Citation Nr: 1743471 Decision Date: 09/29/17 Archive Date: 10/10/17 DOCKET NO. 12-17 871A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for a low back disorder, to include degenerative joint disease (DJD) and degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1976 to March 1979. He also had subsequent service in the Army Reserves from March 1979 to March 1982, and in the National Guard from February 1988 to February 1989, February 1990 to June 1991, and December 1995 to December 1998, with a verified period of active duty for training (ACDUTRA) from July 12, 1997 to July 26, 1997. See Army National Guard Retirement Points History Statement. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2008 and March 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. In April 2017, the Veteran failed to appear at a scheduled hearing before the Board. Attempts were made to contact the Veteran by phone and email without success. Without good cause shown for the failure to appear, the request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704 (d) (2016) (providing that failure to appear for a scheduled hearing will be processed as though the request for a hearing had been withdrawn). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. While the Board sincerely regrets the delay, the Veteran's claim is remanded for further development in accordance with VA's duty to assist. Such development is necessary to aid the Board in making an informed decision, and will help ensure that the claim is afforded every consideration. 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 (West 2014); 38 C.F.R. § 3.303(a) (2016). 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). A Veteran is "a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable." 38 U.S.C.A. § 101 (2); 38 C.F.R. § 3.1 (d). Active Duty for Training (ACDUTRA) is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6 (c)(1). ACDUTRA is not defined as "active" service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). A claimant whose claim is based on a period of ACDUTRA or inactive duty for training (INACDUTRA) cannot be entitled to the presumption of service connection for various diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010); see also 38 U.S.C.A. §§ 101 (24)(B), 1112, 1137; 38 C.F.R. §§ 3.6 (a), 3.307(a). However, for veterans who have achieved "veteran" status through a prior period of active duty service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith, at 45-46. Thus, a claimant who has "veteran" status through a prior period of active duty and wishes to apply for a disability that was incurred during a period of ACDUTRA must have had an examination prior to entering the period of ACDUTRA during which the injury or disease occurred for the presumption of soundness to apply. Further, the Board notes that with respect to a claim for aggravation of a preexisting disorder during ACDUTRA, the presumption of aggravation does not apply. See Id., at 48. As service connection based on a period of ACDUTRA requires the presence of a disease or injury during service, service connection may only be established by direct evidence both that a worsening of the disorder occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Id. Any increase in severity must also be permanent. Recurrence or temporary flare-ups of symptoms do not constitute an increase in severity. Davis v. Principi, 273 F.3d 1341, 1345 (Fed. Cir. 2002). The Veteran asserts entitlement to service connection for a degenerative joint disease and degenerative disc disease of the lumbar spine. Specifically, he maintains that he sustained multiple injuries to his back during his Reserve and/or National Guard service, but his accounts have varied. In his original April 2008 claim, he stated that he had low back spasms in June 1986 while at Camp Guernsey, Wyoming. In October 2009, he further explained that he hurt his back in the National Guard at Camp Guernsey in 1986 when he stepped in a hole while carrying a toolbox. He stated that he later reinjured his back at Camp Guernsey in 1988. He stated that at the time of both injuries he was doing two-week training and lifted too much weight. During a May 2012 VA C&P examination the Veteran stated that he fell in a hole and wrenched his back in 1983 and was kept in an infirmary for 7 days. However, during a March 2017 VA C&P examination Report he reported that he hurt his back after falling in a hole and on another occasion while lifting heavy, but that the injuries occurred in 1991 or 1992 and then in 1994. See also Statement from the Veteran, dated August 17, 2016. The service treatment records show only one injury to the Veteran's back. During a period of ACDUTRA, on July 21, 1997 he sought treatment for a history of lower back strain that occurred that morning. He denied a history of trauma. A July 21, 1997 x-ray showed mild degenerative disc disease of the lumbosacral spine. The injury was determined to be in the line of duty. A July 26, 1997 treatment record noted that on July 21 the Veteran was a passenger in a 109H when a down-shift motion caused him to fall from his seat to the front inside of the gun. He felt a pinch in his right side and lower back. When the driver then power-shifted to the left, the Veteran was thrown to the right of the gun. He was then unable to move his back as the muscles were tightening up down to his right leg. The assessment was severe muscle strain of the right lower back. Here, the Veteran did not undergo an examination prior to his period of ACDUTRA from July 12, 1997 to July 26, 1997. Thus, he is not entitled to the presumption of soundness. See Smith v. Shinseki, 24 Vet. App. 45, 46. The most recent VA examination in March 2017 shows that the Veteran is diagnosed as having degenerative disc disease and degenerative joint disease of the lumbar spine. The VA examiner stated that the Veteran's degenerative disc disease was less likely than not caused by his in-service injury. He noted that the in-service x-ray dated July 21, 2007 noted an incidental finding of mild DDD of the lumbar spine; however, he stated that the finding of mild DDD of the lumbar spine is not an acute finding associated with the injury the Veteran was evaluated for and was therefore a pre-existing condition. The examiner went on to state that the pre-existing back condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its progression by an in-service event, injury, or illness. The examiner reasoned that because the Veteran did not thereafter seek treatment for a low back condition prior to 2010, aggravation beyond its natural progression cannot be established. Because the VA examiner did not provide a rationale for his opinion that the Veteran's DDD of the lumbar spine existed prior to service, remand for an addendum opinion is required. Accordingly, the case is REMANDED for the following action: 1. Return the claims file to the March 2017 VA examiner, if available, for an addendum opinion. The entire claims folder must be made available to the examiner for review. A notation to the effect that this record review took place should be included in the report. The examiner should provide opinions on the following: (a) Did the mild degenerative disc disease of the lumbosacral spine noted on the July 21, 1997 x-ray pre-exist the Veteran's period of military service that began on July 12, 1997? In providing this opinion, the examiner should specifically address the fact that the Veteran denied a history of any prior trauma to his back at the time of the July 21, 1997 injury; that his medical records are negative for any complaints or findings of a low back disorder prior to July 21, 1997; and that on examinations in February 1995 and November 1995 he denied a history of back pain on medical prescreening forms, and clinical evaluation of his spine was normal. (b) If mild degenerative disc disease of the lumbosacral spine pre-existed military service beginning on July 12, 1997, did it increase in severity beyond its natural progression during the period of ACDUTRA from July 12, 1997 to July 26, 1997? In providing this opinion, the examiner should specifically address the complaints and findings pertaining to the Veteran's low back injury on July 21, 1997. (c) If the response to (a) is negative, is it at least as likely as not (50 percent or greater probability) that the Veteran's degenerative disc disease of the lumbar is etiologically related to his back injury on July 21, 1997? (d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's degenerative joint disease (as opposed to his degenerative disc disease) of the lumbar spine is etiologically related to his back injury on July 21, 1997? If the examiner determines that additional examination of the Veteran is required in order to provide the requested opinions, then the Veteran should be scheduled for an additional VA examination The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 2. Then, review the medical report to ensure that it adequately responds to the above instructions, including that it provides an adequate explanation in support of the opinion(s) stated. If the report is deficient in this regard, return the case to the examiner for further review and discussion. 3. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).