Citation Nr: 21062496 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-46 015 DATE: October 7, 2021 ORDER New and material evidence has been received to reopen the claim of service connection for a back disability; to that extent the appeal is granted. REMANDED Entitlement to service connection for a back disability is remanded. FINDINGS OF FACT 1. In an October 1994 rating decision, the Regional Office (RO) denied service connection for a low back disability. The Veteran was notified of the decision, but did not appeal. It is the last final disallowance of the claim. 2. New evidence has been received since the October 1994 final rating decision which is not cumulative and relates to unestablished facts necessary to substantiate the claim for service connection for a back disability. CONCLUSION OF LAW 1. New and material evidence has been submitted since the final October 1994 rating decision; accordingly, the claim for service connection for a back disability is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the National Guard from June 1981 to September 1981, with additional periods of active duty for training (ACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a back disability Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 19.20, 19.21, 19.22, 19.52. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The U.S. Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In an October 1994 rating decision, the RO denied the Veteran's original claim for entitlement to service connection for a low back disability, because the evidence of record did not demonstrate the incurrence or aggravation of a chronic disease or injury of the low back during the June 6, 1992 to June 20, 1992 period of active duty for training. That decision is final. Since the Veteran's last prior denial in October 1994, the record includes a December 2020 Board testimony in which the Veteran testified that his injury in 1990 was not an injury to his back but to his left side, below the ribs. The Veteran expressed that he injured his back in 1992 while on active duty for training and that his back pain has continued after his injury. The Board finds that this evidence is new as it was not previously of record and tends to relate to an unestablished fact necessary to substantiate the underlying claim of service connection. The December 2020 Board testimony will be presumed credible for the purpose of reopening the claim. Consequently, the claim of entitlement to service connection for a back disability is reopened. REASONS FOR REMAND 1. Entitlement to service connection for a back disability is remanded. Service connection may be granted if there is a disability resulting from personal injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish service connection on a direct-incurrence basis, the evidence must show: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). "In order to qualify for VA benefits, a claimant must demonstrate that he, she, or the party upon whose service the claimant predicates the claim was a 'veteran.' " Cropper v. Brown, 6 Vet. App. 450, 452 (1994). A "veteran" for VA benefits purposes is "a person who served in the active military, naval, or air service, and who was discharged or released there from under conditions other than dishonorable." 38 U.S.C. § 101(2); 38 C.F.R. § 3.1(d). The term "active military, naval, or air service" includes "active duty, which is full-time duty in the Army, Navy, Marine Corps, Air Force, or Coast Guard, other than "active duty for training." 38 U.S.C. § 101(24). Additionally, active service includes "any period of active duty for training (ACDUTRA) if "the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24). The term "active duty for training" includes certain full-time duty performed in the ARNG. 38 U.S.C. § 101(22); see also 38 C.F.R. § 3.6(c)(4) (2018) When a claim for benefits is based on a period of ACDUTRA, there must be evidence that the claimant became disabled because of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. See 38 U.S.C. §§ 101(2), (22), (24); see also 38 U.S.C. § 1110; Paulson v. Brown, 7 Vet. App. 466, 470 (1995). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the claimant would not achieve veteran status. 38 U.S.C. § 101(24); see 38 U.S.C. §§ 101(2), 1110; Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Active service also includes "any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C. § 101(24). INACDUTRA includes duty, other than full-time duty, performed for training purposes by certain Reservists and National Guardsmen. A claimant whose veteran status is based on INACDUTRA must show that the claimant has a disability resulting from an injury that was incurred or aggravated in the line of duty. The principal difference between ACDUTRA and INACDUTRA for VA compensation purposes is that VA may pay compensation benefits for a disease or injury incurred or aggravated during ACDUTRA; however, VA may only pay compensation for an injury incurred or aggravated during INACDUTRA. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). 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 to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Before veteran status can be established for a period of such service, it must first be established that a claimant was disabled from a disease or injury incurred or aggravated in line of duty during ACDUTRA, or that he or she was disabled from an injury incurred or aggravated in line of duty during INACDUTRA. The presumption of soundness does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Paulson, 7 Vet. App. at 471. Even for veterans who have achieved "veteran" status through a prior period of active service and now claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). In other words, there must be an entrance examination prior to the period of ACDUTRA (or INACDUTRA) in which the veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Id. Moreover, if the claimant has not achieved "veteran" status through a prior period of service, then the presumption of soundness does not attach to a period of ACDUTRA (or INACDUTRA), no matter if an examination occurred prior to the period of ACDUTRA (or INACDUTRA). Id. In order for a claimant to establish veteran status under 38 U.S.C. § 101(24)(B) based on aggravation in the line of duty, a claimant must show that he or she experienced a permanent increase in disability beyond the natural progress of that disease or injury during a period of ACDUTRA. Donnellan v. Shinseki, 24 Vet. App. 167, 172-74 (2010) ("'aggravated' in section 101(24)(B) carries the same definition as 'aggravated' in [38 U.S.C. § 1153] and, therefore, should include both elements of aggravation discussed in section 1153"). Just establishing that a disability worsened during service is not enough, since the presumption of aggravation does not apply where a claim is based on a period of ACDUTRA or INACDUTRA. See Smith, 24 Vet. App. at 48 n.7. Furthermore, temporary or intermittent flare-ups of a pre-existing condition during service are not sufficient to be considered aggravation of the condition, unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Additionally, the presumption of service connection for certain chronic disease, such as arthritis or hypertension, manifesting to a degree of 10 percent within one year following discharge from service, is not available for claims based on periods of ACDUTRA. See 38 C.F.R. § 3.307(a)(1). Here, the Board notes that the Veteran is service connected for a left ankle disability, which confers veteran status only for his ACDUTRA period from June to September 1981. See Hill v. McDonald, 28 Vet. App. 243 (2016) (service connection establishes "veteran status," but only for the period of ACDUTRA or INACDUTRA during which the service-connected disability was incurred). As noted above, for veterans who have achieved "veteran" status through a prior period of service and claim a disability was incurred or aggravated during a later period of ACDUTRA, the presumption of soundness applies only when the veteran received an entrance examination for that period and the claimed disability was not noted. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). Here, a February 1992 Report of Medical Examination for the period of ACDUTRA indicated no low back disability; therefore, the Veteran is presumed sound and this presumption must be rebutted by clear and unmistakable evidence to the contrary. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012). A review of the Veteran's National Guard treatment records shows that in June 1992, while on active duty for training, the Veteran strained his lower back while picking up a duffle bag. The claims file contains a Workers' Compensation opinion and order that indicated that in August 1990, the Veteran sustained a non-disabling low back strain. On August 11, 1990, an x-ray showed remarkably unremarkable spine. In March 1991, the Veteran complained of occasional back pain. In May 1992, the Veteran complained of pain and stiffness in his back and the x-rays showed no significant change from August 1990. It was noted that the Veteran suffered increased back pain on June 19, 1992 while in the National Guard, packing his duffle bag. It was noted that a June 29, 1992 MRI showed mild posterior bulging of the L4-5 disc in the midline which impresses the ventral surface of the thecal sac. In the report, it was noted that Dr. Knoebel reported that with reasonable medical probability, the Veteran's current complaints in regard to his low back have not been caused by or permanently aggravated by the August 1990 incident as the x-rays were normal at the time. He stated that the Veteran has definitely had a recurrence of his low back condition in June 1992 while in the National Guards summer camp which has a known incidence of increased low back pain. The Board finds that a VA examination is warranted in order to determine the nature and etiology of the Veteran's back disability. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Schedule the Veteran for a VA examination in order to determine the nature and etiology of the Veteran's back disability. The claims file to include a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. After reviewing the record, the examiner should provide an opinion, with supporting rationale, as to the following: Whether the Veteran's back disability clearly and unmistakably (obviously, manifestly or undebatably) pre-existed his period of ACDUTRA from June 1992? If yes, was the Veteran's back disability clearly an unmistakably NOT aggravated (i.e., permanently increased in severity) by his period of ACDUTRA from June 1992? The examiner is advised that clear and unmistakable evidence means evidence that cannot be misinterpreted and misunderstood, i.e., it is undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered aggravation in service. If the examiner finds that the Veteran's back disability did not preexist service, the examiner is asked to address whether it at least as likely as not (a 50 percent probability or greater) that the Veteran's back disability manifested during ACDUTRA or is otherwise related to ACDUTRA to include as related to the Veteran's back injury in June 1992? The examiner is advised that the Veteran is competent to report injuries and symptoms, and his reports must be considered and discussed in formulating the requested opinions. If his reports are discounted, the examiner should provide an explanation for doing so. A detailed rationale for the opinion must be provided. The examiner is 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. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. 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.