 1994, the appellant was deemed to be medically qualified for service. A September 23, 1994 notation in the record shows that the claimant report being asymptomatic with respect to his back pain since December 1993. The records reflect that within a month after entering ACDUTRA, a medical board proceeding determined that the claimant was physically unfit for military service due to back pain that, according to the claimant's statements to the service medical board, was related to a supervening back injury that he sustained in a pre-ACDUTRA motor vehicle accident that occurred after the May 1993 physical inspection but before entering ACDUTRA. The medical board determined that the claimant had a back injury that pre-existed his entry into ACDUTRA and was not aggravated (which is to say, not permanently worsened beyond its natural progression) by ACDUTRA. The claimant was discharged from ACDUTRA in late October 1994 after having served for just a little more than one month in ACDUTRA. The claimant filed his claim for VA compensation for a chronic back disability in April 2010. Pursuant to his claim, he was examined by VA in July 2010. The report of this examination reflects that the claimant reiterated his account of having sustained a supervening back injury as a result of a motor vehicle accident that occurred after his May 1993 Army National Guard enlistment examination but before his entry into ACDUTRA in September 1994. The July 2010 VA examination report also shows that he reported a post-ACDUTRA back injury in approximately 2005 - 2006 while working as a nursing assistant, for which he received worker's compensation for a period of three weeks. The VA clinician who conducted the July 2010 examination presented a negative nexus opinion based on his review of the claimant's medical history, stating that the claimant had a pre-existing back injury prior to ACDUTRA that was not aggravated by ACDUTRA. The Board has considered the evidence discussed above. The credible contemporaneous statements of record from the claimant, in which he reported sustaining a back injury in a pre-ACDUTRA automobile accident, and the notation in the National Guard medical records dated June 22, 1993, clearly establish that the claimant had sustained a back injury from a motor vehicle accident that pre-dated his entry into ACDUTRA in September 1994. (As stated previously, the appellant in this claim is not a veteran and is therefore not entitled to any presumption of soundness on entry into ACDUTRA.) After a medical examination, the service medical board concluded that the claimant's pre-existing back injury was not aggravated (i.e., permanently worsened beyond its natural progression) in the line of duty by ACDUTRA. After having examined the claimant and reviewed the relevant evidence of record in his medical history, a subsequent VA physician's opinion dated in July 2010 concurs with the service medical board's determination that the claimant's pre-existing back injury was not permanently worsened beyond its natural progression by ACDUTRA service in the Minnesota Army National Guard. (As stated previously, the appellant's ACDUTRA service does not entitle him to any presumption of aggravation of a pre-existing condition.) As no aggravation of the pre-existing back condition in the line of duty during ACDUTRA is objectively demonstrated by the clinical record, the Board finds that the weight of the medical evidence is against the appellant's claim for VA compensation for a chronic back disability, to include DDD of the lumbar spine. Although lay persons such as the appellant are competent to provide opinions on some medical issues, the specific matter here (whether or not residuals of a low back injury that pre-existed his entry into ACDUTRA were aggravated in the line of duty by ACDUTRA in September - October 1994) falls outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay persons not competent to present a medical opinion as to whether an internal disease process had its onset in, or was otherwise aggravated (i.e., permanently worsened beyond its natural progression) by military service). To the extent that the appellant states that his claimed chronic back disability is related to and/or aggravated by his ACDUTRA service, the Board notes that an internal orthopedic disability of the spine is not readily amenable to mere lay diagnosis, as the evidence shows it is verifiable only through medical examination and medical imaging studies by a trained physician or orthopedic specialist. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); & Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). The appellant has not been shown to possess the requisite medical training, expertise, or credentials needed to render an orthopedic diagnosis as it relates to his back disability claim, or to present a competent opinion as to its medical causation or whether it was aggravated in the line of duty by his ACDUTRA service. Nothing in the record demonstrates that he received any special training or acquired any medical expertise in diagnosing and evaluating orthopedic disorders. King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). In addition, to the extent his lay assertions and statements are competent and probative regarding aggravation of his back disability by ACDUTRA inasmuch has he is qualified to state that he perceived his back symptoms to have worsened in severity since ACDUTRA, they are found to be completely outweighed by the more competent and probative medical opinions of the service medical board in 1994 and the VA physician's opinion of July 2010, which concluded that the claimant's back disability pre-existed and was not aggravated in the line of duty by his ACDUTRA service. In view of the foregoing discussion, the Board must deny the claimant's appeal for service connection for a chronic back disability, to include DDD of the lumbar spine, as the preponderance of the evidence is against allowing his claim. Because the evidence in this case is not approximately balanced with respect to the merits of this claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a chronic back disability, to include DDD of the lumbar spine, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs