Citation Nr: 19154698 Decision Date: 07/16/19 Archive Date: 07/15/19 DOCKET NO. 15-24 990 DATE: July 16, 2019 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT A lumbar spine disability was not manifest during ACDUTRA. A lumbar spine disability is not attributable to ACDUTRA. CONCLUSION OF LAW A lumbar spine disability not incurred in or aggravated by ACDUTRA. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty for training (ACDUTRA) in August 1973. The appellant was afforded a videoconference hearing in May 2019 before the undersigned Veterans Law Judge (VLJ). The transcript is of record. During the Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection claims; identified potential evidentiary defects; clarified the type of evidence that would support the appellant’s claim; and enquired as to the existence of potential outstanding records. The actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. 1. Entitlement to service connection for a lumbar spine disability Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty training (ACDUTRA), or injury incurred while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101 (24), 106, 1110. Establishing service connection generally requires competent evidence of: (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 or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one “veteran” status. See Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Thus, presumptive periods, however, do not apply to periods of ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 47-78 (1991). The appellant did not perform “active service” and he does not have a service-connected disability. Therefore, the one-year presumptive period is not applicable and consideration of 38 C.F.R. § 3.309 (presumption of service incurrence for certain diseases) for the appellant’s periods of ACDUTRA is not appropriate. Nonetheless, the Board points out that arthritis is a chronic disease. 38 U.S.C. § 1101. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). The appellant seeks service connection for a lumbar spine disability. Medical records show treatment for degenerative disease of the lumbar spine. Social security records show that the appellant was determined to be disabled due to his lumbar spine disability in December 1999. The appellant has submitted statements from himself and his wife asserting that his back pain has been constant since his injury in 1973. He has also submitted buddy statements supporting the fact of his injury. Service records show that the appellant injured his back in August 1973 while on ACDUTRA. He was treated at Newport Navy Base. A report of history in January 1974 shows that the appellant noted recurrent back pain. Another report of history in May 1986 shows that the appellant denied recurrent back pain. Upon examination in May 1986 the appellant’s spine was normal. Social security records contain the appellant’s account of his back disability, in which he states that his back pain began in 1991 after an injury at work (K-mart manager). Medical notes from a 1993 visit for back pain also note a history of a back injury at work in 1991. The appellant received a VA examination in March 2014. The examiner noted diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. The examiner opined that the appellant’s disabilities are less likely than not related to his ACDUTRA, with the stated rationale that the appellant’s disabilities stem from his work injury in 1991. The Board finds that the evidence of record weighs against a finding that the appellant’s current degenerative arthritis of the spine and intervertebral disc syndrome are related to his ACDUTRA. While the appellant and his wife have stated that his back pain was constant since the injury in 1973, the appellant’s denial of recurrent back pain in May 1986 as well as his reports in social security records that his back pain began in 1991 contradict such statements. Therefore, the statements are of low probative value. The first record of back pain or treatment is after the appellant’s 1991 injury, and all subsequent medical records attribute the disabilities to that injury. The appellant himself stated in his application for social security disability that his back pain began in 1991. In sum, there is no reliable evidence linking the appellant’s current lumbar spine disabilities to his ACDUTRA. The most probative evidence, including medical treatment records, attributes his disabilities to his work injury in 1991. Service connection for a lumbar spine disability is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.