Citation Nr: 22012086 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 17-41 539 DATE: March 2, 2022 REMANDED Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. Entitlement to service connection for cervical radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from September 1983 to September 1989. She served additional time in the Air Force Reserves and had ACTDUTRA from October 2005 to April 2006, June 2006 to March 2007, December 2008 to September 2009 and November 2009 to May 2010. This August 2017 appeal comes before the Board of Veterans' Appeals (Board) from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), in Houston, Texas. In accordance with her request on appeal, the Veteran was afforded a September 2021 Board hearing. 1. Entitlement to service connection for degenerative arthritis of the cervical spine is remanded. 2. Entitlement to service connection for cervical radiculopathy is remanded. The Veteran contends that her degenerative arthritis of the cervical spine and cervical radiculopathy are due to an injury in 2005 during ACDUTRA. Service connection may be granted for disability resulting from disease or injury incurred during ACDUTRA or injuries incurred during INACDUTRA, or from an acute myocardial infarction (heart attack), a cardiac arrest or a cerebrovascular accident (stroke), which occurred during such training. 38 U.S.C. §§ 101(24), 106; 38 C.F.R. § 3.6(a). Service connection is not legally merited when the disability results from a disease process during INACDUTRA. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). ACDUTRA is full time duty for training purposes performed by Reservists and members of the National Guard pursuant to 38 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty, other than full-time duty, performed for training purposes by Reservists and members of the National Guard pursuant to 38 U.S.C. §§ 316, 502, 503, 504, or 505. 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). The Veteran testified that prior to her service in the Air Force Reserves, she was in a motor vehicle accident in October 1999 resulting in a low back injury, however she denied injuring her neck in the accident. See September 2021 Hearing Transcript at 3-4. She stated that she underwent a complete physical examination prior to enlistment in the reserves and was medically cleared. Id. During a July 2004 examination, the Veteran disclosed her lumbar spine surgery in 2000 as a result of the earlier motor vehicle accident and was deemed medically qualified for service. See March 2013 Service Treatment Records. However, during a January 2000 medical assessment, the Veteran reported being injured in October 1999 motor vehicle accident and feeling stiffness in her neck and back within 30 minutes of the accident. See March 2015 Medical Treatment Records. X-rays indicated minimal cervical spine degeneration and the Veteran was diagnosed with mild cervical spondylosis. Id. While the Veteran testified that she did not have any cervical spine conditions before entering reserve service the medical evidence indicates her cervical spine condition was pre-existing. Regardless, as the Veteran only had periods of ACDUTRA and INACDUTRA after her October 1999 motor vehicle accident, no presumptions, to include the presumptions of soundness and aggravation, apply. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Arthritis is considered a disease, and Reservists are only eligible for service connection for diseases incurred in or aggravated during periods of ACDUTRA. However, since arthritis is a disease that can develop from an injury, the Board must consider if there was an injury of the cervical spine during a period of ACDUTRA or INACDUTRA, that may have aggravated the Veteran's pre-existing degenerative arthritis of the cervical spine and resulting cervical radiculopathy. During a November 2010 VA examination the Veteran reported that her cervical spine conditions started in 2005 when she was injured while moving computers. The examiner diagnosed her with cervical spine intervertebral disc syndrome (IVDS) with degenerative arthritis and long thoracic nerve impairment. The examiner failed to provide a nexus opinion. In a July 2014 medical opinion, the examiner opined the Veteran's cervical spine conditions were caused by the October 1999 motor vehicle accident and were not caused by, or the result of her active or reserve duty. Further the examiner opined the Veteran's systems were a natural progression of her condition. The examiner failed to consider the Veteran's lay statements that she injured her neck during ACDUTRA in 2005 or the corresponding medical treatment records. The examiner also failed to provide adequate rationale in support of their conclusions that the Veteran's cervical condition was not caused or aggravated by service. Therefore, the Board finds the medical opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical report cannot merely draw conclusions from data; it should include "a reasoned medical explanation connecting the two"). In a September 2014 medical opinion, the examiner confirmed a 1999 diagnosis of cervical spine degenerative disc disease and noted a 2010 diagnosis of cervical radiculopathy. The examiner opined the Veteran's cervical spine condition, which they attributed to the 1999 motor vehicle accident, was not aggravated beyond the normal progression of the disease by her military service. In support, the examiner stated that there was no evidence of a traumatic event that precipitated a worsening of the Veteran's symptoms, or evidence that the condition worsened beyond the normal progression. The examiner disregarded the Veteran's lay statements and corresponding medical treatment records of her reported 2005 injury during ACDUTRA. Further, it is unclear from the examination whether the Veteran's 2010 diagnosis of cervical radiculopathy is a natural progression of the pre-existing cervical spine condition. Therefore, the Board finds the medical opinion is inadequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (holding that a medical report cannot merely draw conclusions from data; it should include "a reasoned medical explanation connecting the two"). Remand for a new VA examination is warranted. The matters are REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an appropriate medical professional regarding the nature and etiology of all the Veteran's current cervical spine conditions including her degenerative arthritis and radiculopathy. The claims file should be made available for review, and the examination report should reflect that such review occurred. Following the review of the record and examination, the examiner should respond to the following: a. For the Veteran's period of ACDUTRA from October 17, 2005 to April 28, 2006, provide an opinion whether any cervical spine condition, including degenerative arthritis and radiculopathy, 1) had its onset during the service period or 2) was aggravated during the service period. b. For the Veteran's period of ACDUTRA from June 12, 2006 to March 28, 2007, provide an opinion whether any cervical spine condition, including degenerative arthritis and radiculopathy, 1) had its onset during the service period or 2) was aggravated during the service period. c. For the Veteran's period of ACDUTRA from December 1, 2008 to September 30, 2009, provide an opinion whether any cervical spine condition, including degenerative arthritis and radiculopathy, 1) had its onset during the service period or 2) was aggravated during the service period. d. For the Veteran's period of ACDUTRA from November 30, 2009 to May 31, 2010, provide an opinion whether any cervical spine condition, including degenerative arthritis and radiculopathy, 1) had its onset during the service period or 2) was aggravated during the service period. e. For the Veteran's periods of INACDUTRA from August 2004 to May 2010, provide an opinion whether any cervical spine condition, including degenerative arthritis and radiculopathy, was caused by, or related to, an injury during the service period. "Aggravation" is defined as a permanent worsening beyond the natural progression of the disease. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation. It should be noted that the Veteran is competent to attest to observable symptomatology. The examiner's opinion must include a discussion regarding the Veteran's statements concerning the in-service onset of the claimed condition and the continuity of symptomatology she has experienced since service. The examiner is reminded that a medical opinion based solely on the absence of documentation in the record or that does not address the Veteran's reports of symptoms and history is inadequate. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed should be provided as the Board is precluded from making medical findings. A discussion of the facts and the medical principles involved will be of considerable assistance to the Board, including citation to any supporting medical treatises. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Aubee, 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.