Citation Nr: 21030684 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-11 969 DATE: May 19, 2021 ORDER Entitlement to service connection for a cervical spine and/or upper back disability is denied. FINDING OF FACT A cervical spine and/or upper back disability was not incurred in or otherwise caused by service. CONCLUSION OF LAW The criteria for entitlement to service connection for a cervical spine and/or upper back disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty as a commissioned officer and rotary wing aircraft pilot in the United States Army from July 1968 to July 1972 with service in the Republic of Vietnam, from November 1990 to June 1991 with service in Southwest Asia and with additional service in the Army National Guard until 1997. He was awarded multiple Bronze Star and Air Medals. The Veteran was scheduled for a Board videoconference hearing in February 2021. In a January 2021 correspondence, the Veteran withdrew his hearing request. As such, the Board may adjudicate the claim at this time. Entitlement to service connection for a cervical spine and/or upper back disability 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. 38 U.S.C. §§ 1110, 1131. Active military, naval, or air service includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred in line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) duty in which the individual concerned was disabled from injury incurred in the line of duty. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1131. ACDUTRA includes full time duty performed by members of the National Guard of any state or the reservists. 38 C.F.R. § 3.6(c). INACDUTRA includes duty other than full time duty performed by a member of the Reserves or the National Guard of any state. 38 C.F.R. § 3.6(d). Certain evidentiary presumptions - such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service - are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. The presumption of soundness under 38 U.S.C. § 1111 does not apply when a claimant, veteran or otherwise, has not been examined contemporaneous to entering a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 45 (2010). The presumption pertaining to chronic diseases under 38 U.S.C. § 1112 and the presumption of aggravation under 38 U.S.C. § 1153 do not apply to ACDUTRA or INACDUTRA service. Id; see also Acciola v. Peake, 22 Vet. App. 320 (2008). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith, 24 Vet. App. at 47. 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 ACDUTRA service alone. With respect to a claim for aggravation of a preexisting condition during ACDUTRA, the claimant must provide direct evidence both that a worsening of the condition occurred during the period of ACDUTRA and that the worsening was caused by the period of ACDUTRA. Smith, 24 Vet. App. at 48. 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." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he injured his neck and upper back due to the use of night vision goggles during flight operations beginning in 1986 and that the disability was aggravated by his active service in Southwest Asia. The Veteran's service treatment records include normal examinations of the spine during his first period of service. In January 1973, April 1975, December 1980, March 1984, April 1985, April 1986, April 1987, April 1988 and April 1989 Reports of Medical History, the Veteran denied current or past recurrent back pain, painful or "trick" shoulder or elbow, neuritis, or arthritis. At this time, he did report a history of left foot and left knee problems. Contemporaneous Reports of Medical Examinations included normal examinations of the spine and upper extremities. In an April 1990 Report of Medical History, the Veteran reported a history of recurrent back pain. Specifically, he described a back sprain in July and November of 1989 with no reoccurrence and no current medication. A contemporaneous Report of Medical Examination included normal examinations of the spine and upper extremities. In November 1990 and April 1991 Reports of Medical History, the Veteran denied current or past recurrent back pain, painful or "trick" shoulder or elbow, neuritis, or arthritis. In contemporaneous Reports of Medical Examination the Veteran had normal examinations of the spine and upper extremities. In a July 1991 Report of Medical History, the Veteran denied current or past recurrent back pain, painful or "trick" shoulder or elbow, neuritis, or arthritis. July 1991, April 1992, April 1993, May 1994, June 1995, April 1996 and April 1997, Reports of Medical Examination included a normal examination of the spine and upper extremities. In April 1996 and April 1997 Reports of Medical History, the Veteran reported a history of recurrent back pain that in April 1996 was described as mid-back pain that occurred on occasion without injury or other cause while in April 1997 the Veteran was noted to have "no significant current complaints." During a June 2015 Examination for Housebound Status or Permanent Need for Regular and Attendance the Veteran reported pain in the upper extremities with neck movement. The private physician who performed the examination noted that the Veteran had advanced multiple sclerosis, citing symptoms associate with the neck and upper extremities. The Veteran was afforded a VA neck examination in October 2015. The examiner diagnosed cervical strain, degenerative arthritis of the spine, and intervertebral disc syndrome. The Veteran reported chronic upper and lower back pain. He claimed the pain was due to an undiagnosed illness. The Veteran also underwent a VA back examination in October 2015. The examiner diagnosed lumbosacral strain and degenerative arthritis of the thoracic spine. Following examination, the examiner concluded that there was insufficient documented medical records showing a neck / cervical spine disability in the claims file. As to the diagnosed thoracic spine arthritis, the examiner concluded that it was at least as likely as not that the disability had a pre-existing joint / muscle pain condition prior to his active service in Southwest Asia. The rationale indicated that there was a disease with a clear and specific etiology and diagnosis. In a January 2016 statement, the Veteran stated that his upper back and neck pains and muscle spasms beginning in early 1986. "I suffered a stiff neck and a sharp pain between my shoulder blades. I also found on one flight as I reached across the instrument panel to point something out to the other pilot, I experienced a stabbing pain between the shoulder blades, which did not go away. The first Doctor I visited wanted to put me on muscle relaxers, I did not want to jeopardize my flight status and refused... It is my belief that my neck and back issues started due to the additional weights placed on our helmet." An April 2016 statement from the Veteran included his argument that wearing night vision goggles caused his neck issues. He flew for several years without issues before the Veteran started wearing and using night vision goggles. "Shortly after I started using the devices, I started having issues with my neck. These issues started while a member of the Missouri National Guard assigned as a helicopter pilot. While serving in the Gulf War and flying, it was necessary to do a running landing in the helicopter to alleviate the dust which caused visual problems in landing. Accomplishing this type of landing also caused the head to 'bobble' which seemed to muscle spasms, I do however still have pain when I move my head and I am unable to turn my head and must turn my body as to check traffic when driving." As to the absence of any evidence of ongoing neck / upper back problems, the Veteran reiterated that the problems started while flying in the National Guard. "As a member of the National Guard I did not have access to medical treatment provided by the military so all treatment for my back and neck was accomplished through my personal medical insurance. I was required to have a Class II flight physical performed yearly. As an aviator we were cautious as to listing anything which would 'ground' us. I did mention it during the physical dated 17 April 1990 (copy attached) to the flight surgeon, who told me there wasn't much he could do. My civilian occupation and hobbies did not expose me to activities which would cause or aggravate my issues and as mentioned before I was able to associate the beginning and continuation of my injury with the use of the [night vision goggles]." An undated statement from a private chiropractic record documented the Veteran's report of pain radiating from the upper thoracic spine to the left shoulder and down the arm. There was pain along the medial margin of the left scapula. The chiropractor noted treatment in December 1986, 3 occasions in December 1989, January 1990, May 1995, March 1996, January 2009, April 2009, December 2011, June 2012, September 2014, and July 2015. In a February 2017 statement the Veteran reiterated that even if an individual complained of problems during annual physicals in the National Guard that the individual remained responsible for getting treatment. In addition if the individual reported problems medical personnel could ground you. The Veteran had a hearing before an RO representative in June 2017. He stated that after beginning to use night vision goggles during training he experienced muscle spasms between his shoulder blades. The Veteran then went to a chiropractor who believed that the problem was due to muscle spasms. The Veteran did not want to take muscle relaxers because their use would have grounded him. At present, the Veteran did not have the shooting pains that he had previously, but had ongoing limited movement. The Veteran believed that the weight of the goggles caused the neck / upper back problems. Thus, the Veteran has current neck / upper back disabilities. As such, the crucial inquiry is whether these diagnosed disabilities were incurred in or are otherwise caused by the Veteran's active service or subsequent National Guard service. The Board concludes that the preponderance of the evidence indicates they are not. The Veteran's service treatment records from his first period of service include no complaints, treatment, or diagnosis of a neck and/or upper back disability. The Veteran does not contend onset of his problems during this period of service. There is no medical evidence attributing his current disabilities to his first period of active service. As such, further consideration of the Veteran's first period of service as a basis for granting entitlement to service connection is unnecessary. The Board has considered the Veteran's allegations that his current neck and upper back arthritis is due to his wearing night vision goggles during flight operations. These incidents occurred both during his active duty and training with the National Guard. The Board notes, however, that the first mention of problems was in April 1990, at which time the Veteran indicated only a past back sprain that had fully healed with no residuals. Had there been ongoing back problems from 1986, as now claimed, the Veteran would have reported such problems. The Board acknowledges the Veteran's current contentions that he did not report ongoing problems because of a fear of being grounded and that there was no point in reporting problems because treatment would have been his responsibility with no help from the National Guard. The Board fails to understand, if that were the case, why the Veteran would report even the past instance of a back sprain. If his concern was being grounded, then any report of past back problems could lead to an examination that would show then current problems, which he now claims were ongoing at that time. The Board also finds it difficult to reconcile the foregoing with the April 1996 and April 1997 reports of a recurrent history of back pain. If the Veteran were concerned of being grounded for ongoing back or neck problems, the Board fails to understand why he would report problems in 1996 and 1997, but not on prior occasions. Moreover, if the Veteran understood that a back disorder would result in grounding, then he also understood that this disorder if present would adversely affect flying safety and effectiveness and would endanger others including a co-pilot and crew. As to the 1996 and 1997 complaints, in 1996 the Veteran described intermittent mid-back pain. By April 1997, however, the Veteran indicated that he had no significant complaints, which speaks against ongoing significant problems. Thus, the contemporaneous service treatment records fail to document a history of chronic neck or upper back problems with onset in active service, that otherwise were caused by service, or are the result of an injury during any period of ACDUTRA or INACDUTRA. The Board has considered the private chiropractor's letter documenting intermittent treatment from December 1986 to July 2015 for pain radiating from the upper thoracic spine to the left shoulder and down the arm. This letter, however, fails to suggest the cause of the reported problems or in any way attribute the problems to the Veteran's active service or National Guard service. The Board also finds it significant that during his October 2015 VA examinations the Veteran attributed his neck and back pain to an undiagnosed illness associated with his service in Southwest Asia. This contention weighs against the Veteran's current claims that the neck and upper back pain and limited motion are due to wearing night vision goggles with symptom onset in 1986 because the Veteran's service in Southwest Asia was not until multiple years after 1986. Had the Veteran been experiencing ongoing neck and upper back pain from 1986, as he now claims, the Board finds it reasonable to conclude that in October 2015 he would not attribute that same pain to service in Southwest Asia occurring years after 1986. Given all the above inconsistencies, the Board affords the Veteran's current contentions no probative weight. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and the claim must be denied. See 38 U.S.C. § 5107(b); see generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. J. Houbeck, 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.