Citation Nr: 21011027 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 13-26 629 DATE: February 26, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran’s lumbar spine disability is related to a period of active service, active duty for training (ACDUTRA), or inactive duty for training (INACDUTRA). CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 101, 1110, 1131, 5107; 38 C.F.R. §§ 3.6, 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to May 1973 and from November 1990 to January 1991. He also served in the Mississippi National Guard from September 1972 to August 1991 with several periods of ACDUTRA and INACDUTRA. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in October 2010 by a Department of Veterans Affairs (VA) Regional Office. The Veteran appeared and testified at Board hearings before Veterans Law Judge (VLJ) Jaeger in March 2016 and before VLJ Rein in December 2020. Transcripts of both hearings are of record. The Veteran was advised of, and waived, his right to a third hearing during the latter hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2015). By way of history, the Board remanded this matter in November 2016 for further development, to include obtaining an addendum medical opinion. In May 2018, the Board denied the claim on appeal. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (CAVC). In a July 2019 Memorandum Decision, the CAVC vacated the Board’s May 2018 denial, and remanded the claim to the Board for readjudication. In December 2019, the Board again remanded this matter to obtain an addendum opinion to determine the etiology of the Veteran’s lumbar spine disability. As the actions specified in the prior remand have been substantially completed, the case has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Duties to Notify and Assist The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). In this case, in December 2016 VA attempted to obtain medical records associated with the Veteran's application for disability benefits from the Social Security Administration (SSA). However, in December 2016 correspondence the SSA stated that the medical records had been destroyed, and therefore further attempts to obtain them would be futile. Thus, VA made adequate attempts to obtain the records. 38 C.F.R. § 3.159(c)(2), (e). Neither the Veteran, the representative, nor the record has raised any other issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Reserve and National Guard service generally means ACDUTRA and INACDUTRA; although in more recent times it also has come to include active duty. ACDUTRA is full time duty for training purposes performed by Reservists and National Guardsmen pursuant to 32 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). Basically, this refers to the two weeks of annual training which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman's initial period of training. 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). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. These drills are deemed to be part-time training. Whereas here, the claim of service connection is based on a period of INACDUTRA, there must be evidence that the appellant became disabled as a result of an injury incurred in the line of duty during the period of INACDUTRA. See 38 U.S.C. § 101(24); Smith v. Shinseki, 24 Vet. App. 40 (2010). Service connection is generally not legally merited when a disability incurred during a period of INACDUTRA results from a disease process. Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Only service department records can establish if and when an individual served on active duty, ACDUTRA, or INACDUTRA. Cahall v. Brown, 7 Vet. App. 232, 237 (1994). When a claim of service connection is based on a period of ACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred in the line of duty during the period of ACDUTRA. See 38 U.S.C. § 101(24); Smith v. Shinseki, 24 Vet. App. 40 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of the ACDUTRA alone. Id. Furthermore, the statutory presumptions for service connection do not apply to periods of ACDUTRA. Id. at 47. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102. A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a lumbar spine disability. The Veteran seeks service connection for a lumbar spine disability, which he contends was incurred during military service. At his 2016 and 2020 Board hearings, the Veteran testified that he was changing a tire, which caused his back to start hurting and “go out on [him].” Service treatment records document this incident as having happened on August 15, 1982. As noted in the Veteran’s service records, this injury occurred during a period of INACDUTRA. The Veteran was on ACDUTRA from June 7 to June 21, 1986. On June 15, 1986, he injured his back when jumping down from a heavy equipment truck. The Veteran sought treatment and was diagnosed with acute lumbosacral strain. As noted above, the first element of service connection requires medical evidence of a present disability. VA medical records confirm that the Veteran has been diagnosed with several disabilities of the lumbar spine, including lumbar spondylosis, lumbosacral strain, degenerative disc disease of the lumbar spine, degenerative arthritis, herniated disc, and acute lumbar disk rupture. Thus, the issue before the Board is whether the Veteran’s current lumbar spine disability is etiologically related to any illness, injury, or event that occurred in service. Additionally, as previously noted, pertinent service treatment records (STRs) reflect that the Veteran was treated for back pain in August 1982, with a diagnosis of muscular strain. Service records also reflect treatment for back pain in June 1986, with diagnoses of acute lumbar spine strain and muscular strain. However, there is no evidence which indicates that the Veteran’s current back disability is in any way related to the claimed 1982 injury incurred when changing the dump truck tire, the 1986 injury jumping from a heavy equipment truck, or his service generally. An October 1982 line of duty determination documents the Veteran’s August 1982 injury as having occurred during a period of INACDUTRA. It notes that the Veteran continued to work the remainder of the drill period. A June 1986 sick slip notes the Veteran’s complaint of his back hurting, and contains a diagnosis of acute lumbosacral strain, with bed rest ordered for two days. In an April 1987 sworn statement, the Veteran recounted his June 1986 injury. He recalled that, during annual training, he was operating a grader at the ASP Compound when he parked the grader for lunch. The unloading steps on the grader were bent and he could not step from them to unload. The Veteran recalled that he had to swing from the loading side bar and jump and, when he jumped, he had a quick sharp pain hit him in the lower part of his back. He stated that he went to sick call and was prescribed medication and rest. When medication and rest did not help the pain, the Veteran went to an urgent care center for treatment at which time he was referred to a back and bone specialist. A November 1992 Report of Medical Examination documents the Veteran’s spine, other musculoskeletal, as normal. February 1998 private treatment records contain multiple images of the Veteran’s lumbar spine. Imaging of the lumbar spine with obliques revealed narrowing of the L5-S1 and L4-L5 disc spaces and mild scoliosis of the lumbar spine with convexity to the left. A lumbar myelogram revealed extradural defect at the L4-5 level on the left. A CT of the lumbar spine with contrast revealed large left paracentral HNP at the L4-5 level. A February 1998 private initial neurological evaluation notes the Veteran as having back, left hip, and sciatic pain for over three months, he had no particular injury, and no prior history. The Veteran is noted as working in construction. Also in February 1998, the Veteran underwent a lumbar laminectomy at a private facility to remove an extruded disk. Treatment records from the procedure note that pain was relieved, and that the Veteran was discharged two days later. Private treatment records from 2004, 2005, 2007, and 2008 generally reflect the Veteran’s ongoing complaints of and treatment for chronic back pain. In an October 2009 buddy statement, the Veteran’s friend attests to witnessing, in relevant part, the Veteran’s “back problems.” The Veteran underwent a VA examination in August 2010. He reported to the examiner that he injured his back in-service and that there were two incidents. One when changing a tire on a truck and the second when stepped off a grader blade and injured his back. He stated that on both occasions he was examined and told that he had a back problem. The Veteran reported that he continued to have back pain throughout the remainder of his time in service, though he stated he did not go in for examination. He stated that he has had low back pain ever since. The examiner confirmed a diagnosis of post-laminectomy at L5-S1. Upon examination, the examiner opined that the Veteran's back condition is less likely as not incurred in or caused by service. In making this finding, the examiner noted that he could not find record of the Veteran’s second in-service injury, so his findings only considered the Veteran’s first incident. The examiner noted the Veteran’s back surgery as occurring in 1998 and the prior history section of those treatment records noted that the Veteran did not relate his back problem to any particular injury, that his symptoms had been ongoing for the three months prior, and that he did construction work. In light of that information, the examiner opined that it was “difficult” to relate the Veteran’s eventual need for the 1998 laminectomy as being the result of his 1982 injury, nor as the result of the second injury that the examiner could not locate, without resulting to mere speculation. A January 2011 letter from the Veteran’s private provider stated the Veteran was treated for a ruptured disc in 1998 and that his “back difficulty could well be related to his military service.” However, there is no indication that the doctor reviewed the Veteran’s service records prior to making this statement and the opinion contains no rationale to support its finding. During his March 2016 hearing, the Veteran testified that he first injured his back when changing a tire in-service and that this caused his “back to go out on [him].” The Veteran testified that he went to sick call and the doctor thought he had a “sprained back or something,” but after service it turned out to be a “ruptured slipped disc,” and he had to have surgery. The Veteran testified that it was “probably” about a year after service that he found out exactly what was wrong with his back. He also testified that he has had back issues since service that persist to date. An April 2016 private treatment documents the Veteran’s chronic back pain as having existed for 18 years and that “the inciting event was none recalled by the [Veteran].” In a May 2016 statement, the Veteran contended that the VA examination was inadequate on two grounds. First, the examiner “ignored” the Veteran’s statements that he incurred two additional back injuries in 1990/91 during active duty, but then concluded that he could only identify the initial, 1982 incident, in the Veteran’s service records. Second, the Veteran contends that he informed the examiner that following the 1982 incident, he continues to suffer from back problems. Both of which go against the examiner’s conclusion that there was no documentation of ongoing and additional injury complaints reported by the Veteran. In a December 2016 statement, the Veteran stated that he injured his back in service and shortly after discharged he had loss of sensation in his lower extremities. The Veteran stated that he can hardly walk due to pain and numbness. Pursuant to the Board’s November 2016 remand, an addendum medical opinion was obtained in February 2017. After reviewing the Veteran’s claims file, the examiner noted that records clearly indicate that the Veteran had multiple events that were classified as lumbar strain, and that the 1982 and 1986 in-service injuries were well documented. Ultimately, the examiner concluded that it is less likely than not that any current back disorder or disorder since September 2009 would be due to an injury incurred during a period of INACDUTRA, ACDUTRA, or active duty, or a disease incurred during a period of ACDUTRA or active duty. In its July 2019 decision, the CAVC found the February 2017 opinion to be inadequate because it did not adequately consider the Veteran’s lay contentions regarding continued pain symptoms. In an October 2017 statement, the Veteran contended that his lumbar spondylosis could have caused physiological, or at least contributed to the changes, that could cause herniated disc and degenerative changes. VA treatment records from 2018 and 2019 document the Veteran’s consistent complaints of chronic back pain. Records from 2018 also show that the Veteran wears a prescription back brace. A new addendum opinion was obtained in March 2020. Following a full review of the Veteran’s claims file, the examiner opined that it is less likely than not that his lumbar spine disability, currently diagnosed as lumbar spondylosis and degenerative disc disease, resulted from a disease or injury during a period of INACDUTRA, ACDUTRA, or active duty, to specifically include the Veteran’s back injuries in August 1982 and/or June 1986. The examiner noted that there is a discrepancy between the Veteran’s statements of the onset and continuity of back symptoms since the injuries and the medical reports documented above. The examiner noted that, while STRs note the injuries, they are silent for evidence of a chronic back condition, or any evidence that the Veteran’s injuries were anything more than acute and self-limiting injuries. In so finding, the examiner highlighted the Veteran’s reports on his separation examination and on a January 1987 examination that he had no recurrent back pain; the lack of documentation of continuity of symptoms or complaints until 1998; and the February 1998 diagnosis of a herniated disc was noted to be an acute disc rupture, and the Veteran reported experiencing pain for 3 months prior and did not relate his back pain to any incident in service. The examiner also highlighted an April 2016 treatment record which indicates the Veteran’s report of chronic back pain for 18 years. The examiner noted that this would date the Veteran’s complaints to 1998, the time of the herniated disc and laminectomy. Addressing the 1982 and 1986 injuries, which were noted in-service as muscle strains, the examiner stated that medical literature does not support that muscle strains cause, predispose, or develop into acute disc herniation, lumbar spondylosis nor degenerative disc disease. During the Veteran’s December 2020 hearing, his representative argued that the March 2020 addendum opinion was inadequate because the examiner did not provide any analysis or discussion of the Veteran’s lay testimony that he has had chronic symptoms since the documented manifestation of a back disability or a back injury. The Veteran testified that that he has had continuous symptoms since his in-service back injury and that he “can’t hardly do anything.” The Veteran also testified that he had back surgery at a private facility “not long after [he] got out of service.” The Veteran testified to currently receiving treatment from the VA and to use of a back brace and walker because his “back and legs give away and [he] can’t walk.” He testified that he just “stay[s] around [his] house.” After careful review of the record, the Board concludes that service connection for the Veteran’s lumbar spine disability is not warranted. While the Veteran is shown to have a current diagnosis of a lumbar spine disability, most recently characterized as lumbar spondylosis and degenerative disc disease, the Board finds that the probative evidence does not show that such disability was incurred in or is otherwise related to any period of active duty, ACDUTRA, or INACDUTRA. In this regard, the Board finds the March 2020 VA opinion to be the most probative medical opinion of record regarding the etiology of the Veteran's lumbar spine disability. In this regard, the March 2020 examiner provided a fully articulated conclusion adequately supported by medical rationale and citations to the Veteran’s claims file and medical history. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008) (holding that conclusions that are factually accurate, fully articulated, and contain sound reasoning contribute to the probative value of a medical opinion). In making this finding, the Board is cognizant that a private provider who has treated the Veteran has provided a statement attesting to a positive nexus between the Veteran's “back difficulty” and his military service. However, the Board finds this opinion to be conclusory and not supported by any medical rationale. As such, the Board finds the March 2020 VA opinion to be the most persuasive medical evidence of record, which ultimately weighs against a finding that the Veteran's lumbar spine disability was incurred during a period of INACDUTRA, ACDUTRA, or active duty, to include the back injuries incurred in August 1982 during INACDUTRA and/or in June 1986 during ACDUTRA. Id. (holding that it is in the purview of the Board to decide, in the first instance, which of the competing medical opinions or examination reports is more probative of the medical question at issue). Indeed, the March 2020 VA examiner specifically considered the Veteran’s contentions that he has had continuous symptoms and found a discrepancy with such contentions, as he indicated in the notations provided in earlier records while he was seeking medical treatment. The Veteran's statements in February 1998 and April 2016 at the time of seeking treatment for back pain are credible and more probative as they were made contemporaneously to obtaining treatment rather than remotely for the purpose of obtaining compensation. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994); Harvey v. Brown, 6 Vet. App. 390, 393-94 (1994). Finally, the Board acknowledges the Veteran's sincere belief that his current lumbar spine disability is related to military service. The Veteran is competent to report on matters observed or within his personal knowledge and is, therefore, competent to make statements regarding his symptoms and medical history. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, a probative medical opinion on the etiology or underlying causes of a complex condition such as degenerative disc disease requires the specialized training of a medical professional. In this case, as a layperson not shown to possess appropriate medical training and expertise, the Veteran is not competent to render a persuasive or competent medical opinion on whether his lumbar spine disability was incurred in or caused by his military service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2006). Therefore, any opinion by the Veteran regarding the etiology of his disability is not competent evidence. As discussed, the Board finds the March 2020 VA medical opinion of record, provided by a qualified medical professional, to be more probative with regard to causation. In summary, the Veteran did not, during a qualifying period of active service, to include ACDUTRA, and INACDUTRA, become disabled as a result of disease or injury incurred in line of duty. In light of this finding, service connection for a lumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable and the appeal is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals A. JAEGER Veterans Law Judge Board of Veterans’ Appeals DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gates, Charlene F. 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.