Citation Nr: 21040699 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 20-24 461 DATE: July 6, 2021 ORDER Entitlement to service connection for a lumbar spine disorder is denied. Entitlement to service connection for a cervical spine disorder is denied. FINDINGS OF FACT 1. The appellant's lumbar spine disorder was not manifest in active duty for training (ACDUTRA) or in any period of ACDUTRA that may be considered as active duty, and is not otherwise attributable to ACDUTRA. 2. The appellant's cervical spine disorder was not manifest in ACDUTRA or in any period of ACDUTRA that may be considered as active duty, and is not otherwise attributable to ACDUTRA. CONCLUSIONS OF LAW 1. A lumbar spine disorder was not incurred in or aggravated by ACDUTRA or otherwise in any period of ACDUTRA that may be considered as active duty. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. A cervical spine disorder was not incurred in or aggravated by ACDUTRA or otherwise in any period of ACDUTRA that may be considered as active duty. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant had a period of ACDUTRA from May 1958 to November 1958 as well as subsequent service in the United States Army Reserve until March 1966. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a March 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). On the May 2020 VA Form 9, although he selected the option of not having a hearing before a Veterans Law Judge, the appellant appeared to indicate a request for a virtual hearing before a Veterans Law Judge. In order to clarify the hearing request, VA sent a letter dated September 2020 in which the appellant was to respond whether he desired a hearing before a Veterans Law Judge. The appellant was notified in the letter that in lieu of a hearing, he could submit a written statement. He selected the option of submitting a written statement in a response dated October 2020. In December 2020, the Board remanded the instant matters for additional development, namely to obtain an etiology opinion. Such examinations were associated with the record in April 2021. The appellant was then issued a Supplemental Statement of the Case on April 23, 2021. The Board accordingly reasserts jurisdiction. The Board further concludes that the appellant has been afforded substantial compliance with all previous remand directives. See Stegall v. West, 11 Vet. App. 268 271 (1998); Dyment v. West, 13 Vet. App. 141, 146-7 (1999); 38 U.S.C. § 5103A(b); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required pursuant to Stegall). Ultimately, the Board concludes that even if the appellant suffered a back or neck injury at any time on ACDUTRA or active duty, the preponderance of the evidence of record suggests that his current disorders are less than 50 percent likely attributable to same, and are instead most likely attributable to natural effects of aging or a more recent injury after discharge. For these reasons to be more fully explained below, the Board will deny the appellant's claims. This appeal has been advanced on the Board's docket on account of advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while performing ACDUTRA, or injury incurred while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110. Establishing service connection generally requires competent evidence of three things: (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. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Board acknowledges that complete service treatment records are unavailable, and when a service treatment records are unavailable through no fault of their own, the VA's duty to assist, duty to provide reasons and bases for its findings and conclusions, and duty to consider carefully the benefit-of-the-doubt rule, are heightened. Milostan v. Brown, 4 Vet. App. 250, 252 (1993) (citing Moore v. Derwinski, 1 Vet. App. 401, 406 (1991) and O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). 1. Entitlement to service connection for a lumbar spine disorder is denied. The appellant contends that he has a lumbar spine and a cervical spine disorder related to ACDUTRA and reserve duty, in particular from lifting and carrying heavy objects. See VA Form 21-526EZ (rec'd July 12, 2016), at Page 8, Question No. 11. As discussed above, the service treatment records are not available for review. However, the appellant is competent to report having to carry large equipment and engage in heavy lifting. The Board has no reason to doubt that the reports of back and neck pain are consistent with duties during ACDUTRA and reserve duty. The appellant only asserts that his back and neck pain are directly attributable to service, but there are no service treatment records available to corroborate any in-service injury or to ascertain the period of ACDUTRA from which a service-connected tinnitus arises. As such, the Board shall assume that an unavailable service treatment record exists to corroborate the appellant's assertions. The Board has carefully evaluated the evidence and finds that the preponderance of the evidence of record is against a finding that the current lumbar spine disorder is related to his ACDUTRA and Reserve duty. Specifically, VA examinations were ordered to develop the appellant's claims pursuant to the December 2020 remand, and these were performed in April 2021. The examiner opined that the appellant's current lumbar spine disorder is less than 50 percent likely attributable to any ACDUTRA or reserve event, because his first documented complaint of back pain was in 200547 years after discharge. The examiner further reasoned that the appellant's diagnosed conditions of degenerative disc disease and arthritis occur with aging and can lead to herniated discs and radiculopathy See VA Exam ( Apr. 20, 2021 ), at Section III, Questions Nos. 3b-c. While medical opinions that rely solely on absence of evidence from the record are inadequate, see Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau, supra, the Board concludes that this etiological opinion, for this appellant, is distinguishable from these. Here, the Board notes that on March 7, 2005, the appellant exhibited "[g]ood ROM (range of motion)" in the back. See Medical Treatment Record ( Mar. 7, 2005 ) (rec'd Aug. 26, 2016). Only in December 2005 did the appellant submit to a magnetic resonance imaging (MRI) scan that noted some degenerative changes, and then only in January 2007 did he complain of "stiffness in back, very stiff complaint of decreased range of motion lumbar spine." See id. (rec'd Aug. 26, 2016). The Board notes that the passage of several years between discharge from ACDUTRA and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In this case, the lack of any lay or medical evidence of related symptoms during or continuing after service, along with at least one affirmative denial of any such symptomatology, preponderates against a finding that his lumbar spine disorder manifested from a period of ACDUTRA, and would also preponderate against a finding that same is attributable to any active duty service. The Board places greater weight of probative value on the history the appellant presented to medical professionals for treatment purposes (i.e., during active service and years thereafter) than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In addition, the appellant's history of prior inconsistent statements weighs against his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). The Board has fully considered the benefit-of-the-doubt doctrine, 38 C.F.R. § 3.102, but the Board cannot escape the conclusion that the evidence of record is not at least evenly balanced in the appellant's favor. Instead, the preponderance of the evidence is against the appellant. See contra Gilbert, 1 Vet. App. at 54. The appellant appears to have denied back pain until 2005 at the latest, and only later claimed that the pain originated from ACDUTRA. This does not comprise "reasonable doubt" that can be resolved in the appellant's favor. The preponderance of evidence is against a finding that the appellant's lumbar spine disorder is related to service, or that it was manifest to a compensable degree within one year of discharge; therefore, the benefit of the doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. 2. Entitlement to service connection for a cervical spine disorder is denied. The appellant contends that he has a lumbar spine and a cervical spine disability related to ACDUTRA and reserve duty, in particular from lifting and carrying heavy objects. See VA Form 21-526EZ (rec'd July 12, 2016), at Page 8, Question No. 11. As discussed above, the service treatment records are not available for review. However, the appellant is competent to report having to carry large equipment and engage in heavy lifting. The Board has no reason to doubt that the reports of back and neck pain are consistent with duties during ACDUTRA and reserve duty. The appellant only asserts that his back and neck pain are directly attributable to service, but there are no service treatment records available to corroborate any in-service injury or to ascertain the period of ACDUTRA from which a service-connected tinnitus arises. As such, the Board shall assume that an unavailable service treatment record exists to corroborate the appellant's assertions. The Board has carefully evaluated the evidence and finds that the preponderance of the evidence of record is against a finding that the current lumbar cervical disorder is related to his ACDUTRA and Reserve duty. Specifically, VA examinations were ordered to develop the appellant's claims pursuant to the December 2020 remand, and these were performed in April 2021. The examiner opined that the appellant's current cervical spine disorder is less than 50 percent likely attributable to any ACDUTRA or reserve event, because his first documented complaint of back pain was in 201355 years after discharge. The examiner noted that the appellant's diagnosed degenerative disc disease and arthritis of the cervical spine as well as bilateral upper extremity radiculopathy occurs with aging in that degenerative changes cause the radiculopathy due to compression and the appellant also sustained a motor vehicle accident. See VA Exam ( Apr. 20, 2021 ), at Section III, Questions Nos. 3b-c. While medical opinions that rely solely on absence of evidence from the record are inadequate, see Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (2006); Jandreau, supra, the Board concludes that this etiological opinion, for this appellant, is distinguishable from these. Here, the Board notes that medical records explicitly identify the appellant's neck pain for which he sought treatment as "sudden with injury which occurred on 3/17/2013. The injury occurred in a [motor vehicle accident]. The patient was a driver. The patient was wearing a seat belt. ... The injury was caused by sudden change of direction." See Medical Treatment Record (Mar. 20, 2013) (rec'd July 24, 2016 ). There is no competent or credible evidence to suggest any other neck pain earlier than this; however, the appellant appears to have had "good ROM" in his back in 2005, as delineated above, and did not report any neck pain at that time either. The Board notes that the passage of several years between discharge from ACDUTRA and the medical documentation of the claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d. 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). In this case, the lack of any lay or medical evidence of related symptoms during or continuing after service, along compelling contemporaneous evidence that the appellant sought treatment for neck pain from a motor vehicle accident instead of longstanding pain from ACDUTRA, preponderates against a finding that his lumbar spine disorder manifested from a period of ACDUTRA, and would also preponderate against a finding that same is attributable to any active duty service. The Board places greater weight of probative value on the history the appellant presented to medical professionals for treatment purposes (i.e., during active service and years thereafter) than it does on his recent statements to VA in connection with his claim for monetary benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). In addition, the appellant's history of prior inconsistent statements weighs against his credibility. See Caluza v. Brown, 7 Vet. App. 498 (1995) (in determining whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, and consistency with other evidence submitted on behalf of a veteran). The Board has fully considered the benefit-of-the-doubt doctrine, 38 C.F.R. § 3.102, but the Board cannot escape the conclusion that the evidence of record is not at least evenly balanced in the appellant's favor. Instead, the preponderance of the evidence is against the appellant. See contra Gilbert, 1 Vet. App. at 54. The appellant appears to have specifically sought treatment for neck pain due to a 2013 motor vehicle accident, but he appears to only now proffer a theory that the pain originated from ACDUTRA. This does not comprise "reasonable doubt" that can be resolved in the appellant's favor. (Continued on the next page) The preponderance of evidence is against a finding that the appellant's cervical spine disorder is related to service, or that it was manifest to a compensable degree within one year of discharge; therefore, the benefit of the doubt rule does not apply and the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.