Citation Nr: 21006112 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 09-32 257 DATE: February 3, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a right leg disability is denied. FINDINGS OF FACT 1. Thoracic dextroscoliosis preexisted ACDUTRA. Thoracic dextroscoliosis did not worsen beyond its natural progression during ACDUTRA. 2. A right leg disability was not manifest during ACDUTRA and is not otherwise attributable to ACDUTRA. CONCLUSIONS OF LAW 1. Thoracic dextroscoliosis was not incurred in or aggravated by ACDUTRA. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.6. 2. A right leg disability was not incurred in or aggravated by ACDUTRA. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty for training (ACDUTRA) from October 1982 to December 1982. The appellant is not service connected for any disability and is not a Veteran for VA compensation purposes. This case was previously before the Board in November 2017, at which time it was remanded for further development. The directives having been substantially complied with the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C. § 1110, 1131. To establish service connection a Veteran must generally 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). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In the context of Reserve or National Guard service, the term “active military, naval, or air service” includes active duty, any period of active duty for training (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 inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C. § 101 (21), (24); 38 C.F.R. § 3.6. Diseases or injuries incurred or aggravated while performing ACDUTRA are also eligible for service connection. 38 U.S.C. §§ 101 (24), 106, 1110, 1131. In other words, a claimant must be a Veteran to qualify for VA disability compensation. Service on active duty alone is sufficient to meet the statutory definition of Veteran, but service on ACDUTRA without more will not suffice to give one “Veteran” status. An individual who served on ACDUTRA will be considered a “Veteran” if that individual suffers from a disease or injury incurred or aggravated in line of duty during the period of ACDUTRA. 38 U.S.C. § 101 (24)(B). An individual who served on INACDUTRA will be considered a “Veteran” if that individual suffers from an injury incurred or aggravated in line of duty during the period of INACDUTRA. 1. Entitlement to service connection for a lumbar spine disability The appellant asserts that her back disability was aggravated during her ACDUTRA. Upon entrance to ACDUTRA the appellant was examined and noted to have mild lower dorsal scoliosis. Shortly after beginning training she complained of severe back and thoracic pain during PT and was referred to orthopedics. Imaging showed a pronounced right-thoracic/lumbar curve. The appellant was determined to be unable to run, march, do sit-ups, pushups or wear a backpack. She was discharged in December 1982. Certain evidentiary presumptions apply to periods of active service the presumption of soundness upon entrance, as explained above, and a presumption of aggravation of a preexisting condition if a preexisting condition undergoes an increase in severity during service. 38 U.S.C. §§ 1111, 1153; 38 C.F.R. §§ 3.304 (b), 3.306. However, these presumptions will not apply to certain periods of ACDUTRA. In Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010), the Court of Appeals for Veterans Claims (Court) held that for veterans who have achieved “veteran” status through a prior period of service and 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.” The presumption of soundness does not apply as the scoliosis was noted upon entry. Further, “the presumption of aggravation is not applied to persons whose claims are based on a period of active duty for training.” Smith, 24 Vet. App. at 48. We again note that the appellant is not service connected for any disability. As none of the relevant presumptions apply, the issue becomes whether the pre-existing scoliosis was aggravated during the period of ACDUTRA. The appellant has the burden to establish both that the preexisting disability worsened in service and that such worsening was beyond the natural progression of the disease. See Donnellan v. Shinseki, 24 Vet. App. 167, 175 (2010). The appellant received a VA examination in June 2014. Range of motion was limited, and pain was noted with motion. The appellant reported having pain since jumping from a truck during service. An addendum opinion provided in May 2015 stated that the appellant’s disability preceded her service and that the severity of her current condition was most likely non-service related and could be job related, due to natural progression of the disability and a repetitive physical activity which gradually aggravated it. The examiner noted that such activity was not present during her service. Another addendum opinion was provided in April 2016. The physician stated that the appellant’s thoracic strain was transient and was not the main cause of pain since the appellant had been seen in the private sector with no mention of the strain, and post-service records indicate only natural progress of the disability. A VHA opinion was obtained in January 2017. The expert stated that the appellant’s scoliosis is not a congenital defect, as there is no evidence of a congenital bar or congenital segmentation defect. Further, the appellant’s scoliosis curve was noted to be developmental in nature and to be relatively small. It was noted that significant degenerative disease had been discovered more recently, which is “representative and typical of age-related spondylosis.” Significantly, the expert noted that for aggravation to have occurred during service, there would need to be some evidence of obvious progression of the curve or documented permanent worsening of symptoms during service. The appellant’s curve has not progressed, and her back symptoms were noted to worsen post-service. The physician ultimately opined that it was “medically improbable and medically unreasonable” to suggest that the appellant’s current condition was caused by either jumping from a truck or the two months of service. A second VHA opinion was obtained in May 2017. The physician expressed his agreement with the prior opinion. Specifically, he noted that there is no documented severity of the scoliosis progression. X-rays in December 1982 and October 1985 were the same, and the October 2003 MRI does not mention scoliosis at all. Regarding the appellant’s lay statements, she is competent to describe the onset and nature of symptoms she experiences. See Jandreau v. Nicholson,492 F.3d 1372, 1377 (Fed. Cir. 2007). However, she is not competent to comment on the origin or cause of such symptoms. The Board finds the expert opinions to be more probative regarding whether the scoliosis was aggravated. The medical evidence of record indicates that the appellant’s scoliosis, which was noted at entry to ACDUTRA, has not shown progression in severity as evidenced by changes in the curvature of the spine. Aggravation has not been shown. For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In regard to other remote medical findings, such were not manifest during service and such are not attributable to service. 2. Entitlement to service connection for a right leg disability The appellant contends that she injured her right knee when jumping from a truck during her ACDUTRA. Service treatment records do not contain record of a right knee injury or complaints of right knee pain. A VA knee examination was conducted in June 2014. The examiner noted the appellant’s reports of injuring her knee when jumping from a truck during ACDUTRA, as well as the diagnosis in 2011 of a right knee meniscal injury. An addendum opinion was provided in April 2016, stating that the appellant’s right knee strain and/or meniscal tear is less likely than not related to her ACDUTRA. The examiner stated that there was no evidence during ACDUTRA documenting any knee pain or injury. Further, the meniscal tear was diagnosed nearly thirty years after ACDUTRA and does not who any relation with ACDUTRA or the reported jump. The examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Treatment records show the appellant was not diagnosed with a right knee meniscal tear until 2011, decades after her ACDUTRA. Nothing at that time suggested an onset while in on ACDUTRA. While the appellant is competent to report having experienced symptoms of right knee pain since service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the right knee meniscal tear. The issue is medically complex. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The appellant believes her right knee meniscal tear is related to her ACDUTRA. However, she is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of pathology. Therefore, it is outside the competence of the appellant in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the April 2016 opinion by the VA examiner. To the extent that the appellant has suggested that her right knee disability may be secondary to her scoliosis, the Board notes that the appellant’s scoliosis has not been service-connected. Therefore, secondary service connection is not possible.   For the foregoing reasons, the preponderance of the evidence is against the claim. The benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan 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.