Citation Nr: 21003472 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 07-34 626 DATE: January 21, 2021 ORDER Entitlement to service connection for a back disability, to include the lumbar and thoracic spine, is denied. FINDING OF FACT The Veteran’s preexisting back disability was not aggravated beyond the natural progression of the disease by a qualifying period of service. CONCLUSION OF LAW The criteria for service connection for a back disorder to include the lumbar and thoracic spine are not met. 38 U.S.C. §§ 101 (21), (24), 1131, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.306 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from June 1979 to June 1983, and in the United States Army Reserve for periods between April 2002 and April 2004. See Defense Finance Accounting Statement, January 2020. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) July 2006 rating decision of the Agency of Original Jurisdiction (AOJ). In January 2014, the Board remanded the Veteran’s claims for additional development. Specifically, the Board requested that the AOJ confirm the dates of the Veteran’s reserve service, and if necessary, to obtain an addendum VA opinion regarding the etiology of the Veteran’s disability. A Board remand confers upon the Veteran the right to a certain degree of compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aires v. Peake, 22 Vet. App. 97, 105 (2008). The Board finds that the AOJ substantially complied with the January 2014 remand directives. The Board notes that the Veteran’s claim was remanded twice before, in January 2010 and March 2010. In February 2010 the Veteran appeared before the undersigned Veterans Law Judge at a Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. 1. Entitlement to service connection for a back disability The Veteran contends that her back disability was aggravated beyond the natural progression of the disease by a period of service. Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Turning to the substantive aspects of the Veteran’s claim, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). The Veteran was a member of the United States Army Reserve, and had periods of inactive duty training (INACDUTRA) and periods of active duty for training (ACDUTRA). Active military 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, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6 (a), (c), (d). The presumption of soundness, the presumption of aggravation, and presumption of in-service incurrence for certain chronic disabilities do not generally apply to periods of ACDUTRA and INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991); see also 38 U.S.C. §§ 1111; 38 C.F.R. § 3.304 (b); but see Hill v. McDonald, 28 Vet. App. 243, 250 (2016) ("once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA"). While service on active duty alone is sufficient to meet the statutory definition of veteran, service on ACDUTRA or INACDUTRA without more will not suffice. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Therefore, consideration of these presumptions for any ACDUTRA/INACDUTRA period is not appropriate. The described presumptions do not attach unless and until “veteran” status is established for any such period. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The law provides that a preexisting disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran is currently diagnosed with osteoarthritis in her spine, post laminectomy L5-S1. The Board finds that the first Shedden element necessary to establish service connection has been met. The Veteran does not contend that her current back disability was incurred in her period of active duty from 1979 to 1983. Records from the Veteran’s period of active duty include April 1980 complaint of chronic low back pain and reported leg length discrepancy with mild dextroscoliosis and she was seen by the orthopedic clinic for possible shoe lift. On consultation, spontaneous remission with no trauma was reported. Examination was negative and leg length discrepancy appears to have been noted to be not significant with no treatment indicated at the time. On May 1983 Report of Medical History, the Veteran denied a history of, or current, recurrent back pain. For the year 2002, DFAS has indicated that the Veteran’s reserve training dates include June 8, 2002 to June 9, 2002; July 13, 2002; September 13, 2002 (single day); September 16, 2002 (single day); October 5, 2002 to October 6, 2002; November 2, 2002 to November 3, 2002; and December 7, 2002 to December 8, 2002. She had additional period of reserve training between January 2003 to April 2004. The Veteran’s November 2001 reserve entrance history and examination do not show a back disorder or reports of back pain, and reserve service records show no specific injury during a period of ACDUTRA or INACDUTRA although they do reflect complaints of back pain with onset prior to her 2002 surgery and continuing since the surgery. These record also show that the Veteran was placed on physical profile following the August 2002 surgery. In this regard, in August 2002, the Veteran underwent a laminectomy due to pain in her back and legs later described as cauda equina compression and cauda equina syndrome with right S1 radiculopathy secondary to right L5-S1 lumbar disc extrusion with severe spinal stenosis; by history, it was noted that she had a history of severe right sciatica pain with the development of numbness in the perianal area and was noted to have been bedridden for the whole week prior to the surgery. Subsequent reserve service records reflect continued complaints of low back pain and foot numbness following the surgery. The evidence does not show, nor does the Veteran contend, that the back condition is caused by or due to an in-service incident. The Veteran has not asserted and the records do not show that the onset of her back condition was during a qualifying period of ACDUTRA or INACDUTRA in the line of duty. Further, in a December 2005 letter to VA, a family member of the Veteran, concurred and stated that the Veteran’s back condition “initially was not directly service related.” As such, the Veteran’s injury is not deemed to have happened while in service. However, as to the second and third Shedden elements necessary to establish service connection, the Veteran contends that her back disability which did preexist her periods of reserve service from September 2002 through April 2004, and subsequent to the August 2002 back surgery, aggravated her back condition. See December 2005 VA Form 21-4138 Statement in Support of Claim; October 2008 Decision Review Officer (DRO) Hearing Testimony; February 2010 Board Hearing Testimony. However, the etiology of a condition such as osteoarthritis of the spine is a complex medical determination that can only be made by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In October 2012, pursuant to the Board’s remand directives, the Veteran was seen for a VA examination to determine the etiology of her condition. The examiner concluded that it was less likely than not that her back injury was aggravated beyond the natural progression by her service in the reserve. The examiner based his opinion on the fact that the Veteran’s service treatment records (STRs) show that her unit not only provided a medical waiver in February 2002 to undergo the surgery, but after her procedure she was placed on activity restrictions. The Veteran has multiple times stated that no such restrictions were put into place and that she was prevented from recuperating. The Veteran’s family member made the same assertion in December 2005, stating that there was an “apparent lack of consideration” regarding her condition, which was “worsened” by her time on active duty. However, the objective evidence in the Veteran’s STRs show that for the vast majority of her service, and especially after her laminectomy, she was on activity restrictions. The examiner found that there was no evidence of an acute back injury during her service, and the Veteran does not make this claim. The examiner also noted that the Veteran’s medical treatment record from private physicians show that her back pain improved after her surgery, and did not worsen until late 2004, after she had separated from service. A private neurosurgeon, Dr. K., opined in September 2005 that the Veteran’s pain is secondary to scarring, which, as the VA examiner pointed out, is not acute. Based on the above, and an in-person examination of the Veteran, the examiner concluded that the Veteran’s back condition was not aggravated by her service in the Army Reserve. The Board notes that the Veteran has made multiple statements regarding whether her unit’s medical personnel followed the medical restrictions placed upon her by private physicians. For example, in a May 2006 letter to VA the Veteran stated that her medical restrictions “had been lost,” and she was “denied sick call request. Furthermore, her superiors allegedly “acted like [the Veteran] had no restrictions” and made her “participate full-time and full-gear.” However, a review of the Veteran’s STRs shows that post-operative restrictions are included, as well as the post-operative report from the private hospital where the Veteran underwent her procedure. There are multiple notes from her unit’s medical personnel stating that she should not participate in physical training, she should not bend, stoop, or lift. For example, a September 2003 physical profile, performed over a year after her August 2002 laminectomy, ordered that the Veteran’s condition limited her exercise to walking at her own pace and distance, said she could lift up to 10 pounds, “no PT/APFT,” and that there were no “functional activities” that she was able to participate in. A November 2003 physical profile noted that she “needs referral” to a surgeon, and in addition to the above limitations, the medic prohibited “prolonged standing” and “prolonged marching,” as well as over 15 different types of exercise. A January 2004 individual sick slip listed many of the same restrictions as noted above. The Board notes this is not an exhaustive list of all instances in the Veteran’s STRs relating to her physical limitations, but merely a descriptive one. However, the evidence shows that her unit’s officers and medical personnel took her complaints of pain, as well as her post-operative recuperation, seriously and gave her the necessary restrictions and limitations. It is not the Board’s position to determine the efficacy or propriety of the limitations and treatment suggested by the unit medical personnel. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). However, there is no objective medical evidence in the Veteran’s medical files that show the treatment and care during her active duty service was improper or otherwise aggravated her condition. The Veteran has submitted statements from private physicians treating her, notably Dr. A. and Dr. K. Neither doctor has opined on the etiology of the Veteran’s condition, and have instead focused on the treatment of her back and pain. The Board finds that the competent, probative medical evidence does not show that the Veteran’s service aggravated her back disability beyond the natural progression of the disease. For the reasons set forth above, the Board finds that the Veteran’s back disability, diagnosed as osteoarthritis post laminectomy L5-S1, was not incurred in service, or aggravated during a qualifying period of service including her periods of ACDUTRA or INACDUTRA while in the United States Army Reserve. Therefore, the Veteran’s claim of entitlement to service connection for a back disability of the lumbar and thoracic spine is denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, 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.