Citation Nr: 21013059 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-47 524 DATE: March 8, 2021 ORDER Service connection for a chronic lumbar spine disorder is denied. Service connection for a chronic cervical spine disorder is denied. FINDING OF FACT A chronic lumbar spine disability or a chronic cervical spine disorder was not shown in active service or during a period of active duty for training (ACDUTRA), lumbar spine arthritis or cervical spine arthritis was not diagnosed within one year of active service discharge, and the weight of the evidence fails to establish that any current lumbar spine disorder or cervical spine disorder is etiologically related to the Veteran’s active service. CONCLUSIONS OF LAW 1. The criteria for service connection for a chronic lumbar spine disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for service connection for a chronic cervical spine disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1951 to August 1953. He had reserve service through the late 1970s with a period of ACDUTRA in August 1955. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty from active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. “To establish a right to compensation for a present disability, a Veteran 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’—the so-called ‘nexus’ requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing 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 which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic diseases, including arthritis, may also be established on a presumptive basis by showing that such a disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). To establish service connection under this provision, there must be: evidence of a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307), and subsequent manifestations of the same chronic disease; or if the fact of chronicity in service is not adequately supported, by evidence of continuity of symptomatology after service. The provisions of 38 C.F.R. § 3.303(b) relating to continuity of symptomatology, however, can be applied only in cases involving those conditions explicitly enumerated under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for injury or disease incurred or aggravated during a period of active duty for training (ACDUTRA) is warranted. 38 U.S.C. § 101(24)(B); 38 C.F.R. § 3.6(a). ACDUTRA is, among other things, full-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Inactive duty for training (INACDUTRA) is part-time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any state. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Active duty also includes authorized travel to or from such duty or service. 38 C.F.R. § 3.6(e). ACDUTRA is not defined as “active” service unless the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty while performing ACDUTRA. 38 U.S.C. § 101(24); 38 C.F.R. § 3.6(a). INACDUTRA is not defined at “active” service unless 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. Id. The Veteran filed a request to reopen his service connection claim for a lumbar spine disorder and filed a service connection claim for a cervical spine disorder, which were denied by a May 2015 rating decision. He asserts that his lumbar spine disorder and cervical spine disorder are due to his active service. He asserted that he developed back pain while on active reserve duty in August 1955 when he sprained his back and that he had pain continuously since then. He asserted that he developed neck pain while on active duty after a January 1953 motor vehicle accident and that he had pain continuously since then. The Veteran’s service treatment records (STRs) show that at his August 1951 entrance physical, he had a normal examination of his spine. In January 1953, he was in a motor vehicle accident and broke his nose. At his August 1953 separation physical, he had a normal examination of his spine. The Veteran’s reserve STRs show that at physicals in February 1954, June 1954, and February 1955, he had normal examinations of his spine. In August 1955, he sprained his back while on duty. However, at later March 1956, January 1957, July 1957, November 1958, March 1959, October 1960, and April 1961 physicals, he continued to have normal examinations of his spine, and on medical questionnaires submitted with some of these physicals, he reported that he was in good or excellent health and denied having any arthritis. The Veteran’s reserve STRs show that in June 1962, he reported having a backache. A July 1963 x-ray showed mild dorsal kyphosis, or curvature. At an April 1964 physical, he had a normal examination of his spine. At a February 1965 physical, he reported he was in excellent health and denied having any arthritis. In May 1967, he reported that he injured his back after his active service in 1956 and that he had low back spasms five to six times per year. However, he had a normal examination of his spine. In addition, a lumbar spine x-ray was normal. At physicals in February 1968, October 1968, and July 1969, he continued to have normal examinations of his spine and denied having any arthritis. The Veteran’s reserve STRs show that at physicals in August 1973, April 1975, April 1976, October 1976, April 1977, July 1978, and February 1979, he continued to have normal examinations of his spine. In addition, in medical questionnaires submitted with these examinations, he reported he was in excellent health and specifically denied having recurrent back pain. As such, the Veteran’s STRs do not show that he was diagnosed with any chronic lumbar spine disorder or chronic cervical spine disorder during his active service or within one year of separation from active service. In addition, he had normal examinations of his spine through 1979. While he was involved in a motor vehicle accident in January 1953, his STRs do not document any chronic cervical spine injuries or complaints. While he sprained his back in 1955, he was not diagnosed with a chronic lumbar spine disability. He reported he injured his back in 1956, which was after his active duty service. In addition, while he reported having a backache in 1962, he was not diagnosed with any chronic lumbar spine disability and x-rays throughout his reserve service did not show arthritis. The first medical evidence of a chronic cervical spine disorder is not until a December 2009 MRI showed arthritis. In January 2010, the Veteran’s physician reported that the Veteran’s neck pain began a few months previously, which is over five decades after his separation from active service and over three decades from his separation from reserve service. The first medical evidence of a chronic lumbar spine disorder is not until September 2015 when he was diagnosed with arthritis. The Veteran reported that he had low back pain for the last 20 years, or approximately since 1995. The medical evidence does not show a chronic lumbar spine disorder until over six decades after his separation from active service. Giving the Veteran every benefit, his reports of chronic low back pain did not begin until almost two decades after his reserve service. In February 2020, the Veteran was afforded a VA examination. After reviewing the Veteran’s claims file, interviewing the Veteran, and conducting an examination, the examiner opined that any lumbar spine disorder or cervical spine disorder was not at least as likely as not due to the Veteran’s active service. The examiner reported that the Veteran sprained his back in August 1955, he was treated with bed rest and returned to active duty. The examiner reported that a 1956 STR records showed a history of back spasms. The examiner reported that all exams afterwards were normal. The examiner reported that the Veteran’s STRs were silent for any neck symptoms and all of his neck examinations were normal during service. The examiner reported that arthritis was a natural progressive disease of aging. In March 2020, the February 2020 VA examiner reported that in 1953, the Veteran was involved in a motor vehicle accident, but no neck injury was noted. The examiner reported that the in-service motor vehicle accident could not be the cause of the Veteran’s current cervical spine disorder as examinations during his service were normal and did not note any neck issues. The examiner reported that the Veteran was not diagnosed with cervical spine arthritis until December 2009. The examiner concluded that arthritis was a natural progressive disease of aging and not caused by the 1953 motor vehicle accident. In October 2020, a VA examiner reviewed the Veteran’s claims file. The examiner opined that the Veteran’s lumbar spine disorder was less likely than not due to his active service. The examiner opined that the Veteran’s cervical spine disorder was less likely than not due to his active service. The examiner reported that the Veteran’s complaints of back and neck pain during service were acute. The examiner noted that the Veteran was involved in a motor vehicle accident in 1953, but no cervical spine symptoms were identified. The examiner reported at the Veteran’s separation physical in 1953 and at physicals afterwards, the Veteran had normal spine examinations. The examiner reported that the Veteran was not diagnosed with cervical spine arthritis until 2009 and lumbar spine arthritis until 2015, which was many years after his active service and unrelated to his active service. The examiner reported that there was no evidence of chronicity of care for either the Veteran’s lumbar spine disorder or cervical spine disorder. The Veteran has not submitted any medical evidence supporting his assertion that his lumbar spine disorder and cervical spine disorder were due to or the result of his active service beyond his own assertions. VA obtained medical opinions in an effort to support the Veteran in establishing his claims. The VA examiners opined that it was less likely than not that the Veteran’s lumbar spine disorder and cervical spine disorder were due to his active service, to include his complaints of back and neck pain during his service. Moreover, the VA medical opinions were accompanied by a detailed explanation of how the examiners reached their conclusions, and specifically noted that medical records from the 1953 motor vehicle accident did not show any cervical spine symptoms, that the Veteran’s back and neck complaints during service were acute, that the Veteran had normal examinations of his spine at his separation examination and throughout his reserve service, the Veteran was not diagnosed with cervical spine arthritis until 2009 and lumbar spine arthritis until 2015, and that the Veteran’s arthritis was a naturally progressive disease of aging. These opinions have not been called into question or undermined by any competent medical evidence. Therefore, after weighing all the evidence, the Board finds the greatest probative value in the VA examiners’ opinions, but also notes that the entirety of the medical evidence weighs against the conclusion that the Veteran’s lumbar spine disorder or cervical spine disorder either began during or was otherwise caused by his active service. Thus, the evidence fails to establish service connection for any lumbar spine disorder or cervical spine disorder. Consideration has been given to the Veteran’s assertions that his lumbar spine disorder and cervical spine disorder are the result of his service. He is clearly competent to report symptoms of back and neck pain as well as injury. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while the Veteran may describe back and neck pain, he lacks the medical training or qualification to either diagnose a chronic lumbar spine disability or a chronic cervical spine disability or opine as to its etiology. Id. His opinion therefore cannot provide the requisite nexus and does not refute the medical opinion of record. The record does not contain evidence of a diagnosis of an ongoing chronic lumbar spine disability or chronic cervical spine disability related to his service, as the first evidence of any lumbar spine or cervical spine complaints do not appear until 2009, over five decades after the Veteran’s separation from active service. Furthermore, his separation physical did not document any lumbar spine or cervical spine disability at that time. In addition, at subsequent reserve physicals, the Veteran reported he was in good or excellent health, had normal examinations of his spine, and specifically denied having any arthritis or recurrent low back pain through February 1979. As such, the Board does not find that the evidence of record shows continuous lumbar spine or cervical spine symptomatology. The Board also notes that the Veteran is not entitled to presumptive service connection for a lumbar spine disorder or a cervical spine disorder. The record contains no objective medical evidence of a chronic lumbar spine disorder until September 2015 and a chronic cervical spine disorder until December 2009, again over five decades after the Veteran’s separation from active service. In addition, the record does not contain evidence that any back or neck injury in service resulted in a diagnosis of arthritis within one year of separation from service. Therefore, the presumption of service connection has not been triggered. Consideration has also been given to the Veteran’s assertions that his lumbar spine disorder and cervical spine disorder were the result of his active service. He again is noted to be competent to report his own symptoms or matters within his personal knowledge. However, the Veteran was found to have a normal examination of his spine at his August 1953 separation physical. He continued to have normal examinations of his spine at reserve service physicals in February 1954, June 1954, February 1955, March 1956, January 1957, July 1957, November 1958, March 1959, October 1960, April 1961, February 1965, February 1968, October 1968, July 1969, August 1973, April 1975, April 1976, October 1976, April 1977, July 1978, and February 1979. These normal examinations serve to sever any continuity from service. Accordingly, the criteria for service connection have not been met for a chronic lumbar spine disorder or a chronic cervical spine disorder. That is, the evidence does not show that a chronic lumbar spine disorder or a chronic cervical spine disorder was diagnosed in service or within a year of separation from active service, the weight of the evidence is against a finding that any chronic lumbar spine disorder or chronic cervical spine disorder was incurred during a period of ACDUTRA, and the weight of the evidence is against a finding that a chronic lumbar spine disorder or a chronic cervical spine disorder has existed continuously since service. Therefore, the claims are denied. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Penn, Associate 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.