Citation Nr: 22047489 Decision Date: 08/22/22 Archive Date: 08/22/22 DOCKET NO. 15-07 390 DATE: August 22, 2022 ORDER Entitlement to service connection for a cervical spine disability is denied. FINDING OF FACT The Veteran's cervical spine disability clearly and unmistakably preexisted and was not aggravated by his period of ACDUTRA service. CONCLUSION OF LAW The criteria for service connection for residuals of cervical spine surgery have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1977 to June 1981; on active duty for training from March 1987 to June 1988, and on active duty from August 1990 to July 1991. He also had service in the Air Force Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in May 2018. A transcript is of record. This matter was remanded in July 2018 and October 2021. The Board also remanded the claim for service connection for bilateral plantar fasciitis. In a June 2022 rating decision, the RO granted service connection for bilateral plantar fasciitis. The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for bilateral plantar fasciitis. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to service connection for residuals of cervical spine surgery is denied. The Veteran asserts that he incurred and/or aggravated a neck disorder during his Reserve service. At the May 2018 Board hearing, the Veteran testified that the original injury to his neck occurred in a motor vehicle accident in 2003 while he was deployed to Baghdad. He did not report sustaining any specific injuries or treatment for the cervical spine at that time. However, the Veteran also testified that during his Reserve service in 2007, he aggravated his neck problems and received treatment during that time. Generally, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Active military service includes: (1) active duty; (2) 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; and (3) any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). Service connection is available for injuries and diseases incurred during active duty or ACDUTRA, but except for the exceptions listed, only for injuries, and not diseases, sustained on INACDUTRA. Brooks v. Brown, 5 Vet. App. 484 (1994). If a claim relates to period of active duty for training, a disease or injury resulting in disability must have manifested itself during that period. Paulson v. Brown, 7 Vet. App. 466 (1995). 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 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. These drills are deemed to be part-time training. The regulations concerning presumptive service connection, the presumption of soundness, and the presumption of aggravation are inapplicable to claims based upon ACDUTRA service. See Smith v. Shinseki, 24 Vet. App. 40 (2010); but see Hill v. McDonald, 28 Vet. App. 243, 250 (2016) ("once a claimant has achieved veteran status for a single disability incurred or aggravated during a period of ACDUTRA, veteran status applies to all disabilities claimed to have been incurred or aggravated during that period of ACDUTRA"). However, if Veteran status is established and a claimant submits documentation that, together with the rest of the record, evidences both the baseline severity of the preexisting condition prior to the period of ACDUTRA and a permanent increase in disability during a period of ACDUTRA, the claimant may take advantage of the presumption of aggravation. An information report obtained from VADIR (Veterans Affairs and Department of Defense Identity Repository) shows that the Veteran had a deployment period between December 1, 2003, and December 31, 2003; the Veteran was receiving hostile fire/imminent danger pay during this period. In addition, the information report noted reserve active service from October 14, 2003, to October 28, 2003; and from May 14, 2007, to September 30, 2007. See also ANG/USAFR point credit summary (noting "AD" days during the fiscal year ending in October 2003, October 2004, October 2007, and October 2008, among others). Thus, it appears that the Veteran had periods of ACDUTRA service relevant to his claims. Service treatment record from the Veteran's periods of active service were silent for any complaints, diagnosis, or treatment for any neck disabilities. At the March 1981 separation examination, there was no abnormality of the head, face, neck, and scalp, or the spine, other musculoskeletal. In the March 1981 report of medical history, the Veteran checked "no" to having had swollen or painful joints; arthritis, rheumatism, or bursitis; bone, joint or other deformity; and recurrent back pain. After his periods of active service and after the claimed initial injury in 2003, the Veteran was examined for his Reserve service. In June 2004, the Veteran was noted to be worldwide qualified without significant history in medical records review. See also February 2003 (noting no significant deficits). Records from September 2007 reflect that the Veteran complained of neck pain and a history of cervical spine degenerative disc disease. The Veteran complained of a pinch nerve in September 2007. The private treatment records noted a prior MRI in 1998 with a diagnosis of degenerative joints in the neck. An October 2007 private MRI showed C5-6 disc osteophyte complex, with C6 radiculopathy. An informal line of duty determination dated in August 2008 shows the Veteran was on 'active duty status' between May 9, 2007, and December 4, 2007. The Veteran reported shoulder pain on active tour for one month with a September 2007 MRI showing disc bulges at multiple levels. The determination noted that this condition pre-existed service. The determination included a recommendation that C-5 and C-6 degenerative disc disease was "EPTS-Service Aggravated." Pursuant to the Board's Remand, the Veteran was afforded a VA cervical spine examination in September 2020. The examiner noted a diagnosis of degenerative arthritis of the spine, with a date of diagnosis in March 2015, and residuals of anterior discectomy and fusion at C5/C6, with a date of diagnosis in 2007. The Veteran reported that the disability had onset in 2006, but indicated that his neck pain started when he was in a motor vehicle accident in 2003. He further indicated that his pain went away and came back, with severe pain in 2007. The examiner opined that the claimed neck condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that there were normal findings from 1976 and 1981. The examiner noted that the Veteran was seen for neck pain starting after 2007, which is many years after he was discharged from the Air Force. VA obtained an addendum opinion in March 2022. The examiner noted review of the records. The examiner opined that the claimed condition clearly and unmistakably existed prior to service. The examiner noted a diagnosis in 1998 and 2002, after active duty in 1991 and prior to periods of ACDUTRA. Although the examiner noted a deployment in 2003, there was no evidence of a traumatic injury that would have predisposed the Veteran to this disability. Rather, the Veteran's degenerative spine disease is naturally occurring due to normal wear and tear over a lifetime. In support of this opinion, the examiner noted that there is a substantial percentage of men over 40 years old who have degenerative spine disease, and the prevalence increases significantly with each decade. The Board notes that the Veteran was born in 1959. See DD 214. At the time of the initial 1998 diagnosis, the Veteran would have been 39 years old. Having reviewed the clinical history, the examiner noted that the Veteran's clinical picture is consistent with this age related degenerative spine disease, and the diagnosis was age-appropriate at the time. Ultimately, the examiner concluded that the Veteran had a cervical spine disability which was naturally occurring and clearly existed prior to periods of ACDUTRA. Further, the examiner considered whether the Veteran's disability was clearly and unmistakably aggravated beyond its natural progression during service. The examiner opined that it was not. Rather, the examiner explained that the common, natural progression of the Veteran's pre-existing degenerative disease includes intervention, surgery, laminectomy, or fusion. There was no evidence of aggravation in the claims file. The examiner considered the line of duty determination, complaints of shoulder pain, and a diagnosis of radiculopathy. The examiner further evaluated the 2007 incident and determined that this did not represent an aggravation of the Veteran's cervical spine disability. Rather, the Veteran's reported symptoms and nerve root distribution indicate that this was a separate shoulder injury. Moreover, the examiner indicated that an injury or aggravation of the Veteran's cervical spine disability would have been self-evident and manifested in treatment records. However, there is nothing to suggest that the Veteran's condition was aggravated beyond its natural course by service in 2007. In sum, there was no aggravation beyond the natural progression of the disability in 2007 or beyond. The Board finds the opinion of the March 2022 examiner to be probative and highly persuasive. The examiner has the appropriate training, expertise, and knowledge to evaluate the claimed disability. The examiner provided a thorough and cogent rationale in support of the opinions offered. The rationale included consideration of the Veteran's reported symptoms, the clinical history, and the known pathology and progression of the Veteran's cervical spine disability. The examination reports and opinions provided the Board with a clear description of all relevant data points necessary to evaluate this claim. The persuasive March 2022 opinion establishes that the Veteran's cervical spine disability clearly and unmistakably pre-existed or was aggravated by any of the Veteran's period of ACDUTRA or INACDUTRA service. This is consistent with the contemporaneous medical records, where the earliest noted diagnosis was in 1998. Moreover, the opinion persuasively weighs against any aggravation of the Veteran cervical spine disability by his period of ACDUTRA service. The examiner's explanation indicated that the Veteran's clinical history is consistent with the natural and expected progression of the disability. The examiner considered whether the 2007 incident documented in the August 2008 line of duty determination was an aggravation of the Veteran's cervical spine disability. The examiner indicated that this was not the case, because this incident represented a separate shoulder injury. The examiner noted that the nerve root distribution and reported symptoms weighs against an etiology of shoulder symptoms to the cervical spine disability. The examiner noted there was no other evidence of aggravation during service. The March 2022 opinion competent and persuasive evidence against the claim. The Board has considered the Veteran's lay statements indicating that the disability had onset during one period of ACDUTRA and was aggravated during a subsequent period of ACDUTRA. However, his statements are not competent or credible on the etiology of the current disability. Although the Veteran reported an onset in 2003, during a period of ACDUTRA service, the Veteran's statements are inconsistent with the medical records establishing an earlier diagnosis (in 1998). Furthermore, the Veteran is not competent to relate symptoms of neck pain to the currently diagnosed cervical spine disabilities. Of note, the issue is medically complex, as it requires knowledge of an entirely internal disease progression, as well as interpretation of diagnostic medical testing and imaging. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran does not have the requisite training or experience to opine on such matters. As such, the Board finds the March 20222 VA opinion more probative. In sum, the persuasive weight of the evidence is against the claim for service connection and the benefit of the doubt rule does not apply. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). Entitlement to service connection is denied. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Vuong, 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.