Citation Nr: 21042095 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 16-35 987 DATE: July 12, 2021 ORDER Entitlement to service connection for a thoracolumbar spine disability is denied. FINDING OF FACT The most probative evidence of record does not relate the Veteran's current thoracolumbar spine disability to active service. CONCLUSION OF LAW The criteria for service connection for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1981 to February 1985, he additionally had a period of active duty for training (ACDUTRA) from July 29, 2007, to August 21, 2007, and multiple periods of ACDUTRA and inactive duty training (INACDUTRA) with the Air Force Reserve until May 2013. This matter comes before the Board of Veterans' Appeals (Board) from a December 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Board remanded the claims of service connection for spine disability and service connection for tinnitus. An August 2020 rating decision granted service connection for tinnitus which is a complete grant of the benefit sought on appeal. Accordingly, that issue is no longer on appeal. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in July 2013. The RO associated the Veteran's service and VA treatment records with the claims file. No other relevant records have been identified and are outstanding. In July 2019, the Board remanded the Veteran's claim to the RO to make efforts to verify the Veteran's periods of active duty and Air Force Reserve service, to include periods of ACDUTRA and INACDUTRA in the Air Force Reserve and "if needed," to compile a complete list of any verified periods of active duty, ACDUTRA, and INACDUTRA during the Veteran's Air Force Reserve service. On remand, the RO obtained additional medical records from the Veteran's Reserve service, records from the Department of Defense, leave and earnings statements from Defense Finance Accounting Service, and evidence from the Veteran. Though the RO did not provide a list of dates, the Board finds that the Board's remand directives have been substantially completed and further development is not warranted. The RO obtained records from the appropriate sources, and requested any evidence in the Veteran's possession concerning any ACDUTRA and INACDUTRA dates. In addition, remanding for further development is not required because there is no evidence of back symptoms during the Veteran's active duty or Reserve service until the Veteran reported a bulging disc in 2013 that was not verified by any record and the Veteran continued to deny symptoms in 2013 before he retired. Moreover, the 2016 VA opinion considered all medical records available that were dated not only during the Veteran's verified active service but also during his time in the Reserve which were found to not support the Veteran's claim. Thus, while the Board acknowledges that the Veteran had periods of ACDUTRA and INACDUTRA during his Reserve service, the medical records dated during the Veteran's active service and duty in the Reserve do not show any symptoms or physical examination findings pertaining to the back and the Veteran has not alleged that he suffered an injury during a period of ACDUTRA or INACDUTRA. He instead alleges that his duties as an aircraft mechanic caused his disability and there is no indication that he was performing those duties during periods of training. Accordingly, the Board may proceed with a decision. In 2016, an adequate VA examination and opinion was provided. The examiner reviewed the claims folder and provided an opinion with supporting rationale. Though that VA opinion was provided before all records were associated with the claims folder, the additional relevant records are largely personnel or duplicative. In addition, the additional medical records associated with the claims folder from the Veteran's time in the Reserve make no mention of the Veteran's back or are otherwise duplicative of the records reviewed by the examiner and a 2020 VA examination report simply confirmed a diagnosis and provided physical examination findings. Thus, remand for an additional etiology opinion is not required and VA has satisfied its duty to assist. Neither the Veteran nor his representative have raised any 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). 1. Entitlement to service connection for thoracolumbar spine disability Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record must contain competent evidence of: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Some chronic diseases, such as arthritis, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year from separation. There is no evidence of arthritis within one year after separation from active service and presumptive service connection is not warranted. For those above listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The Veteran's service consisted of active duty, and reserve duty service. Reserve duty generally includes ACDUTRA and INACDUTRA. 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). For VA purposes, ACDUTRA covers the annual two-week training that each Reservist must perform each year and the Reservist'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). Essentially, 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. While service connection may be granted for a disability resulting from either a disease or injury incurred during ACDUTRA, it may only be granted for injuries suffered during INACDUTRA. 38 U.S.C. §§ 101(24), 106. The term "injury" is strictly limited to bodily damage inflicted by an external force, or an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident. 38 U.S.C. § 101(24)(C). The 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 that manifest to a degree of 10 percent or more within a specified time after separation from service, do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). The Veteran contends that his current disability is related to a combination of his active duty service and his job duties in the Air Force Reserve. He stated that his duties as an aircraft mechanic required lifting heavy equipment and working around and on heavy transport. The current medical treatment records and VA examination reports demonstrate a current disability. The 2020 VA examination report shows a diagnosis of lumbosacral strain. An August 2013 VA examination report shows a diagnosis of degenerative disc disease. In March 2013, prior to his retirement in May 2013, the Veteran requested service connection for a low back disability that reportedly had its onset in 1983 and was not treated. Personnel records from his duty in the Air Force Reserve show that the Veteran was relieved from his current assignment in December 2012, was assigned to the retired reserve section, and informed that he would be assigned to the retired reserve in May 2013. Medical records dated throughout the Veteran's active service and Reserve service do not reflect any complaints of back pain or objective physical examination findings related to the back. A November 1984 report of medical examination shows that the Veteran's spine was clinically evaluated as normal and the corresponding report of medical history shows that the Veteran denied recurrent back pain. A January 1987 report of medical examination shows that the Veteran's spine was clinically evaluated as normal. In June 1991, the Veteran's spine was clinically evaluated as normal and he denied recurrent back pain in a report of medical history. In May 1996 and October 2001, the Veteran's spine was clinically evaluated as normal and he denied recurrent back pain in reports of medical history. In February 2001, the Veteran explicitly stated that he had no physical limitations. In May 2003, the Veteran indicated that he engaged in heavy exercise and that he did not have any orthopedic problems. In May 2011, the Veteran denied any current medical problems or symptoms that bothered him. In 2013, the Veteran indicated a history of a bulging disc but did not report back pain or back symptoms. In fact, in January 2013, the report of medical assessment for the purposes of retirement shows that the Veteran reported numerous ailments, but did not mention his back. In March 2013, the Veteran filed for service connection for a back condition. An August 2013 radiology report shows an impression of spondylosis and mild disc degeneration at L1-L2. In August 2013, the Veteran was provided a VA examination. The Veteran reported that the date of onset of his disability was in 1991. He stated that the condition began while working on aircrafts and engines and his back would hurt when carrying or lifting heavy engines. He constantly would pull on his back. The report shows diagnoses of compression fracture, T6, with spondylosis and degenerative disc disease with spondylosis, lumbar spine. A December 2014 disability benefits questionnaire provided by the Veteran shows that the Veteran's claims folder was not reviewed. The physician opined that the Veteran had lower back pain that impacted mobility and it was more likely than not caused by his 33 years of service in the U.S. Air Force. Concerning the medical history of the disability, the Veteran reported regular back pain for the past 10 years. The Board assigns little probative value to this opinion. First, the physician appears to mistakenly believe that any period of enlistment in the Reserve, even if not INACDUTRA or ACDUTRA, may qualify a veteran for service connection for a disability related to that period. However, again, the injury must occur during a period of INACDUTRA or ACDUTRA. Second, the physician did not provide adequate reasoning for the expressed opinion and did not reference any records during the Veteran's active duty to support the opinion. In January 2016, the Veteran was provided a VA spine examination. The report shows diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran explained that his condition began during active duty in 1984. He was an aircraft maintenance specialist and lifted a lot of heavy equipment manually and was always pulling a muscle or hurting his back. He stated that he did not seek medical attention at the time because he did not want to affect his flight status. The Veteran reported that his condition worsened over the past 30 years. The January 2016 VA examiner provided a negative etiology opinion. The examiner noted review of the Veteran's medical and other records from the dates of active duty, along with more recent records during reserve duty and retirement. During active duty, the examiner stated that there was no evidence of any back injury or any back condition. There was no evidence of any back condition in the reports of medical history and medical examination from 1987 to 2013. During that time, the Veteran also reported being active in "heavy" aerobic exercise. The first complaint of back pain was not until August 2013 and x-rays indicated a 15 percent loss of T6 anteriorly and minimal spondylosis in the T-spine and mild degenerative joint disease of the L-spine. The examiner found that there was no evidence that these symptoms began or were caused by events during active duty. In July 2020, the Veteran was provided a VA examination. The Veteran reported that his disability onset in 1982. As an aircraft mechanic on active duty in the Air Force, the Veteran reported that he would lift heavy equipment that damaged his back on a regular basis. The Veteran stated that when his condition began, he experienced extreme pain in the lower and middle back after lifting heavy equipment. In this case, the Board finds that the most probative evidence does not support a finding of service connection for a thoracolumbar spine disability. Here, the record shows that the Veteran has verified active duty periods from February 1981 to February 1985 and a period of ACDUTRA from July 29, 2007, to August 21, 2007, among other periods of ACDUTRA and INACDUTRA completed during his time in the Reserve. The 2016 VA examiner reviewed the medical records available for the Veteran's active duty service and his Reserve service, but found that the evidence did not show that his disability was related to active service given the Veteran's denials of any back-related problems for decades. Though the examiner indicated that the first complaint of a back condition was in August 2013 as opposed to March 2013 when he first filed for service connection for a back condition, the Board finds the examiner's opinion probative given that it is only a matter of months and the Veteran first described the symptoms associated with his claimed back disability in August 2013. Though the Veteran believes that his current disability is a culmination of his time on active duty in addition to his decades of Reserve service, he appears to believe that his time in the Reserve, irrespective of duty status, may qualify him for service connection. The Board must reiterate that a veteran must be on active duty, ACDUTRA, or INACDUTRA to qualify him for service connectionnot simply be a member of the Reserves. Moreover, the Veteran has not been shown to possess the requisite medical expertise or knowledge to opine that his current disability is related to active duty service as opposed to the years that he spent in the Reserve while not on active duty and his statements relating his disability to active service are not competent. See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011). Though the Veteran has generally asserted that his work as an aircraft mechanic caused back pain, he did not specify whether he performed these duties while on a period of ACDUTRA or INACDUTRA or whether he otherwise had an injury during a period of ACDUTRA or INACDUTRA. As explained in greater detail below, the Board finds the Veteran not credible concerning his reports of the onset of his back pain. The Veteran consistently denied any back pain from the 1980s through the 2000s. The first mention of the back was in 2013 when the Veteran was retiring. While the Veteran reported a history of a mid-back disc bulge, he also denied back symptoms several times in 2013 and did not complain of a back disability until he claimed service connection and there was no verified diagnosis until August 2013. Accordingly, the Veteran's statements do not support a finding of service connection. Moreover, the Board has also considered continuity of symptomatology. Though the 2020 VA examination report does not reflect a finding of arthritis, the earlier examination reports reveal such diagnoses. The Board finds that the Veteran is not credible concerning his reported onset of back symptoms. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). When filing for service connection, he first reported that his symptoms onset in the 1980s during his first period of active service. During his 2013 VA examination, he stated that his symptoms onset in the 1990s, after completion of that first period of active service. In the 2014 DBQ, it was indicated that the Veteran reported back problems for the past 10 years. Given these inconsistent statements in addition to the Veteran's denial of any back problems in the 1980s, 1990s, and 2000s, the Board finds that the Veteran is not credible as to the report of onset of his symptoms. As a result of the above, the Board finds that service connection is not warranted for a thoracolumbar spine disability. A preponderance of the evidence is against the claim and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.