Citation Nr: 20007301 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-21 150 DATE: January 28, 2020 REMANDED Service connection for a back disability is remanded. Service connection for a neck disability is remanded. REASONS FOR REMAND The Veteran served in the Air Force National Guard/Reserve from July 16, 1999 until August 16, 2012. The Veteran had active service from October 1999 until January 2000 and May 2002 until August 2002. The Veteran also served in Guard/Reserve active duty from April 30, 2007 until May 4, 2007; from July 23, 2010 until July 27, 2010; and from March 7, 2011 until March 11, 2011. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Veteran testified at a hearing before the undersigned. A transcript of the proceeding is of record. 1. & 2. Service connection for a back disability and neck disability are remanded. Service connection can generally be granted if there is evidence of a current disability that is related to an event or injury incurred during active military service. Service in the National Guard or Reserve component of a military branch is not automatically considered active military service. The in-service event or injury will qualify depending on the particular duty status at that time. 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. § 101 (22); 38 C.F.R. § 3.6 (c)(1). Inactive duty for training (INACDUTRA) is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. Id. Active service also includes authorized travel to or from such duty or service. 38 U.S.C. § 106 (d); 38 C.F.R. § 3.6 (e). The Veteran may be service-connected for a disability if it is shown that disability (disease or injury) had its onset or was aggravated during a period of ACDUTRA or is related to an injury incurred or aggravated during a period of ACDUTRA or INACDUTRA. Other than the alleged motor vehicle accident in 2010, there is no medical or lay evidence of an injury related to her back or neck that occurred during her period of INACDUTRA. In fact, the Veteran reported that she had motor vehicle accidents in the mid-1990s, September 2001 and in June or July 2010. She stated that she sustained back and neck injuries since the first motor vehicle accident (MVA), and that her physical duties in military service had aggravated her pre-existing disabilities. See September 2001 private treatment record (Sept 2001 accident), January 2005 private treatment record (MVA in 1990s), and November 2019 correspondence (2010 MVA). She stated that the 2010 motor vehicle accident occurred on her way to military training in 2010. See 38 U.S.C. § 106(d)(1); Wood v. Nicholson, 2006 U.S. App. Vet Claims LEXIS 654 (July 14, 2006) (indicating that an injury while traveling to inactive duty training is considered inactive duty training at the time the injury occurred); see also Watkins v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 1220 (July 15, 2019) (reminding the Board that ACDUTRA included authorized travel to or from duty training). The Veteran’s in-service physical examination report dated in May 2003 reflects that the Veteran had a scar in the lower back. Moreover, an annual medical certificate dated in May 2001 reflects that the Veteran reported that she was treated for back pain and neck spasms in March 2001 and received disability compensation. Furthermore, a June 2002 in-service treatment record reflects that the Veteran complained of neck and back pain and noted that they were present since the MVA in 1993 or 1994. Therefore, the Veteran’s military treatment records reflect that the Veteran may have had a back and/or neck disabilities prior to entering periods of ACDUTRA and/or INACDTURA. A December 2017 correspondence reflects that the Veteran served in Guard/Reserve active duty from April 30, 2007 until May 4, 2007; July 23, 2010 until July 27, 2010; and March 7, 2011 until March 11, 2011. However, the evidence currently of record does not specify all dates when the Veteran was on ACDUTRA and INACDUTRA during her period of service from July 16, 1999 until August 16, 2012. As such, the Board finds that, in order to properly adjudicate this claim on appeal, all periods of ACDUTRA and INACDUTRA must be verified. This should also include any available evidence as to duties performed. Through the Veteran’s medical records, the Veteran has shown that she had a pre-existing back disability prior to some periods of ACDUTRA and INACDUTRA and that her disabilities had worsened over time. The Veteran was afforded VA examinations and opinions regarding her back and neck disabilities; however, an adequate opinion regarding whether her neck and disabilities were aggravated by periods of ACDUTRA were not provided. For example, in November 2013, the VA examiner opined that the Veteran’s low back was not aggravated beyond its normal history by service because the back injury was due to her three MVAs. However, the VA examiner did not provide an adequate rationale as to whether her back injury could have been permanently worsened and caused by her line of duties, i.e., physical duties, during ACDUTRA as stated by the Veteran. Moreover, the VA examiner in May 2017 noted that the Veteran’s cervical spine sprain was not aggravated by military service because there was no treatment for cervical spine condition found in the service treatment records during 2002. Similarly, his opinion did not address whether the Veteran’s pre-existing cervical disability could have been permanently worsened and caused by her line of duty during ACDUTRA as stated by the Veteran. Because this is a claim based on aggravation of a pre-existing condition during periods of ACDUTRA, the Veteran typically must show that the condition worsened beyond its natural progression during the period of training and that the worsening was caused by the training. Smith v. Shinseki, 24 Vet. App. 40 (2010). Nevertheless, VA has attempted to obtain a medical opinion here and the opinions to date are inadequate; therefore, another remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran reported that she had back and neck pain and disabilities since the first MVA in the mid-1990s but did not get in-service treatment due to her fear that she would lose her career. See hearing transcript. Therefore, relying on the absence of evidence in medical records without regard for lay statement to provide a negative opinion is contrary to established case law, and such opinion in May 2017 is, therefore, inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In light of the foregoing, the claim must be remanded for an addendum opinion with an adequate rationale regarding the etiology of the Veteran’s diagnosed neck and back disabilities. The matters are REMANDED for the following action: 1. Obtain a legible copy of the Veteran’s police report regarding the motor vehicle accident that occurred in 2010 from the Veteran (the Veteran alleged that she was traveling to duty training when she sustained injuries because of this MVA). The December 2017 Military History (VADIR) reflects that the Veteran had active service in the National Guard from July 23, 2010 until July 27, 2010; however, because the copy of the police report is illegible, it is unclear when the MVA occurred in 2010. 2. Obtain an authorization for release of information and attempt to obtain disability compensation records from March 6, 2001 until March 19, 2001. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran. 3. Contact all appropriate sources in order to verify the specific dates when the Veteran was on ACDUTRA from January 19, 2000 until May 25, 2002; from September 1, 2002 until April 29, 2007; from May 5, 2007 until July 2010 and INACDUTRA from June 1, 2010 until July 22, 2010. The Veteran is free to offer evidence she may have concerning this reserve training. If necessary, the Veteran should be requested to provide any assistance in obtaining this clarifying information. All verified dates of service and all responses received should be documented in the claims file. Records concerning service merely denoting the amount of points she obtained, including cumulatively, are not helpful in this regard insofar as determining exactly when the Veteran was on ACDUTRA and INACDUTRA. If these records cannot be located, the Agency of Original Jurisdiction (AOJ) must specifically document the attempts made to locate them and notify the Veteran. 4. Obtain a VA opinion regarding the Veteran’s neck and back disabilities. The examiner is asked to assess the Veteran (if necessary), review the record and provide opinions as to the following: a) Whether the Veteran had a preexisting neck or back disabilities prior to entering periods of ACDUTRA. Attention is invited to: the Veteran’s service treatment records (VBMS, document labeled STR-Medical, receipt date 1/10/2013, pages 43, 63, 69, 78 out of 93 pages; VMBS, document labeled STR-Medical, receipt date 01/10/2013, pages 32, 34 out of 61 pages, VBMS, document labeled STR-Medical, receipt date 12/10/2013, page 1 out of 78 pages; VBMS, document labeled STR, receipt date 12/10/2013, page 26 out of 57 pages) and Veteran’s private and VA treatment records (VBMS, document labeled Medical Treatment Record- Government Facility, receipt date 09/17/2015, pages 8, 13, 14, 15 and 16 out of 36 pages; VBMS, document labeled Medical Treatment Record- Government Facility, receipt date 09/17/2015, page 29 out of 36 pages; VBMS, document labeled Medical Treatment Record- Government Facility, receipt date 09/17/2015, pages 3, 29, 31 out of 47 pages; VBMS, document labeled Medical Treatment Record- Government Facility, receipt date 09/17/2015, pages 27 out of 38 pages). b) If so, is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s pre-existing neck disability and back disability underwent a permanent increase in disability beyond the natural progress of the disease during a period of ACDUTRA from July 1999 until August 2012 (i.e., caused by the Veteran’s physical duties that occurred during boot camp)? c) Also, after receiving a legible copy of the police report, if it is found that the Veteran sustained a neck disability or back disability in June 2010 or July 2010 on the way to authorized duty training (as the Veteran had alleged), opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s current neck and back disabilities had its onset or is related to the motor vehicle accident that occurred on the way to duty training for ACDUTRA and/or INACDUTRA? The Veteran’s lay contentions must be considered and weighed in making the determination as to whether a nexus exists between the current disorders, if any, and service. The examiner is asked to provide the underlying reasons for any conclusions reached. The examiner is also reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee, 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.