Citation Nr: 21067883
Decision Date: 11/05/21	Archive Date: 11/05/21

DOCKET NO. 19-31 805
DATE: November 5, 2021

ORDER

Entitlement to service connection for a cervical spine condition is denied.

FINDING OF FACT

The appellant's neck disorder pre-existed active duty for training and was not aggravated by service. 

CONCLUSION OF LAW

The criteria for service connection for a cervical spine condition have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant had no active service other than a period of active duty for training (ACDUTRA) from July 25 to August 14, 1953, with other periods of inactive duty for training (INACDUTRA). He was discharged from the Marine Corps Reserve in October 1953. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, 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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995).

Entitlement to service connection for a cervical spine condition

The appellant seeks service connection for a cervical spine condition which he contends is related to service. Specifically, he claims that his condition was aggravated by service, to include a ruck march conducted in July 1953 while at Marine Corps Platoon Leaders Course (PLC).

Active-Duty Service

As a threshold matter, an applicant must be an eligible veteran to be eligible for VA benefits. A veteran is defined as a person who served in the active military, naval, or air service and who was discharged or released 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; any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and any period of inactive duty for training 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(2), 24; 38 C.F.R. § 3.6(a).

In this case, there is no indication that the appellant ever served on active duty. Of note, while the evidence of record does include personnel records from 1952 to 1953, these are specifically characterized as ACDUTRA and INACDUTRA service. The records indicate while enrolled in college, he served as a member of the Marine Corps Reserve from December 1952 to October 1953. This includes a three-week period of ACDUTRA from July 25 to August 15, 1953, which is the period the appellant alleges the in-service aggravation occurred. As such, the appellant does not have status as a Veteran on this basis. 

Service Connection Based on Service in the Marine Corps Reserve

As such, the only question is whether the appellant may establish Veteran status based on his service in the Marine Corps Reserve. Reserve service generally means active duty for training (ACDUTRA) and/or inactive duty for training (INACDUTRA). ACDUTRA is full-time duty for training purposes performed by Reserve members. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505; 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d).

In order to establish status as a Veteran based upon a period of ACDUTRA, a claimant must establish that he 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 line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6(a). The fact that a claimant has established status as a Veteran for purposes of other periods of service does not obviate the need for him to establish that he also is a Veteran for purposes of the period of ACDUTRA if his claim for VA benefits is premised on the period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998).

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). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Id. 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., at 45-46. 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.

After a review of the evidence, the Board concludes that, while the appellant has a current diagnosis of a neck disorder, the preponderance of the evidence weighs against finding that this disorder began during periods of ACDUTRA or INACDUTRA or is otherwise etiologically related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363. 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304.

As an initial matter, the Board reiterates that the presumption of soundness does not apply to periods of ACDUTRA. Thus, entitlement to service connection turns not on aggravation of the Veteran's neck disorder, but on whether the Veteran's neck disorder can be attributed to service.

Here, the Board acknowledges that the appellant has a present diagnosis of cervical spine condition. The record contains a September 2017 private treatment note which states that the appellant has degenerative changes of the cervical spine. 

Next, service treatment records indicate that the appellant entered ACDUTRA with pre-existing neck issues. On July 25, 1953, he reported for ACDUTRA at Marine Corps Base Quantico for Platoon Leaders Course (PLC) the summer before his Junior year of college. His July 27, 1953 medical examination includes a note stating that he has "had trouble with his neck since it was injured 11 years ago." He reported breaking three vertebrae in his cervical spine in June 1941. Further, x-rays of the neck showed residual scoliosis of "the cervical spine but no evidence of old or recent injury." The entry examiner's opinion was that the appellant "should be dropped from the PLC program" due to the pre-existing neck condition. 

The appellant reported three times to sick call in August 1953 for his neck "acting up." That same month, the Marine Corps Schools Surgeon determined that he was found not physically qualified to continue training due to his pre-existing neck injury. There was no indication that he continued training or that his neck was aggravated. The Surgeon found that his neck condition would be temporary and could be resolved if he sought proper treatment while on INACDUTRA. 

The first evidence of a neck condition post-service comes in a September 2017 private treatment note. The appellant's private physician submitted a letter indicating that the appellant first underwent treatment in 2012. As such, the first indication of a neck condition occurs nearly 59 years after his period of ACDUTRA and his discharge from the Marine Corps Reserve. As such, continuity of symptoms has not been shown based on the clinical evidence. 38 C.F.R. § 3.303. 

Next, despite lack of continuous symptoms, service connection may still be warranted if the evidence otherwise indicates a relationship between the appellant's current disorder and his active-duty service. However, the competent evidence fails to establish a nexus between active-duty service and the appellant's current neck disorder.

The appellant submitted a September 2017 letter from his physician regarding his neck disorder. The private physician wrote that the appellant has "extensive records indicating that he began receiving treatment for neck issues during the time of his military service", however, that imaging done since 2012 could not "visualize any of his imaging either before his injury into the military or during the time that he was active duty." Further, the physician notes that in their experience, "training and combat cause residual strain" to the cervical spine with accelerated degeneration. Opining that his service "at least as likely as not" directly led to his symptoms, the physician could not state "with certainty" the etiology. While the physician indicates a review of some of the record, they reference periods of active duty, training and possible "combat" that generally would cause strain on the neck. The physician does not reference specific incidences or records in service, nor outline when these periods of active duty occurred. Regardless, such periods of active duty are not supported by the record. While the record contains statements from the appellant that he is a Korean War Veteran, personnel records confirm that the extent of his service is as a member of the Marine Corps Reserve from December 1952 to October 1953, with the lone period of ACDUTRA. Thus, the Board finds this opinion to be of no probative value. 

As discussed, the medical treatment records indicate the appellant was diagnosed with a cervical spine disorder in 2012. VA examinations were scheduled in November 2017 and August 2019, however, the appellant failed to report to both appointments despite being notified. In this respect, the duty to assist is a two-way street. A claimant may not passively wait for assistance in building a claim, but rather must actively assist VA in assessing his disabilities, for example, attending examinations as scheduled which may provide a better understanding of the disability claimed. See Wood v. Derwinski, 1 Vet. App 190, 193 (1991). In short, the Veteran was given the opportunity to aid VA in developing his claim but failed to do so. At this point, the Board finds it would be futile to remand the claim for similar development. 

In arriving at these conclusions, the Board has considered the statements made by the appellant asserting a causal connection between his neck disorder and active-duty service. Specifically, the Board notes the appellant's contention that his neck disorder was caused by a ruck march incurred during a period of ACDUTRA in July 1953. The Board further notes the appellant has submitted an article dated February 1954, which reports that two Marine officer candidates died of sunstroke during a hike on July 20, 1953, while at PLC. Here, while the appellant attempts to relate his current neck injuries to a story regarding heat casualties, it is also apparent from the record that he did not arrive at PLC until July 25th  five days after the claimed incident. Nevertheless, while lay statements may be competent on a variety of matters concerning the nature and cause of disability, etiology of a disorder is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

In the present case, the appellant is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause or aggravation of his neck disorder, especially given that the evidence fails to demonstrate symptoms after the original period of ACDUTRA, or any in-service incident, illness, or injury to which such a condition may be presently linked. 

The Board concludes that the weight of the evidence is against the claims for service connection and there is no other doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. McDonald