Citation Nr: 22014361 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 15-00 418A DATE: March 12, 2022 ORDER Service connection for cervical spine (neck) disability is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the appellant has a neck disability that had is onset during a period of active duty or is otherwise related to an injury or disease incurred during active duty. CONCLUSION OF LAW The criteria for service connection for neck disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served in the Army Reserves and had a period of active duty for training (ACDUTRA) from June 2000 to December 2000 and active duty support (ADS) from September 16, 2001, to September 28, 2001. The appellant has not established veteran status, as explained below. This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2012 decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the appellant testified before the undersigned Veterans Law Judge. A hearing transcript is associated with the record. More recently, in February 2021, the Board remanded the appeal for additional development. The Board finds that there has been substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). Entitlement to service connection for cervical spine disability The appellant contends that she has cervical spine disability due to injury incurred while on duty in September 2001. She testified that the injury resulted in a knot on the back and neck, and she had continuously been treated for her back since 2001. See Hearing Transcript (December 2018). She reported that, though doctors did not link neck pain to an injury in service, they could tell that it was not from normal wear and tear. Id. The Board concludes that, while the appellant has been diagnosed with cervical spine strain, the evidence of record persuasively weighs against finding that the appellant has neck disability that began during active service or is otherwise related to an injury or disease incurred during ACDUTRA or ADS. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. Service connection on a direct-incurrence basis requires competent and credible evidence showing: (1) the claimant has the claimed disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection may be established either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). That said, there is no presumption of soundness for ACDUTRA and inactive duty training (INACDUTRA) service, only active duty (AD), also no presumption of aggravation or presumptive service connection for those other types of service. See Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474, 476-78 (1991). Reserve and National Guard service generally means 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). Basically, this refers to the two weeks of annual training, which each Reservist or National Guardsman must perform each year. It can also refer to the Reservist's or Guardsman'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). Basically, this refers to the twelve four-hour weekend drills that each Reservist or National Guardsman must perform each year. To establish status as a "veteran" based upon a period of ACDUTRA, a claimant must establish that she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA. 38 C.F.R. § 3.1(a), (d); Harris v. West, 13 Vet. App. 509, 511 (2000); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The fact that a claimant establishes status as a "veteran" for purposes of other periods of service (e.g., AD) does not obviate the need to establish that he/she is also a "veteran" for purposes of the period of ACDUTRA where the claim for benefits is premised on that period of ACDUTRA. Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998). Similarly, in order for a claimant to achieve "veteran" status and be eligible for service connection for disability claimed during his/her inactive service, the record must establish that he/she was disabled from an injury, but not disease, incurred or aggravated during INACDUTRA. See Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). The VA Adjudication Procedure Manual, (VBA Manual M21-1MR) states that the term Active Duty Special Work (ADSW) (now described as Active Duty Support (ADS)), applies to those who are ordered to full-time but temporary duty for operational or support purposes for the Reserve or National Guard. The period of service can vary but is generally less than 180 days. Generally, if the facts establish that the service was full-time, and for operational or support services, as opposed to training, it may qualify as active duty. If, however, the evidence shows that the service was for training purposes, it does not qualify as active duty. M21-1 Part III, Subpart i.1.A.3.b. ADS for periods of less than 180 days is a type of ADT. If the period of ADS equals or exceeds 180 days, it is considered active duty. All periods of ADS for the Reserves for operational support are considered active service regardless of length of service. ADS periods of less than 180 days are generally recorded on an official order document in the service personnel records. A DD Form 214 is not routinely issued for ADS periods of 180 days or less. M21-1MR, Part III, Subpart ii.6.A.2.d. Here, a September 28, 2001, Statement of Examination and Duty Status reflects the appellant was injured while on "Active Duty for Training ADSW." Accordingly, as the appellant was on ADS, the period from September 16, 2001, to September 28, 2001, may be considered active duty service. Reserves service treatment records (STRs) reflect that, in September 2001, the appellant pulled her low back in the line of duty while moving furniture in a warehouse. See STR (August 2005). A December 2001 Reserves Line of Duty Report documented low back pain due to lifting/strain which was "typically a routine minor medical injury." Id. STRs reflect no complaints of or treatment for neck pain or abnormal finding pathology of the cervical spine. A May 2005 physical examination for Reserves Medical Board Evaluation reflects the appellant was released without limitation. See STR (April 2006). In August 2005, VA received an original VA disability claim from the appellant, but it did not include any report of neck injury or disability. See VA Form 21-526 (August 2005). However, not long after this, the appellant reported she injured her lower back when she "landed upside down on [her] neck and [her] back hit a concrete wall." See VA 21-4138 (October 2005). VA construed this statement as a claim for service connection for neck disability. A July 2006 rating decision denied service connection for neck disability because the evidence did not show the presence of disability. See Rating Decision (July 2006). The appellant did not appeal. In an August 2012 statement, the appellant submitted a request to reopen her prior disability claim. See VA 21-4138 Statement in Support of Claim (August 2012). VA construed this to be a request to reopen the claim for service connection for neck disability, among other things. An October 2012 rating decision denied the appellant's claim. See Rating Decision (October 2012). This appeal arises from the appellant's disagreement with this decision. VA treatment records first document neck symptoms, pain, in July 2014, over a decade after the appellant's in-service low back injury. See CAPRI (September 2014). An October 2014 new patient consult shows a diagnosis of cervical neck pain. See CAPRI (August 2017). November 2019 MRI results were "essentially normal." Id. Reports of neck pain are next documented in October 2019. See CAPRI (December 2019). An October 2021 VA examination diagnosed cervical strain. See C&P Exam (October 2021). By history, the appellant "went airborne" and was trapped between a heavy panel and the wall in service when the person on the other end of a panel they were lifting dropped that end. She reported that her back started swelling after the incident but she did not report neck pain or disability. She denied treatment specifically for her neck, and the examiner noted that "much of the description is of back and generalized pain, not the neck." The examiner opined that it is less likely than not that the appellant's cervical strain was incurred during active duty including during her duty and reported injury in September 2001 based on the appellant's history of injury and symptoms, and medical findings. For instance, the examiner noted that the record reflects no notable neck complaints following the September 2001 warehouse injury or after the car accident; that examination disclosed no functional limitations specific to the neck and only sporadic neck complaints that dated many years after the injury in 2001, specifically neck complaint essentially dated from 2010 to present. Here, the competent, credible evidence of record shows that a neck disability did not have its onset in service and is not otherwise etiologically related to injury or disease incurred during ACDUTRA or ADS. In this regard, neither the lay nor the medical evidence reflects the appellant had a specific injury to the neck or cervical spine area during any period of active duty, to include during ADS in September 2021, or that she has had continued neck symptoms since. Reserve STRs and post service treatment records show no documented complaints, history of neck injury, or abnormal pathology of the cervical spine for many years after the appellant's ACDUTRA and ADS. The Board recognizes that the appellant is competent to state she has neck pain. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, she is not competent to link her neck symptoms or disability, first documented years after her September 2001 injury, to her period of ACDUTRA or ADS to include warehouse injury during ADS. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Therefore, the appellant's opinion linking any currently shown neck disorder to injury in September 2001 during ADW has no probative value. Additionally, the Board finds that that the appellant's report of neck injury during ADS and the onset of symptoms at that time is less than credible as it is inconsistent with other evidence of record. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). First, to the extent that appellant reports neck injury and onset of symptoms during ADS in September 2001, this is inconsistent with the Reserves STRs contemporaneous with that time. The Line of Duty Report dated in September 2001 mentions low back pain from injury but made no mention of any injury or symptoms pertaining to the neck. The Board notes the low back cannot be reasonably construed to include the neck or cervical spine given that the anatomical locations are at opposite ends of the spine. Further, Reserves STRs reflect mention in December 2001 of the low back pain and line of duty injury, but again there is no mention of the neck and none of the Reserves STRs show abnormal pathology of the neck or documented complaints involving the neck area. Reserves examination in May 2005 similar reflect no complaints or abnormal cervical spine pathology. Second, the appellant provided no history of neck injury during her Reserve service to include ADS in September 2001 when otherwise obtaining medical care for symptoms involving her neck many years after her ACDUTRA and ADS. For instance, a July 2014 VA treatment note shows that the appellant reported neck spasms after returning from a motor trip. It defies belief that if the appellant had had neck symptoms starting with an injury in September 2001 during ADS then would not have reported that injury and length of symptoms when later obtaining medical care for neck symptoms. The Board takes notice of the absence of corroborating evidence and the appellant's strong financial incentive to misstate. An absence of corroborating evidence and personal interest may factor into the Board's credibility analysis, so long as it is not the sole base for finding the appellant not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record," but "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Caluza, 7 Vet. App. at 511 ("The credibility of a witness can be impeached by a showing of interest."); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (explaining that, although the Board "cannot ignore appellant's testimony simply because appellant is an interested party," it may take pecuniary interest into account when assessing the appellant's credibility). Here, contemporaneous medical evidence, in-service and post-service, as discussed above, go against the appellant's assertion that any chronic cervical spine condition had its onset in during ACDUTRA or ADS. The Board assigns greater probative value to the appellant's Reserves STRs, which show no neck injury, neck complaints, or abnormal pathology of the cervical spine. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). In addition, the Board assigns greater probative value to the many years intervening service and the first documented findings or complaints of neck disability. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Lastly, the Board assigns greater probative value to the October 2021 VA medical opinion. The August 2021 VA medical opinion is more probative than the appellant's uncorroborated lay assertions. This is because it was prepared by a skilled, neutral medical professional after consideration of the appellant's contentions and review of the claims file and private medical records not provided to VA. Further, it is probative because it is supported by a complete rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). On balance, the weight of the evidence is against the claim. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Edwards 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.