Citation Nr: 1630191 Decision Date: 07/28/16 Archive Date: 08/04/16 DOCKET NO. 13-22 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active duty in the U.S. Air Force from January 28, 1998 to April 27, 2002. He served in the U.S. Air Force Air National Guard from April 2002 to October 2010 with multiple Title 10 tours of duty in between, to include service in Kuwait, Jordan and Qatar. The period at issue in this case is from August 25, 2006 to August 29, 2006, when the Veteran performed active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). In May 2015, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran's claims file. The Board acknowledges that the Veteran's claim for service connection for a low back disability was denied in a November 2007 rating decision and that the RO has characterized the issue as whether new and material evidence has been submitted to reopen a claim. 38 C.F.R. § 3.156(c) provides that, notwithstanding any other section of 38 C.F.R. Part 3, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a) (concerning the requirement to reopen a previously finally denied claim with new and material evidence). This includes (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of 38 C.F.R. § 3.156(c) are met; (ii) additional service records forwarded by the Department of Defense or the service department any time after VA's original requires for service records; and (iii) declassified records that could not have been obtained when the records were classified when VA decided the claim. Here, an August 2006 order shows that the Veteran performed annual training from August 25, 2006 to August 29, 2006 in Michigan. This evidence corroborates the Veteran's testimony that he performed annual training at this time. For these reasons, the Board will reconsider the Veteran's claim for service connection for a low back disability from the date of his original claim, and his claim will not be characterized a new and material evidence claim. FINDINGS OF FACT 1. The Veteran has a currently diagnosed low back disability. 2. The Veteran's low back disability was permanently aggravated during a period of ACDUTRA. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for a low back disability have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2015). The claim has been considered with respect to VA's duties to notify and assist. Given the favorable outcome of this decision, no conceivable prejudice to the Veteran could result from this decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection Laws and Regulations The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed.Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, as regards the motion before the Board. The Veteran must not assume that the Board has overlooked any pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" includes active duty, 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 any period of 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(22), 101(24); 38 C.F.R. § 3.6 (2015). Service connection for INACDUTRA is permitted only for injuries, not diseases, incurred or aggravated in line of duty. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993). VA's General Counsel has interpreted that it was the intention of Congress when it defined "active service" in 38 U.S.C.A. § 101(24) to exclude inactive duty training during which a member was disabled or died due to nontraumatic incurrence or aggravation of a disease process. VAOPGCPREC 86-90. Generally, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). 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). 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"). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The advantage of certain evidentiary presumptions, provided by law, that assist Veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service- connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (1999) (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. A claimant still can prove service connection by aggravation without the presumption of aggravation by showing that the preexisting condition worsened beyond the natural progress of the condition during a period of ACDUTRA. A preexisting injury or disease will be considered to have been aggravated by active 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. 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 C.F.R. § 3.306(b). Service connection for a low back disability The Veteran is seeking service connection for lumbar spine disability that he believes was aggravated by participation in a military firearms training course from August 24, 2006 to August 29, 2006. The Veteran reported that the artillery training course involved physical activities, such as running and participation in an obstacle course, which aggravated his lumbar spine disability, resulting in a lumbar disc herniation that required multiple surgical interventions. By way of background, the Veteran served on active duty from January 2008 to April 2002, and has additional service with the Rhode Island Air National Guard. From November 2005 to June 2006, the Veteran was activated to active duty, including a deployment to Qatar from November 2005 to April 2006. In a May 2006 Post-Deployment Health and Assessment form, the Veteran denied the presence of back pain. In December 2007, the Veteran filed for disability compensation benefits from the Social Security Administration (SSA). The Veteran indicated that he was disabled and unable to work, in pertinent part, due to a back injury sustained on August 2, 2006. This date was confirmed by the Veteran's attorney in an October 2009 letter to SSA. In November 2009, SSA awarded disability compensation benefits to the Veteran, finding that the evidence of record was consistent with the Veteran's alleged onset of disability as beginning on August 2, 2006. As a result, the SSA concluded that the Veteran's back impairment as of August 2, 2006, left the Veteran unable to lift or carry more than 10 pounds, or perform prolonged sitting, standing, or walking. An August 7, 2006, a private urgent care center treatment record indicates that the Veteran presented with a one-to-two month history of left-sided low back pain with no known trauma. The Veteran presented with spasm and tenderness in the lumbar spine and x-rays were negative. The private clinician provided a diagnosis of acute low back pain and the Veteran was scheduled for a magnetic resonance imaging (MRI) study the following day. The August 8, 2006 MRI report indicates that the Veteran reported lower back and left buttock pain. The MRI report documented a small central disc protrusion at L5-S1 that was mildly indenting the thecal sac and minimal disc bulging at L4-L5 with no canal or foraminal narrowing. Between August 24, 2006, and August 29, 2006, the Veteran attended a military firearms training course. Per the Veteran's report, the training course involved running and completion of an obstacle course that resulted in increased low back pain. A September 6, 2006 service treatment record indicates the Veteran reported currently experiencing a flare-up of his symptoms of approximately one week's duration. The Veteran reported low back pain that radiated into his left posterior thigh and paresthesias in the posterior thigh. An MRI was scheduled for the following day. The September 7, 2006 MRI report documented a left disc herniation at L5-S1 with considerable degenerative disc disease and minor degenerative change at the apophyseal joints bilaterally with impingement of the left S1 nerve root. A September 25, 2006 private examination report reflects that the Veteran reported mild back and left leg pain since May 2006, but that following the obstacle course training in August he experienced increased back and leg pain. Upon examination, the Veteran reported constant, severe back and leg pain as well as constant left lower extremity numbness and paresthesias. The private clinician provided a diagnosis of left S1 radiculopathy secondary to a disc extrusion and recommended surgical treatment. The Veteran underwent a hemilaminectomy and discectomy on October 31, 2006. In a September 26, 2006 statement, the Veteran indicated that he completed a rifle obstacle course on August 28, 2006, and woke up the next morning with minimal pain that was isolated to his low back. The Veteran denied a specific injury or trauma, but reported that the pain was due to routine physical activity associated with the firearms training course. The Veteran reported that upon returning home his symptoms increased and began to radiate down into his left lower extremity. In May 2012, the Veteran was afforded a VA examination for his back disability. The examiner diagnosed the Veteran with degenerative joint disease. The examiner opined that the back disability clearly and unmistakably existed prior to service and was aggravated beyond its normal progression by an in-service injury. The examiner explained that it is fair to say that the firearms training aggravated his back condition and needed to seek out medical attention and required a MRI and this lead to evaluation by a neurosurgeon, treatment and surgery. In a June 2012 addendum opinion, the May 2012 examiner reviewed the records from Social Security Administration. She opined that it was less likely than not that the current back condition was caused by military service or National Guard training because the SSA record indicated that the Veteran sustained a back injury in a truck accident on August 2, 2006, after his separation from military service but prior to the training with the National Guard. The examiner found that the MRI dated in September is nearly identical to the MRI completed on August 8th. Therefore, while the Veteran has reported an increase in symptoms following his training, there was no objective evidence to support this. Therefore, the examiner opined that the Veteran's L4-L5 and L5-S1 disc protrusions/bulges were not permanently aggravated by this period of training at the end of August. The Board found that another opinion was needed and requested a VA medical expert opinion in October 2015. In a March 2016, the Chief of Neurosurgery, K.B., at the Denver VA hospital reviewed the evidence and provided an opinion. Although the medical expert noted that herniated discs are common and etiology of a herniation is rarely certain, it was indicated that the evidence shows that the Veteran had an increase in pain and more prominent nerve related pain due to his activity as a participant in the rifle obstacle training course. The description of the pain was different as was the reading on the MRI done before and after that event. The medical expert opined that it was appropriate to find that the Veteran's back disability was aggravated by this activity. The medical expert also found there was no way to state that this worsening would have been permanent. He noted that it is common for patients with disc herniation to recover without the need for surgical intervention. Most patients show enough improvement within the first 2 months to indicate that they will not require operation. The Veteran must not have shown any significant improvement, as he underwent surgery to decompress the left S1 nerve in October 2006. Later, when he had little improvement related to his procedure, further work-up indicated that his pain may have been generated from the disc space at L5-S1 and he underwent a fusion operation. He continued to have significant pain despite these interventions and later had a spinal cord stimulator implanted for pain relief and continues with pain management clinicians. In summary, the medical expert found that the Veteran had aggravation of his back condition at the time of the training course. Whether that flare in pain would have been permanent cannot be known. Also, it cannot be known whether he would have naturally progressed to his chronic lumbar pain status with or without that aggravation. Although the medical expert concluded that it could not be known if the pain would have been permanent, the medical expert also noted that the Veteran's disability must not have shown any significant improvement following the training course as he underwent surgery in October 2006. Upon consideration of the record, the Board finds that service connection is warranted for a low back disability because it was aggravated during a period of ACDUTRA. First, it is undisputed that the appellant currently has a low back disability. See May 2012 VA examination. Second, the Board finds that the above evidence establishes that the Veteran had a lumbar spine condition prior to his participation in the firearms training course between August 24, 2006, and August 29, 2006. For instance, the Veteran's SSA disability award shows a back disability start date to be August 2, 2006. Although the Veteran claims to be in a motor vehicle accident in Qatar prior to this date, no evidence of this is shown in the record. As noted above, the presumption of soundness or aggravation does not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995). The higher standard requiring "clear and unmistakable evidence" of preexisting disability for rebutting the presumption does not apply. Having stated as much, the question becomes whether the Veteran's pre-existing back disability was aggravated by this period of ACDUTRA. The Board notes that there are both positive and negative opinions regarding the question of aggravation of the claimed low back disability. Several lay statements from the Veteran, his wife, and his military supervisor as well as medical documentation indicate that the Veteran's symptoms worsened during the period of time which he attended the training course. The VA medical expert who reviewed the file most recently in March 2016 found that the evidence showed that the Veteran's back disability was aggravated by the training course at the end of August. The clinician reviewed the history and provided medical opinions which are consistent with the history. Although the medical expert concluded that it could not be known if the pain would have been permanent, the medical expert also noted that the Veteran's disability must not have shown any significant improvement following the training course as he underwent surgery in October 2006. On the other hand, the May 2012 examiner found no aggravation of the Veteran's back disability during the training course. In considering the evidence of record, the Board finds that the medical evidence of record for and against the claim is in relative equipoise. Resolving doubt in favor of the Veteran, entitlement to service connection for a low back disability is granted. ORDER Service connection for a low back disability is granted. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs