Citation Nr: 20043963 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 09-36 702 DATE: June 30, 2020 ORDER Entitlement to service connection for a thoracolumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s current thoracolumbar spine disability is related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army Reserves from November 1983 to September 2005. Her service included various periods of ACDUTRA and INACDUTRA, including a period of ACDUTRA from March 1984 to July 1984, and a period of active service from July 24, 2004 to August 6, 2004. This matter comes before the Board of Veterans’ Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In March 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge (VLJ), and a transcript of that hearing is of record. In a September 2012 correspondence, the Veteran was advised that the VLJ who conducted the hearing was no longer with the Board and she was afforded the opportunity to have a hearing before another VLJ. The Veteran requested another hearing, and in May 2017, the Veteran testified at a Travel Board hearing before the undersigned VLJ. A transcript of that hearing is of record. The case was last before the Board in April 2018, and has returned to the Board for further appellate review. 1. Entitlement to service connection for a thoracolumbar spine disability The Veteran seeks service connection for a thoracolumbar spine disability. During her May 2017 Board hearing, the Veteran testified that she injured her back carrying another soldier on her back during physical training in 1991 while on ACDUTRA. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection there must be: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). “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 in or aggravated in the line of duty; and any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty in the Armed Forces performed by Reserves for training purposes. 38 U.S.C. § 101(22)(A); 38 C.F.R. § 3.6(c)(1). Service connection may be granted for disability resulting from a disease or injury incurred while on ACDUTRA. 38 U.S.C. § 101(24). INACDUTRA is defined as duty (other than full-time duty) prescribed for Reserves by the Secretary concerned under 37 U.S.C. § 206. 38 U.S.C. § 101(23)(A); 38 C.F.R. § 3.6(d)(1). Service connection may be granted for injuries incurred while on INACDUTRA, but not for disease. 38 U.S.C. §§ 101(24). Upon review of the record, the Board concludes that the preponderance of the evidence is against a finding that the Veteran’s current thoracolumbar spine disability was incurred in or caused by service. The Veteran’s service treatment records reveal the Veteran complained of back pain in August 1991, during a period of ACDUTRA, and was assessed as having a muscle spasm. A November 1995 treatment record shows a history of the Veteran suffering an injury to her back during a motor vehicle accident in August 1993 and again in October 1994, with further injury in February 1995. Thereafter, the Veteran denied recurrent back pain or any back problem in a June 2001 report of medical history. In December 2003, the Veteran requested to be placed on a permanent profile due to mechanical back pain. The Veteran stated that she suffered from back pain since 1995, and that it recently worsened after falling from a lifeguard chair. The Veteran’s private treatment records reveal that the Veteran endorsed back pain in November 1998. An August 200l private treatment record also reveals the Veteran complained of chronic lower back pain dating to injuries she sustained in motor vehicle accidents. The Veteran does not allege, and the evidence does not suggest, that her motor vehicle accidents or the fall from a lifeguard chair occurred during ACDUTRA or INACDUTRA. In connection with her service connection claim, the Veteran underwent a VA examination in September 2011. The Veteran reported that she injured her back during service and was diagnosed with a lumbar sprain in the 1990’s. The examiner found that there was no objective evidence the Veteran had a diagnosis of a chronic lower back condition. The examiner noted that the Veteran was inconsistent in her history, the examination yielded unreliable/inconsistent results, and the Veteran’s subjective complaints during the examination appeared out of proportion with to the objective exam findings. During a May 2014 VA examination, the Veteran again reported that she has experienced low back pain since 1991, when she injured her back during training in service. The examiner opined that the Veteran’s claimed back condition is less likely as not incurred in or caused by service. The examiner explained that there is no evidence of a chronic low back problem in service. In October 2019, an addendum opinion was obtained to determine whether the Veteran’s thoracic spine dextroscoliosis and lumbar spine levoscoliosis noted in the May 2014 private treatment record are diseases or defects. After a review of the record, the examiner found no evidence of a chronic back problem in service and that there is no clear reason for Veteran’s scoliosis. In support of her findings, the examiner explained that according to the American Association of Neurological Surgeons (AANS), about 80 percent of scoliosis cases have no identifiable cause. In this case, the examiner indicated that there is no specific trauma during active service that could have resulted in traumatic scoliosis (occurring as a result of fractures of the spine); therefore, we must consider Veteran’s scoliosis as idiopathic since cause is unknown. The examiner further explained that the Veteran’s spine scoliosis is most likely the result combination of aging, genetics, and deterioration of the spine that develops over years of usage and loading of the lumbar spine. As such, the examiner concluded that there is no objective evidence that the Veteran’s scoliosis is due to service or aggravated beyond the natural progression by service. There is no competent medical opinion to the contrary. To the extent the Veteran believes that her current thoracolumbar spine disability is related to service, as a lay person, she has not shown that she has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of spine disabilities are matters not capable of lay observation and require medical expertise to determine. Thus, the opinion of the Veteran regarding the onset and etiology of her current thoracolumbar spine disability is not competent medical evidence. The Board finds the opinion of the VA examiner to be significantly more probative than the Veteran’s lay assertions. In sum, the Board concludes that the most probative evidence of record is against finding that the Veteran’s current thoracolumbar spine disability was incurred in or caused by service, and the claim is denied. In reaching the above conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lance, Law Clerk 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.