Citation Nr: 1804580 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 17-29 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for left knee disability as secondary to a low back disability. 3. Entitlement to service connection for a right arm disability as secondary to a low back disability. REPRESENTATION Veteran represented by: Kathy A. Lieberman ATTORNEY FOR THE BOARD P. Mays, Associate Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Veteran served in the Army National Guard from February 1981 to June 1987. He had a period of active duty for training (ACDUTRA) from January 1982 to July 1982 and had additional periods of inactive duty for training (INACDUTRA). This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that in March 2015, the RO denied the Veteran's claims for service connection for low back and left knee disabilities. In April 2015, he filed a timely Notice of Disagreement (NOD) form, but did not provide the required information and the RO informed him it was not a valid NOD. The same month, the Veteran submitted a new claim form for the three disabilities listed on appeal. In a July 2015 rating decision, RO reopened and denied the low back and left knee claims, and denied the right arm claim. In October 2015, the Veteran submitted a timely and complete NOD. As the October 2015 NOD is also timely with respect to the March 2015 rating decision, the Board finds that the March 2015 rating decision did not become final and new and material evidence is not needed with regard to the low back and left knee claims. FINDINGS OF FACT 1. The preponderance of the evidence reflects that the Veteran has a low back disability due to an injury sustained during a period of INACDUTRA. 2. The Veteran's left knee disability is a result of his lower back disability. 3. The preponderance of the evidence reflects that the Veteran has not had a right arm disability during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability have been met. 38 U.S.C. §§ 101, 106, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303 (2017). 2. The criteria for service connection for a left knee disability have been met. 38 U.S.C. §§ 101, 106, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.310 (2017). 3. The criteria for service connection for a right arm disability have not been met. 38 U.S.C. §§ 101, 106, 1131, 5107 (2012); 38 C.F.R. §§ 3.6, 3.303, 3.304, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Assist Given the granting of the Veteran's claims for service connection for low back and left knee disabilities, any further development or notification action under the duties to notify and assist would not avail the Veteran. With regard to the issue of service connection for a right arm disability, neither the Veteran nor his attorney have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In this case, the Veteran has only periods of ACDUTRA and INACDUTRA. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U. S.C. § 101 (2012); 38 C.F.R. § 3.6(a) (2017). Active military, naval, or air service also includes any period of INACDUTRA in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for a disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101, 106, 1131 (2012). ACDUTRA includes full time duty performed by members of the National Guard of any state or the Reserves. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). A. Low Back Disability The Veteran presented clinical progress notes from UAB Health Centers which indicated that he was receiving on-going treatment for a lower back condition. In November 2017, the Veteran received a private medical opinion, which indicated that he had been diagnosed with lumbar spondylosis, lumbar radiculitis, lumbar facet joint pain, DDD (degenerative disc disease), and bulging lumbar disc. As such, the Veteran has a current disability. The first element of a service connection claim is met. Shedden, 381 F.3d at 1166-67. The Veteran contends that he injured his low back while performing a training maneuver during a period of INACDUTRA. In a statement dated January 2017, the Veteran asserted that "[d]uring nighttime bivouac training exercise in July of 1983 as we were hurriedly changing the guard, I had to jump from a height of about 20 feet, out of a moving truck. In this maneuver, I fell and injured my back." The Veteran's service treatment records, show that he was treated for a back ache in July of 1983. The most credible evidence of record then, shows that the Veteran was injured in a period of INACDUTRA. The second element of a service connection claim is met. Id. The remaining question with regard to this issue is whether there is a nexus between the Veteran's current disability and his in-service injury during his period of ACDTURA. The Veteran received an independent medical opinion from a Dr. S. M., a private physician, in November 2017. The physician presented literature which indicated the perils of falling from vehicles. The provider opined that it was as least as likely as not due to an in-service injury to his spine, and therefore is as least as likely as not to be service related. As such, the physician determined that the Veteran's back injury is related to his military service. Dr. S. M. stated that the Veteran likely jumped from the truck in full gear, which he stated was an independent risk factor to the injury. He noted that injury to the back could occur from carrying gear alone, and that such injury would be compounded by jumping from a height, which would result in significant suppression to the spine. The examiner provided a reasoned opinion, supported by medical literature as to the etiology of the Veteran's disability. Consequently, resolving doubt in the Veteran's favor, the Board finds that the Veteran's low back disability is a result of his in-service injury while on INACDUTRA. Service connection therefore for a low back disability is warranted. 38 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Left Knee Disability The Veteran contends that his left knee disability is caused by his now service-connected low back disability. Service connection may be granted on a secondary basis where a disability is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R.§ 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); Wallin v. West, 11 Vet. App. 509 (1998). In a medical report from UAB Medicine from a May 2016 examination, an imaging study of the Veteran's left knee showed a sclerotic lesion in the distal femoral diaphysis which contained punctate sclerotic foci. The physician's impression was low grade cartilaginous lesion in the distal femoral diaphysis without aggressive features. He was found to have medial and lateral joint tenderness. As such, the Veteran has a current knee disability. Wallin, 11 Vet. App. at 512. His low back disability is service-connected, satisfying the second element of a secondary service connection claim. Id. The remaining question is whether there is a nexus between the Veteran's service-connected low back disability and his left knee disability. Dr. S. M. offered an opinion in November 2017, with respect to the etiology of Veteran's left knee disability. The Veteran relayed to the examiner that at times he experienced excruciating back pain, which caused him to collapse. He stated that he fell in 1994 or 1995 during a severe back episode, which caused him to injure his left knee. As a result, Dr. S. W. opined that the Veteran's s subsequent injury to his knee was as least as likely as not due to his lumbar spondylosis. For these reasons, the Board finds that the preponderance of the probative evidence of record weighs in favor of the claim of service connection for a left knee disability. Service connection for a left knee on a secondary basis is granted. 38 C.F.R. §§ 3.102, 3.310 (2017). C. Right Arm Disability The Veteran contends that he has a right arm disability that was caused by his service-connected low back disability. In an Affidavit dated January 2017, the Veteran indicated that in 2010, he fell and injured his arm. This injury occurred well after his military service ended, and prior to the beginning of the appeal period in this case. There is no probative medical or lay evidence in the record which shows that the Veteran currently has a right arm disability, or has had one during the appeal period. Dr. S. M.'s November 2017 opinion did not address a right arm disability. Clinical progress notes of record do not show an treatment for right arm symptoms, or the diagnosis of any right arm disability. Other than stating that he injured his right arm in 2010, the Veteran has no provided any additional lay evidence in support of his claim. He has not described any symptoms of a right arm disability. Congress has specifically limited entitlement to service-connected benefits to cases where there is a disability during the appeal period. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). In light of the absence of any competent evidence of a right arm disability, this claim must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disability is granted. Service connection for a left knee disability is granted. Service connection for a right arm disability is denied. ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs