Citation Nr: 21042808 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-44 917 DATE: July 13, 2021 ORDER Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for lumbar spine disability is denied. Entitlement to non-service-connected pension is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a cervical spine disability that had its onset in service or is otherwise related to any in-service disease, injury, or event. 2. The preponderance of the evidence is against finding that the Veteran has a lumbar spine disability that had its onset in service or is otherwise related to any in-service disease, injury, or event. 3. The Veteran did not serve on active military, naval, or air service: (1) for 90 days or more during a period of war; (2) during a period of war and with discharge or release from service for a service-connected disability; (3) for a period of 90 consecutive days or more with such period beginning or ending during a period of war; or (4) for an aggregate of 90 days or more in two or more separate periods of service during more than one period of war. CONCLUSIONS OF LAW 1. The criteria for service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for entitlement to non-service-connected disability pension benefits are not met. 38 U.S.C. § 1521; 38 C.F.R. §§ 3.2, 3.3, 3.6. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 13, 1994 to August 12, 1994. In March 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the record must contain: (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). A layperson is competent to report on the onset and continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Analysis The Veteran contends that he has cervical and lumbar spine disabilities that are due to military service. The Veteran's service treatment records (STRs) do not document a diagnosis for a cervical or lumbar spine disability. During his April 1993 Marine Corps Reserve Enlistment exam, the Veteran's spine and other musculoskeletal systems were noted to be normal. In January 1994, the Veteran was counseled for deficiencies, i.e., he was an unsatisfactory participant in the SMCR, evidenced by his prior (5) unexcused absences and total disregard for Marine Corps policies and procedures. In order to correct his deficiencies, the Veteran was instructed to attend every scheduled drill, on time, with the proper uniform, haircut, and equipment as was expected of all Marines assigned to the unit. The administrative note also stated that the Veteran should discard his poor attitude and reestablish himself as a team player, ready, willing, and able to support his unit. On May 1, 1995 and due to his failure to participate, the Veteran was discharged from the Marine Corps Reserve. During his March 2021 Board hearing, the Veteran stated that while in service, he was about 140 pounds. His disabilities are due to strain. Also, he fell off a truck, and he began having problems with both his neck and back. The Veteran's post-service treatment records do not document complaints, treatments, or diagnosis of a cervical or lumbar spine disability. The Board notes that neither the Veteran's STRs nor his post-service treatment records document complaints, treatments, or diagnosis of a cervical or lumbar spine disability. Based on the evidence of record, the Board concludes that the Veteran does not have a diagnosis for cervical or lumbar spine disability. As such, element one under Shedden is not met. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). The Board acknowledges the Veteran's statements that he suffers from cervical and lumbar spine disabilities that are related to service. The Veteran, as a lay person, is competent to report symptoms he can personally observe. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is also competent to diagnose a simple medical condition, capable of lay observation. However, medical expertise and clinical testing is typically required to determine the underlying disorder and etiology of pain. The record does not reflect that the Veteran has the necessary level of medical expertise to competently determine the underlying cause of his alleged cervical or lumbar spine disability or relate the disability to service. Rather, this is a complex medical matter which involves clinical tests to adequately analyze the anatomical processes involved. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that the Veteran was not afforded a VA examination nor was an opinion obtained for his alleged disabilities; however, neither an examination nor an opinion is warranted as the duty to assist has not been triggered. See McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Although McClendon sets a low bar, that bar has not been met here as there is no indication of a link between a diagnosed condition and active service. As noted above, there is no medical evidence of a diagnosis of cervical or lumbar spine disability. The only evidence of possible diagnosed conditions and connection between the conditions and service are the Veteran and his representative's own broad and conclusory statements that the Veteran has diagnosed conditions that are related to service, and such statements are not sufficient to trigger VA's obligation to obtain an examination or opinion. See Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010) (holding that conclusory lay assertion of nexus is insufficient to entitle claimant to provision of VA medical examination). Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and service connection for cervical and lumbar spine disabilities is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Non-service-connected pension A veteran meets the service requirement of wartime service if he or she served in the active military, naval, or air service (1) for ninety days or more during a period of war; or served during a period of war and was discharged or released from such service for a service-connected disability; (2) or served in the active military, naval, or air service for a period of ninety consecutive days or more and such period began or ended during a period of war; or (3) served in the active military, naval, or air service for an aggregate of ninety days or more in two or more separate periods of service during more than one period of war. See 38 U.S.C. § 1521(j); 38 C.F.R. § 3.3(a)(3). The term "period of war" for pension purposes means the Mexican Border Period, World War I, World War II, the Korean conflict, the Vietnam era, the Persian Gulf War, and the period beginning on the date of any future declaration of War by the Congress and ending on the date prescribed by Presidential proclamation or concurrent resolution of the Congress. 38 U.S.C. § 1501(4); 38 C.F.R. § 3.2. As applied to the facts of this case, the term "active duty" means full-time duty in the Armed Forces, other than active duty for training. See 38 U.S.C. § 101(21)(A). The term "active duty for training" means full-time duty in the Armed Forces performed by Reserves for training purposes. See 38 U.S.C. § 101(22)(A). The term "active military, naval, or air service" includes active duty; and any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101(24)(A), (B). Analysis The Veteran contends that he is entitled to pension benefits. The threshold issue to address in a pension case is whether the Veteran has the requisite period of wartime service. If that issue is answered in the affirmative, the additional issues of permanent and total disability and net worth and income requirements will then be addressed. However, if the Veteran does not have the requisite wartime service, there is no need to proceed further, or to address any other related issue. The Veteran served on active duty from June 13, 1994 to August 12, 1994. Additionally, the Veteran's Military Personnel Records notes that he was enlisted in the Marine Corps Reserve for a period of eight years beginning on April 7, 1993. However, he was discharged on May 1, 1995 due to his failure to participate. During his March 2021 Board hearing, the Veteran, through his representative, stated that the Veteran enlisted on April 7, 1993. On May 1, 1995, he was discharged from the Marine Corps pursuant to an order, and there was a February 24, 1995, recommendation for discharge. The representative stated that VA relied on the Veteran's DD-214 which stated that the Veteran had service from June 13, 1994 to August 13, 1994. The representative stated that another record noted that on January 9, 1994, the Veteran was reprimanded for being AWOL. The representative wondered how the Veteran could have been reprimanded if he was not on active duty. However, based on a review of the record, the Board finds that the criteria for non-service-connected pension benefits have not been met, because the Veteran does not have the requisite period of wartime service. See 38 U.S.C. §§ 1501, 1521; 38 C.F.R. §§ 3.2, 3.3. The Board acknowledges that the Veteran's period of service was during the Gulf War era and, therefore, was during a period of war. See 38 C.F.R. § 3.2(i). However, he served on active duty from June 13, 1994 to August 13, 1994, i.e., he only served on active duty for 62 days before he was discharged. The Board notes that the Veteran had a period of active duty for training (ACDUTRA) from April 7, 1993 to May 1, 1995. Although the Veteran's representative noted that the Veteran was active duty during this period, as noted above, the Veteran's Military Personnel Records note that he was enlisted in the Marine Corps Reserve for a period of eight years beginning on April 7, 1993 and was discharged on May 1, 1995. However, assuming arguendo that the Veteran's verified ACDUTRA period fulfilled the requirement of 90 days of military service, 38 C.F.R. § 3.6(b)(1) specifically exempts ACDUTRA from the definition of active duty. ACDUTRA is not active duty, and the law draws a clear distinction between the two. Additionally, the Board notes that the Veteran did not have any period of ACDUTRA during which he was disabled or died from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101(24)(A), (B). In summary, the Veteran does not have the requisite service in the active military, naval, or air service for 90 days or more during a period of war and was not disabled from a disease or injury incurred or aggravated in the line of duty during a period of ACDUTRA. Thus, the claim for non-service-connected pension benefits must be denied due to the lack of entitlement under the law. The Board sympathizes with the Veteran, but it is bound by the law and is without authority to grant benefits on an equitable basis, regardless of financial need. See 38 U.S.C. §§ 511, 7104; see also Kelly v. Derwinski, 3 Vet. App. 171, 172 (1992) (noting that VA cannot extend benefits out of sympathy for a particular appellant, further noting that a law that is plain is binding and leaves nothing for interpretation.). Accordingly, the claim must be denied. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Moore, Tara-Deen 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.