Citation Nr: 21006677 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-47 475 DATE: February 4, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to service connection for a right hip disability is denied. Entitlement to service connection for a left elbow disability is denied. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability, including arthritis, was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and the disability is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. The Veteran’s arthritis of the right hip was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established and the disability is attributable to intercurrent causes; and the disability is not otherwise etiologically related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that left olecranon bursitis began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for service connection for a right hip disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for service connection for a left elbow disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1976 to September 1980, with subsequent periods of reserve service between September 1980 and December 1995. This case comes to the Board of Veterans’ Appeals (Board) on appeal from decisions of the Agency of Original Jurisdiction (AOJ) dated in September 2016 and July 2017. This case was previously remanded to the AOJ in April 2019, for additional development, and was subsequently returned to the Board. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (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). Certain chronic diseases, such as arthritis, will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Under the law, active military service includes (1) active duty, but also (2) any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24) (B); 38 C.F.R. § 3.6 (a). As a threshold matter, “veteran” status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is “axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status”). To establish status as a veteran based upon a period of ACDUTRA, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000). The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that he is also a veteran for purposes of the period of ACDUTRA where the claim for benefits is based on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Without the status as a veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to veterans. For example, presumptive periods allowing for the presumed incurrence of a condition in service do not apply to ACDUTRA or INACDUTRA, and neither do the presumptions of soundness and aggravation. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Presumptive periods for service connection do not apply to ACDUTRA unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. Acciola v. Peake, 22 Vet. App. 320, 323-324 (2008). 1. Service connection for a back disability 2. Service connection for a right hip disability The Veteran contends that his current back and right hip disabilities were incurred in service. The Veteran has reported injuring his back in service. A September 2003 VA treatment note reflects that the Veteran reported chronic low back pain from an injury in service, and said he had back pain for a long time. The Veteran has current diagnoses of degenerative arthritis of the lumbar spine and right hip as evidenced by the December 2019 VA examination. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The Veteran was also diagnosed with a moderate central herniated nucleus pulposus at L4-5 and degenerative disc changes, and right lumbar radiculopathy. See August to September 2002 private medical records. However, the disabilities were not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and were not noted in service with attributable continuity of symptomatology. VA and private treatment records show the Veteran was not diagnosed with low back or right hip disabilities until January 2002, decades after his separation from active service and decades outside of the applicable presumptive period. Service treatment records are negative for complaints, treatment or diagnosis of injury or disability of the back or right hip. The Veteran's spine and lower extremities were clinically normal on separation medical examination in July 1980, and on subsequent medical examinations performed during periods of reserve service, in November 1984 and January 1991. Private medical records reflect that in late January 2002, the Veteran reported that a few days earlier, he lifted a heavy machine at work, and experienced a sharp excruciating pain in his low back. He complained of back pain radiating down his left leg. This document is stamped as having been received by a Worker’s Compensation office in his state. An August 2002 private medical record reflects that the Veteran reported that in January 2002, he felt a pop in his back and right hip when stooping over to lift heavy equipment, and still had pain in his lower right hip. A September 2003 VA outpatient treatment record reflects that the Veteran complained of chronic low back pain and neck pain from an injury when he was in service, and said he had back and neck pain every day since 1993. He had a history of bulging lumbar discs, and also reported low back pain radiating to the right leg, with no history of recent trauma or fall. The diagnostic assessment was chronic low back and neck pain. In March 2004 he reported that he pulled some muscles in his back the previous week. While the Veteran is competent to report experiencing symptoms of back and right hip pain since service and consistently since service, the Board finds the reports of continuity of symptomatology not credible. The Veteran’s reports are internally inconsistent with his reports in contemporaneous treatment records, which show that he repeatedly denied experiencing back pain in reports of medical history in July 1980, November 1984 and January 1991. He denied a history of a painful recurrent back pain, and arthritis, bursitis or rheumatism in these reports. He initially reported the onset of back and right hip pain as January 2002, outside of the presumptive period. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Further, while the Veteran is competent to report having experienced symptoms of back pain since service and consistently since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis of the low back and right hip as he has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms are instead attributable to a 2002 post-service work-related injury. The January 2020 VA examiner determined that the symptoms were due to a worker’s compensation injury in 2002. Further, private treatment records attributed the symptoms to a work-related back and right hip injury in January 2002. Service connection for may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s disabilities of the back and right hip and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The January 2020 VA examiner opined that the Veteran’s degenerative arthritis of the spine and osteoarthritis of the right hip are not at least as likely as not related to an in-service injury, event, or disease, including claimed injury. The rationale with regard to the back disability was that the active duty service records are completely absent of any back complaints or injuries, and he very clearly denied back pain at the time of his separation physical in 1980. While he subjectively states that he has had ongoing back pain since 1993, he was not on active duty orders in the 1990s and there are no documented incidents in line of duty injuries during his reserve time. The current back condition and ongoing chronic back complaints very clearly started from a worker’s compensation injury in 2002 while lifting heavy equipment, as supported by medical records from that time. The rationale with regard to the right hip disability was that there is no evidence to support this claim, and the Veteran very clearly denied any joint pain at the time of his separation physical in 1980. There was no evidence of hip complaints in active duty records, and civilian records from 2002 very clearly state that his right hip pain started with a worker’s compensation injury in 2002. While the Veteran believes his back and right hip disabilities are related to an in-service injury, event, or disease, including injury, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 3. Service connection for a left elbow disability The Veteran contends that he injured his left elbow while drilling during a period of reserve service. See March 2017 notice of disagreement. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a diagnosis of left olecranon bursitis, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. Service treatment records are negative for complaints, treatment or diagnosis of a left elbow injury or disability. The Veteran’s upper extremities were clinically normal on separation medical examination in July 1980, and on subsequent medical examinations performed during periods of reserve service, in November 1984 and January 1991. In reports of medical history in July 1980, November 1984 and January 1991, the Veteran denied a history of a painful or trick elbow, and arthritis, bursitis or rheumatism. A 5-centimeter scar was noted on his left elbow in a January 1991 quadrennial examination. The January 2020 VA examiner opined that the Veteran’s left olecranon bursitis is not at least as likely as not related to an in-service injury, event, or disease, including injury. The rationale was that there is no evidence to support this claim. There is no evidence of elbow complaints or injuries in the active duty service records, the Veteran very clearly denied joint complaints at time of separation, and there is no evidence of chronic ongoing elbow complaints in current civilian or VA records since time of separation. There is no explanation for the elbow scar documented at the 1991 physical, however, he was a reservist at the time, and there is no evidence of elbow injury while on active duty orders. While the Veteran believes his left elbow disability is related to a drilling injury in service, the Board reiterates that the preponderance of the evidence weighs against findings that an in-service injury, event, or disease occurred. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.