Citation Nr: 20021409 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 17-22 676 DATE: March 25, 2020 ORDER Service connection for a cervical spine condition is granted. FINDING OF FACT The evidence is at least in balance that the Appellant’s cervical spine condition is at least as likely as not caused and aggravated by injuries in the line of duty during periods of active duty for training. CONCLUSION OF LAW The criteria for service connection for a cervical spine condition have been met. 38 U.S.C. §§ 101, 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Appellant served on active duty for training (ACDUTRA) from February 1978 to June 1978, from November 1990 to January 1991, and in April 2011, with additional periods of ACDUTRA and inactive duty for training (INACDUTRA) through 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Historically, a February 2015 rating decision initially denied the claim of service connection. During the one-year period after issuance of the rating decision, new and material evidence was received and the Veteran’s claim was readjudicated in the July 2015 decision, to which the Veteran filed a notice of disagreement. 38 C.F.R. § 3.156(b). In November 2019, a Board hearing was held before the undersigned. A transcript of the hearing is of record. Entitlement to service connection for a cervical spine condition is granted. The Appellant contends he is entitled to service connection for his cervical spine condition based on onset during a period of ACDUTRA in 1991 or aggravation of a preexisting disability during a period of ACDUTRA in April 2011. The Appellant served with the National Guard and the Appellant’s service personnel records reflect that he did not have any active duty service. Additionally, the appellant has not previously established service connection for a period of ACDUTRA or INACDUTRA. As the Appellant has not established “veteran” status, no presumptions, including the presumptions of soundness and aggravation, are applicable. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995); see also Smith v. Shinseki, 24 Vet. App. 40 (2010). Accordingly, in order to establish aggravation for an injury during April 2011 ACDUTRA, the appellant has the burden by benefit of the doubt standard of showing a permanent increase in disability during the relevant period of ACDUTRA, and that such permanent increase was beyond the natural progress of that disability. See Donnellan v. Shinseki, 24 Vet. App. 167, 173-75 (2010). Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. § 1110, 1131. In the context of Reserve or National Guard service, the term active military, naval, or air service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21), (24); see also 38 C.F.R. § 3.6. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In the present case, the Board finds the Appellant has a current disability of the cervical spine. A February 2015 VA examination shows the Appellant has been diagnosed with a cervical strain, degenerative disc disease of the cervical spine, and cervical radiculopathy. Additionally, a March 2015 contract examination shows a diagnosis of cervical spine stenosis with acute myofascial cervical strain and disc herniation. Regarding the second element, the Board finds the record shows the Appellant complained of neck pain during service. Specifically, during the March 2015 contract examination and the November 2019 Board hearing, the Appellant reported that he first injured his neck in 1991 at Fort Benning when he began experiencing pain in his neck after jumping out of a tractor. As his service personnel records indicate he was on active duty at Fort Benning from November 1990 to January 1991, the Board finds his statements regarding experiencing an injury to be competent and credible; thus, there is evidence of a cervical spine injury during a period of ACDUTRA. Additionally, a Line of Duty Investigation revealed the Appellant injured his cervical spine while exiting a vehicle in April 2011, during a period of ACDUTRA, and aggravated his cervical spine disability. As for the nexus, the Board notes there are four medical opinions of record. Evidence against finding a nexus between the Appellant’s cervical spine condition and his service includes February 2015 and July 2015 VA examinations. On the February 2015 VA examination, the examiner concluded that there was clear and unmistakable evidence that the Appellant’s cervical spine condition preexisted his service, noting that the Appellant had surgical fusion of the cervical spine in 2010 and had a flare of his neck pain while on active duty in April 2011. The examiner also opined that the Appellant’s cervical spine condition was not aggravated beyond its natural progression by an in-service event, injury, or illness because acute flares and chronic myofascial pain in the cervical spine is expected to intermittently occur in the natural course of the condition considering the extent of the degenerative changes in the cervical spine prior to the surgery. On a July 2015 VA examination, another VA examiner opined that the Appellant’s cervical spine condition clearly and unmistakably preexisted service and was clearly and unmistakably not aggravated by his service, noting that she concurred entirely with the rationale provided by the February 2015 VA examiner. The Board finds these opinions inadequate as they are erroneously based on a finding that the Appellant’s cervical spine condition preexisted his service and do not consider the initial injury in 1991. Thus, they are afforded no probative weight. Evidence providing a positive nexus between the Appellant’s cervical spine condition and his service includes a March 2015 contract examination and a September 2015 private opinion. In the March 2015 contract examination, the examiner noted that the Appellant reported that his symptoms onset in 1991 at Fort Benning. She noted that the Appellant had a flare-up in 2008 and underwent surgery on his cervical spine in 2010. She also noted that the Appellant reinjured his neck in 2011 during annual training when he jumped out of a truck with his helmet on and felt a pop in his neck. Following physical examination of the Appellant and a review of the claims file, the examiner opined that the Appellant’s cervical spine condition was at least as likely as not incurred in or caused by his in-service injury, noting that the Appellant’s medical records document a surgical procedure for a neck condition and his service treatment records document aggravation of the neck while on active duty. The Board places great probative weight on this opinion as it reflects knowledge and consideration of the Appellant’s medical history, including the initial injury during a period of ACDUTRA in 1991, and his lay statements regarding his in-service neck injuries. On the September 2015 evaluation, the physician noted that the Appellant’s claims file was not reviewed but that the Appellant provided the medical history of his cervical spine condition. The physician then provided the following opinion, “I think that [the Appellant] suffered an exacerbation of his pre-existing cervical spine condition in 2010 prompting medical evaluation. He had another exacerbation while on Reserve duty in 2012.” However, the Board finds this opinion inadequate as it is stated in speculative terms and was not supported by any explanation. Therefore, the opinion has been afforded no probative weight. In light of the foregoing, the Board concludes that the Appellant has met his burden of proof, as the evidence is at least in equipoise as to whether the Appellant has a current cervical spine disability; that he suffered an in-service injury to his cervical spine during a period of ACDUTRA in 1991 and that his cervical spine disability was permanently aggravated beyond its natural progression by an injury during a period of ACDUTRA in April 2011; and, based on the March 2015 contract examination, that there is a nexus between his current disability and such injury. Consequently, after resolving all doubt in favor of the Appellant, the Board finds that service connection for a cervical spine condition is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As the decision above grants service connection for a cervical spine condition arising during the Appellant's period of ACDUTRA, the Appellant has established a service-connected disability during his ACDUTRA service and enjoys Veteran status for any disability arising from such service. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Jiggetts 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.