Citation Nr: 21006771 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 12-33 593A DATE: February 5, 2021 ORDER Service connection for spondylosis of cervical spine is denied. REMANDED The issue of service connection for a granuloma of the lung is remanded. FINDING OF FACT The preponderance of the evidence is against finding that spondylosis of the cervical spine began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for spondylosis of the cervical spine are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1972 to September 1972 and December 2003 to March 2005. These issues were previously before the Board. In November 2018, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. Specifically, the Board directed the AOJ to obtain any outstanding VA and private medical records and to schedule VA examinations for the Veteran’s cervical spine disorder and any diagnosed lung disorder. In September 2019, the AOJ asked the Veteran to return a VA Form 21-4142 so that treatment records could be obtained on his behalf. The Veteran did not submit a VA Form 21-4142. In October 2019, the Veteran was afforded VA examinations. Following evidentiary development, the VA Appeals Management Center (AMC) continued the previous denials in a supplemental statement of the case (SSOC) issued in June 2020. The Veteran’s VA claims file has been returned to the Board for further appellate proceedings. Service Connection Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for a 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). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The term active military, naval, or air service includes (1) active duty, (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or 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 incurred or aggravated in the line of duty. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). Service connection may also be granted for any disability resulting from an injury in the line of duty while performing inactive duty training (INACDUTRA). 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a); see McManaway v. West, 13 Vet. App. 60, 67 (1999) (quoting Brooks v. Brown, 5 Vet. App. 484, 485 (1993) (discussing 38 U.S.C. § 101(24), 1131) (stating that the law permits service connection for persons on inactive duty training only for injuries, not diseases, incurred or aggravated in line of duty). For members of the reserve components of the Armed Forces, qualifying active duty includes service on active duty under a call or order to active duty under section 688, 12301(a), 12301(d), 12301(g), 12302, or 12304 of Title 10. See 38 U.S.C. § 3301(1)(B). For members of the Army National Guard of the United States or the Air National Guard of the United States, in addition to service described above for members of the regular and reserve components of the Armed Forces, qualifying active duty includes full-time service (i) in the National Guard of a State for the purpose of organizing, administering, recruiting, instructing, or training the National Guard; or (ii) in the National Guard under section 502(f) of Title 32 when authorized by the President or the Secretary of Defense for the purpose of responding to a national emergency declared by the President and supported by Federal funds. See 38 U.S.C. § 3301(1)(C). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” Gilbert, 1 Vet. App. at 54. Service connection for spondylosis of cervical spine The Veteran contends that his cervical spine disability was caused by his active service. Specifically, the Veteran contended that his cervical spondylosis was “due to mistreatment while serving in Iraq.” The Veteran’s representative contends that the Veteran’s specialties during service and as a member of the Army National Guard as a wireman, multichannel systems operator/team chief, and switch systems chief were “very physically demanding duties which would take a toll on the upper body in particular and likely contributed” to the Veteran’s cervical spondylosis. National Guard service alone, however, does not constitute active duty service for VA purposes unless the Veteran has been specifically assigned to active duty for training or for other purposes. More importantly, even if the Veteran’s National Guard duty constituted active service, the analysis of the Veteran’s claim remains the same as discussed below. After considering the evidence of record, the Board concludes that the most probative evidence establishes that the Veteran’s current cervical spine disability is not causally related to his active service or any incident therein, to include any “mistreatment” or his “very physically demanding duties.” The Veteran’s service treatment records do not show any complaints, treatment, or diagnoses of a cervical spine disability. As there is no record of any treatment for the Veteran’s cervical spine, there is also no record of any “mistreatment.” The Veteran consistently stated that he was in good health during active service. The first recorded complaint of neck pain was in March 2008, or three years after discharge from active duty. At the time, the Veteran stated that he had a 7-month history of neck pain and underwent surgery. Although the Veteran had complained of other ailments, such as headaches that “begin at the back of his neck,” he did not complain of neck pain until March 2008. In October 2019, the Veteran was afforded a VA examination for his cervical spine. The Veteran reported his belief that he was “mistreated while in Iraq and that it was what has caused his problems.” The examiner opined that the cervical spine disability was less likely than not caused by the Veteran’s active service. As rationale, the examiner cited the lack of complaints during service, and that the Veteran himself reported in April 2008 that his neck pain began 7 months earlier. The examiner added, however, that the Veteran did not complain of neck pain in January 2008 when he served as a “line supervisor/service technician.” The examiner also stated that spondylosis, the diagnosed cervical disability, was “another term for age related degenerative changes,” attributing it to the Veteran’s age rather than his active service or “physically demanding” tasks. The Board assigns great probative weight to the October 2019 VA examiner’s opinion as it is based on the review of the evidence and supported by adequate rationale. There are also no contrary medical opinions of record. Moreover, to the extent the Veteran and his representative assert that a relationship exists between his cervical spine disability and his service, specifically mistreatment while serving in Iraq and/or his physically demanding duties during service as a wireman (then as a multichannel systems operator/team chief and switch systems chief), the Board finds that such assertions do not provide persuasive evidence in support of the claim. The matter of the medical etiology of the disability here at issue is one within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). Thus, lay assertions as to the etiology of the Veteran’s cervical spine disability have no probative value. In summary, the absence of competent medical or scientific evidence documenting a relationship between the Veteran’s cervical spine disability and his service, service connection on a direct basis must be denied. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 54. The preponderance of the evidence is against the Veteran’s claim, and as such service connection for cervical spine spondylosis is denied. REASONS FOR REMAND The issue of service connection for a granuloma of the lung is remanded. In October 2019, the VA examiner opined that the Veteran’s lung granuloma was not related to service as it could have been caused by a history of infection or due to a history of chest trauma. The examiner noted that the date of onset was in 2008, and that the Veteran continued to smoke cigarettes since he was 12 years old. As an initial matter, the Board notes that medical treatment records show that “probable old granulomas” were observed in April 2006, or 2 years prior to the date of onset noted by the October 2019 VA examiner. More importantly, however, the October 2019 VA examiner did not explain why infection or chest trauma could not have occurred during the Veteran’s active service, especially considering the Veteran’s service in Southwest Asia. The Board adds that the Veteran received a combat action badge, indicating that he took part in combat activities in addition to possible exposure to harmful chemicals. The examiner also did not discuss alternate causes of granulomas and why such causes were not relevant in the Veteran’s case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (“most of the probative value of a medical opinion comes from its reasoning”); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A] medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matter is REMANDED for the following action: Obtain an addendum VA medical opinion regarding the etiology of the Veteran’s lung granulomas. The Veteran’s claims file should be made available to the examiner. The examiner should provide an opinion with supporting rationale. All pertinent evidence, including both lay and medical, should be considered and discussed, to include the October 2019 VA examination. The need for another examination is left to the discretion of the clinician offering the addendum opinion. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Yun 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.