Citation Nr: 18153491 Decision Date: 11/28/18 Archive Date: 11/27/18 DOCKET NO. 00-12 875 DATE: November 28, 2018 ORDER Entitlement to service connection for a low back disability to include low back strain is denied. Entitlement to service connection for a cervical spine disability to include cervical spondylosis is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the appellant has a low back disability due to a disease or injury in service, to include specific in-service event, injury, or disease. 2. The preponderance of the evidence is against finding that the appellant has a cervical spine disability due to a disease or injury in service, to include specific in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. § 3.303. 2. The criteria for a cervical spine disability have not been met. 38 U.S.C. §§ 1110, 1153, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served a period of active duty for training (ACDUTRA) in the United States Marine Corps from June 1972 to October 1972 and has additional unverified service in the United States Marine Corps Reserve. The appellant testified at a Board hearing at the RO in November 2001 before Veterans Law Judge (VLJ) Peevy. In May 2002, the Board denied the appellant’s request to reopen his previously denied claims of service connection for a cervical spine disability and for a low back disability. The appellant appealed to the United States Court of Appeals for Veterans Claims (Court) and, in April 2003, the Court, in a single-judge order, vacated and remanded the Board’s May 2002 decision, finding that the Department of Veterans Affairs (VA) failed to comply with the duty to notify under 38 U.S.C. § 5103(a) and the Veterans Claims Assistance Act of 2000 (VCAA). A June 2003 Court Order denied VA’s motion for reconsideration. In August 2008, after the case was remanded to the Board from the Court, the Board remanded the case to the RO to ensure compliance with the VCAA in accordance with the Court’s decision; the Board also directed that clarification be obtained from the appellant with regard to his desire for a new Board hearing. Clarification regarding the appellant’s desire to have a new Board hearing was received at the Board in March 2010. In an April 2010 decision, the Board remanded the claims to provide the appellant with the opportunity to testify at a new videoconference hearing, in accordance with the appellant’s wishes. A videoconference hearing was held by an Acting Veterans Law Judge (AVLJ) Maddox in October 2010. In May 2011, a panel decision of the Board signed by three VLJ (including the two VLJ’s who held the Board hearings in November 2001 and October 2010 (Peevy and Maddox) and a third VLJ) reopened and remanded the appellant’s previously denied claims of service connection for a cervical spine (neck) and a low back disability to the Agency of Original Jurisdiction (AOJ) for additional development. In August 2012, the appellant was advised of his right to have a third Board hearing before another VLJ. The appellant testified at a Board hearing at the RO in August 2015 before VLJ Braeuer. In March 2017, the appellant was informed that the VLJ who conducted the August 2015 hearing (VLJ Braeuer) was no longer employed by the Board. The appellant elected to have another hearing. Another videoconference hearing was held in December 2017 before VLJ Skaltsounis. Finally, the appellant then elected to appear before another VLJ and another videoconference hearing was held in July 2018 before VLJ Kennedy, as VLJ Peevy was no longer employed by the Board and the appellant was entitled to have a hearing before all members of the panel who will be deciding his case. Copies of the hearing transcripts from all of the above-mentioned hearings have been added to the record. In the present case, since the appellant testified at three hearings by an AVLJ and two current VLJs, a panel decision is necessary for final adjudication of the claim. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Board observes that the appellant has additional claims which have been certified to the Board including entitlement to service connection for posttraumatic stress disorder (PTSD), a right knee disability, a left knee disability, a right hip disability, a left hip disability and a total disability rating based on individual unemployability (TDIU). These issues will be addressed in separate decisions and are not addressed in the decision below. Service Connection At the outset, the Board notes that in this case, the appellant has not achieved “veteran status” for his period of ACDUTRA service. Special rules apply to National Guard and Reserve service. The initial determination in any claim for veterans’ benefits is whether the claimant is considered a “veteran” as defined under VA law. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Service in the National Guard, even during period of ACDUTRA (or INACDUTRA), without more, will not suffice to give one “veteran” status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). 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. § 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 Reserve for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Thus, in order to establish “veteran status” with respect to service in the Reserve or National Guard, and therefore eligibility for service connection, the record must establish that a claimant was disabled due to a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in the line of duty during a period of INACDUTRA. See Mercado-Martinez, 11 Vet. App. at 419; Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991); see also 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Currently, service connection is not in effect for any disabilities. Thus, he has not achieved “veteran” status. Finally, regarding ACDUTRA, the presumptions available to a claimant are limited. A claimant whose claim is based on a period of ACDUTRA can never be entitled to the presumptions of service connection for chronic diseases. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. Even for veterans who have achieved "veteran" status through a prior period of active service and now 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 v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or inactive duty training (INACDUTRA)) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. at 45-46. Moreover, if the claimant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. For the purposes of this case, the record does not show that prior to the appellant's period of ACDUTRA from June 1972 to October 1972, that he had any period of service in which "veteran" status was obtained. He did not serve on active duty, and has not established a service-connected disability. As to the substance of the claim, generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service, even if the disability was initially diagnosed after service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 1. Entitlement to service connection for low back strain 2. Entitlement to service connection for cervical spondylosis The appellant contends that his low back and cervical spine disability are both a result of his military service. The appellant asserts that he injured his neck during a training exercise in basic training when a drill instructor put him in a physical hold (described as a choke hold or sleeper hold) that strained his neck and lower back. The question for the Board is whether the appellant has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the appellant has a current diagnosis of low back strain and cervical spine disability, and evidence shows that in-service injury occurred, the preponderance of the evidence weighs against finding that the appellant’s diagnosis of low back strain and cervical spine disability began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records (STRs) reveal that the appellant’s spine was found to be clinically normal on enlistment examination in May 1972. The STRs showed that in November 1972, the appellant complained of four days of back pain due to “lifting” at the motor pool. STRs did not show diagnosis or treatment for a chronic cervical spine condition. Post service treatment records from the United States Marine Corps Reserve, indicated periodic physical examinations. In June 1973, bilateral L5 spondylosis was noted. This record included that this condition existed prior to enlistment. Post-service VA treatment records indicated multiple complaints of lower back and cervical pain, as well as pertinent diagnoses. These records reflect diagnostic findings and diagnoses that include a myelogram in 1983 with findings of cervical spondylosis with extradural defect at C4-5; a cervical MRI in 1999 showing a C3-4 disc herniation; lumbar MRI in 2000 showing a large left L5-S1 disc herniation; 2000 cervical MRI findings of multi-level degenerative disc disease in the cervical spine; lumbar x-rays in 2009 and 2011 demonstrating multilevel degenerative disease, grade I L4-5 spondylolisthesis and loss of lordosis; and cervical x-rays in 2009 demonstrating multi-level degenerative disease. The appellant underwent a L4-S1 discectomy in 2000 for the L5-S1 disc herniation. Several clinical notes documented a pain disability, but no neurologic deficits. The appellant underwent a VA examination for his spine in July 2009. The examiner confirmed a diagnosis of degenerative arthritis of the lumbosacral spine, and noted an extensive review of the evidence of record. The examiner opined that it was less likely than not (less than 50/50 probability) that the appellant’s cervical spine condition was caused by his period of active duty military service. The examiner provided that on reviewing the service department record envelope which included the period of active duty service, he did not find any entry relating to a cervical spine injury or problem and the condition of the cervical spine which seemed to bother the appellant the most at the time, developed a number of years later to the severity that it was at time of examination. The July 2009 examiner further opined that it was less likely as not (less than 50/50 probability) that the appellant’s lumbar spine condition was caused by his period of active service. The rationale for this opinion was the appellant’s STRs showed only a July 1973 report of low back pain and his current lumbosacral spine disability “developed many years after the appellant’s basic training in 1972.” A VA supplemental medical opinion was obtained in July 2011. The July 2011 examiner opined that the diagnosis of L5-S1 spondylolysis that was documented in the service treatment records was a pre-existing condition and there was no indication of any trauma or anything of that nature that worsened his condition. The examiner further opined that the disorder was less likely as not (less than 50/50 probability) related to his period of active duty service. The examiner provided that the only mention of active duty back injury found was in November 1972 and was listed as a complaint of back pain from an area dispensary on November 13, 1972. The examiner opined that it was less likely as not (less than 50/50 probability) that the pre-existing disability of the thoracolumbar spine was permanently aggravated or the result of the appellant’s military service. On addressing the issue as to whether the appellant’s neck disability was causally related to the appellant’s period of active duty service or any injury during military service, the examiner opined that the appellant’s cervical spine condition was less likely as not (less than 50/50 probability) caused by or the result of his period of active duty service. The examiner provided that though the spondylolysis of the L5-S1 area was identified during his active duty status, the examiner did not find any entries which indicated any type of significant injury or complaints in relation to the cervical spine. An independent medical opinion was obtained in March 2016. The examiner confirmed a diagnosis of cervical and lumbar degenerative disc disease, both chronic in nature. The examiner noted that the condition may have originated during the appellant’s military service and deteriorated several years later. However, it was unclear whether the appellant’s active service and his “pain disability” were directly related. The examiner concluded that the appellant’s claimed neck and low back disabilities were less likely than not related to his military service. The examiner noted that although it was possible that active service or the “choke hold” incident may be related, there was insufficient evidence to substantiate the claim. The examiner further opined that there was no clear and unmistakable evidence that the appellant’s low back disability existed prior to service. The examiner provided that there was mention of preexisting L5 spondylosis in a note dating back to 1973. However, there was no concrete evidence, such as x-rays, clinical findings, or pain disability prior to service. As to the first element to establish service connection, the Board notes that the record clearly shows that the appellant has cervical and lumbar degenerative disc disease. Regarding the low back disorder, the Board must first determine whether the appellant had a pre-existing low back disability. There is no clear evidence that the appellant’s lumbar disability pre-existed his military service. Although there are notations of a pre-existing L5 spondylosis dating back to 1973, the appellant’s May 1972 enlistment examination reflected that his spine was clinically normal. Moreover, after review of the medical evidence, including the appellant’s STRs, the March 2016 examiner determined there was no clear and unmistakable evidence indicating a preexisting low back disorder. The Board finds this opinion to be highly probative because it is based on a thorough review of the evidence and is supported by sufficient medical rationale. Based on a review of the overall record, the Board is unable to find that the record contains probative evidence that the appellant had a preexisting back disability as he was found fit for duty. As such, this claim is one for service connection based on service incurrence. As to the second element of an in-service incurrence the appellant is competent to report that he sustained neck and low back pain after being placed in a “choke hold” during basic training. He has also reported that he has had neck and back pain since service which he attributes to the “choke hold” he sustained in basic training. The STRs also note that the appellant reported that he had back pain in service, although a report of cervical pain is not noted. However, the appellant is competent to report events he personally experienced. Thus, the Board finds the appellant’s reports of back pain in service consistent with the circumstances of his service. 38 U.S.C. § 1154 (a). Thus, an in-service event or injury is established. However, as to the third element of a nexus between the claimed in-service disease or injury and the present disability, the Board finds that the requirement of this element has not been established. In this regard, in determining the probative value to be assigned to a medical opinion, the Board must consider three factors: whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case; whether the medical expert provided a fully articulated opinion; and whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.”). In this case, the VA examiner who performed the July 2009 examination and also provided the July 2011 addendum medical opinion was aware of the appellant’s medical history, provided a fully articulated opinion, and also furnished a reasoned analysis. Further, the examiner who provided the March 2016 independent medical opinion considered the lay and objective evidence of record. The Board therefore attaches significant probative value to these opinions as they are well reasoned, detailed, consistent with other evidence of record, and included an access to the accurate background of the appellant. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (Factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Lay evidence was also received in the form of statements from the appellant submitted throughout the appeal period, and testimony from the appellant during the Board hearings. These lay statements indicated that the appellant had back pain since service and worsening back pain over the years post-service. The Board finds the lay evidence which describes the appellant’s post-service back problems to be competent. The appellant is also competent to report back pain which occurred during his service and back pain that occured after service, and is credible in this regard. However, as a lay person, the appellant does not have the training or expertise in medical matters and this issue involves a medical determination that is complex. Therefore, the VA medical opinions are more probative regarding the causation question in this case and have been obtained as set forth above. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). There is no competent and credible evidence that either a current chronic lumbar spine disability or a current chronic cervical spine disability was manifested in service. As noted, an independent medical opinion was obtained in March 2016. The examiner was unable to provide a positive nexus in this case. While the examiner noted that it is “possible” that the cervical and lumbar degenerative disc disease may have originated during the appellant’s military service, the examiner ultimately concluded that there was insufficient evidence to substantiate the claims. See e.g. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (doctor’s opinion that “it is possible” and “it is within the realm of medical possibility” too speculative to establish medical nexus). The Board finds that the question of whether the appellant’s current low back and cervical disability is related to the events of service or to the appellant’s report of recurrent back and neck pain is too complex in nature and in this case specifically to be addressed by lay evidence. The most probative evidence of record is the opinion of the March 2016 examiner who, while considering the appellant’s statement of recurrent back pain in service and since, provided an opinion against the claims. There is no competent and credible evidence to the contrary. Thus, the appellant’s opinion regarding causation is outweighed by the findings to the contrary provided by the VA examiner, a medical professional who considered the pertinent evidence of record and found against such a relationship. See id.; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). Service connection on a direct basis is denied because there is no competent and credible evidence linking either disability to service. The Board acknowledges that certain chronic diseases may be presumed to have been incurred in or aggravated by service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Arthritis is one such qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). However, as indicated, presumptive periods do not apply to periods of ACDUTRA. Therefore, service connection via the demonstration of continuity of symptomatology is not for consideration in this case. 38 C.F.R. §§ 3.307, 3.309; Walker, supra. (Continued on the next page)   Thus, the Board further finds that the currently diagnosed cervical and lumbar degenerative disc disease is not attributable to service. In reaching this decision, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant’s claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals April Maddox Acting Veterans Law Judge Board of Veterans’ Appeals S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Sarah B. Richmond