Citation Nr: 18153696 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 09-32 603 DATE: November 29, 2018 ORDER Entitlement to service connection for a back disability is granted. Entitlement to service connection for a neck disability is granted. REMANDED Entitlement to service connection for a left ankle disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The appellant’s back disability had its onset during active duty for training (ACDUTRA). 2. The appellant’s neck disability had its onset during ACDUTRA. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability are met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.6, 3.303. 2. The criteria for entitlement to service connection for a neck disability are met. 38 U.S.C. §1131; 38 C.F.R. §§ 3.6, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on ACDUTRA with the United States Marine Corps Reserve from May 1986 to September 1986, July 1987, March 1988, June 1988, March 1989, June 1989 to July 1989, and February 1990, with additional Reserve service to include unverified periods of inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2014, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In September 2018, the Veteran requested another Board hearing which was scheduled for October 2018; however, he did not appear for the scheduled Board hearing, did not offer good cause for his absence, and has not since requested a new hearing. Therefore, the request is considered withdrawn. 38 C.F.R. § 20.704(d). The appeal was remanded for further development in June 2014 and November 2016. The appellant initially filed a claim for back problems, however the RO has also adjudicated his entitlement to service connection for a neck disability. Accordingly, this issue is also within the Board’s jurisdiction. Percy v. Shinseki, 23 Vet. App. 37 (2009). Service Connection 1. Entitlement to service connection for a back disability is granted. 2. Entitlement to service connection for a neck disability is granted. The appellant asserts that he incurred his back and neck disabilities during ACDUTRA in June/July 1989 while loading washers and dryers onto a dump truck and that his injuries were exacerbated by a wrestling incident with a fellow Marine thereafter with continuous pain since that accident. See September 2006 VA Form 9, March 2014 Board Hearing Transcript at 7, and May 2017 Veteran Statement. Service connection may be established for a disability resulting from injury or disease incurred in or aggravated during active service. 38 U.S.C. § 1131. Service connection may also 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). Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of INACDUTRA during which the veteran was disabled from an injury incurred in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Generally, to establish service connection the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The appellant has multiple current diagnoses for his back, including multilevel spondylosis of the thoracic spine and degenerative arthritis of the thoracolumbar spine. See November 2016 private treatment record and July 2017 Disability Benefit Questionnaire (DBQ). Additionally, the appellant has current diagnoses of degenerative arthritis of the cervical spine, cervical spondylosis with multilevel foraminal stenosis, and cervical subluxation. See Id. Thus, element one is met for both his back and neck disabilities. Regarding element two, in-service incurrence of a disease or injury, the Veteran’s service treatment records (STRs) other treatment records note the Veteran’s history of back pain complaints during ACDUTRA and indicated the he had a history of joint problems, thoracic scoliosis, and loss of cervical curvature (lordosis). See January 1990 and February 1990 STRs. Moreover, in July 1990 and October 1990 the Veteran was found to be unqualified for retention in the Reserve due to chronic low back pain with associated sciatica and due to thoracic cervical subluxation and thoracic scoliosis, respectively. Thus, element two for both disabilities is also met. As to element three, nexus, in a July 2017 DBQ, a VA examiner opined that the appellant’s degenerative arthritis in his neck and back were incurred in service. Specifically, after a thorough review of the claims file including a detailed analysis of the Veteran’s relevant medical history during and since service, the examiner found that medical records indicated the appellant had several complaints of low back pain in 1990 and his resulting back condition later disqualified from further service, and his back condition persisted with continuing pains post-service which eventually lead to a finding of degenerative changes on X-ray in February 2016. Additionally, regarding his neck disability, the examiner noted a diagnosis of cervical subluxation in 1990 which also disqualified him for retention for service at that time and that post-service he continued to have cervical pains which led to further evaluation in 2004 and eventually a finding of degenerative changes in his cervical spine in March 2009. The examiner’s findings support an onset of the appellant’s back and neck disabilities during his ACDUTRA service. There is no competent evidence to the contrary. The Board recognizes that the February 2016 VA examiner ultimately reached a conclusion unfavorable to the appellant’s back claim. However, the examiner relied solely on the absence of documented back injuries during ACDUTRA, did not address whether his back disability is related to any injuries during INACDUTRA, and did not address the Veteran’s neck disability at all. Thus, the opinion is inadequate and is of no probative value. Thus, element three for both his back and neck disabilities is met. In sum, the evidence of record reflects that the appellant has current back and neck disabilities that had their onset during his ACDUTRA service. Thus, service connection is warranted. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Moreover, by virtue of this grant of benefits, the appellant has now achieved “veteran” status. REASONS FOR REMAND 3. Entitlement to service connection for a left ankle disability is remanded. Pursuant to the Board’s November 2016 remand directives, the Veteran was afforded a VA examination in July 2017. The examiner found no current left ankle disability and rendered a negative nexus opinion. However, the Veteran has a diagnosis of left ankle lateral collateral ligament sprain (see February 2016 VA examination report) during the appeal period, and even if the disability has since resolved he is still considered to have a current disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, the opinion is inadequate and an addendum opinion is warranted on remand. Additionally, the Veteran’s periods of INACDUTRA still have not been verified, nor has there been an issuance of a specific finding that these periods cannot be determined as requested in the November 2016 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, this request should also be fulfilled on remand. Any outstanding treatment records should also be secured. 4. Entitlement to a TDIU is remanded. The Veteran does not currently meet the schedular criteria for a TDIU. However, the agency of original jurisdiction (AOJ) must implement the above-detailed award of benefits for his back and neck disabilities on remand, as this will impact the overall combined rating for his service-connected disabilities. Additionally, the Veteran’s TDIU claim is inextricably intertwined with his left ankle claim remaining on appeal. Thus, entitlement to a TDIU rating is deferred pending resolution of the left ankle claim on appeal and implementation of benefits for his back and neck disabilities. The matters are REMANDED for the following action: 1. Verify the Veteran’s periods of INACDUTRA. Please note that reports of retirement points do not contain the necessary information in this regard. If the AOJ is unable to determine the periods of INACDUTRA, a specific finding to that effect must be made and associated with the claims file. 2. Obtain any outstanding VA treatment records. 3. With any necessary assistance from the Veteran, obtain any outstanding relevant treatment records. 4. Then, return the claims file to the July 2017 VA examiner (or another qualified examiner, if unavailable) for preparation of an addendum opinion. No additional examination of the Veteran is necessary, unless the examiner determines otherwise. The claims file, including a copy of this remand, must be provided to the examiner in conjunction with the requested opinion. The examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s currently diagnosed left ankle lateral collateral ligament sprain: (a) had its onset during service or a verified period of ACDUTRA; (b) is otherwise the result of a disease or injury incurred during active duty or a verified period of ACDUTRA; or (c) is otherwise the result of an injury incurred during a verified period of INACDUTRA. In addressing these questions, the examiner is asked to provide a complete rationale and review and consider all STRs, including documentation of the Veteran’s complaints of left ankle pain, a history of left ankle sprain, and being placed on light duty due to a sprained ankle (see June 1987, December 1989, and January 1990 STRs), as well as the Veteran’s statements during his March 2014 Board hearing. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel