Citation Nr: 18123989
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 99-17 593
DATE:	August 3, 2018
ORDER
Service connection for a cardiovascular disorder (claimed as chest pain and heart trouble) is dismissed as moot.
Service connection for a cervical spine disorder is granted. 
Service connection for a lumbar spine disorder is granted. 
REMANDED
Entitlement to service connection for a bilateral shoulder disorder, to include as secondary to the service-connected cervical spine disability, is remanded. 
FINDINGS OF FACT
1. In a February 2012 rating decision, prior to the promulgation of a decision by the Board, the AOJ granted service connection for hyperthyroidism with cardiac palpitations and ischemic changes representing a full grant of the benefits sought on appeal pertaining to the Veteran’s cardiovascular disorder (claimed as chest pain and heart trouble).
2.  The Veteran’s currently diagnosed cervical and lumbar spine disorders first manifested during a confirmed period of ACDUTRA.
CONCLUSIONS OF LAW
1.  As there remains no case or controversy affecting the provision of benefits by VA over which the Board may exercise jurisdiction, entitlement to service connection for a cardiovascular disorder (claimed as chest pain and heart trouble) is dismissed.  38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 19.4, 19.5, 20.101 (2017).
2.  The criteria for service connection for a cervical spine disorder are met.                  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).
3.  The criteria for service connection for a lumbar spine disorder are met.                  38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran enrolled in the United States Army Reserve Officer Training Corps (ROTC) in August 1980 and attended Advanced Training Camp in June 1981.  She had a period of active duty from September 1983 to March 1984, with additional periods of active duty for training (ACDUTRA), to include one from June 3, 1989 to June 17, 1989. 
These matters come before the Board of Veterans’ Appeals (Board) from a November 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. 


Dismissed as Moot a Claim for Cardiovascular Disorder 
In May 1997, the Veteran filed a claim for service connection for “chest pain” and “heart troubles.”
As discussed in the December 2010 Board remand, an October 2009 VA examination report contained an opinion by the VA examiner that the Veteran’s heart palpitations and chest pain were the result of hyperthyroidism, which was “present during service, but not yet discovered.”  Thus, the Board found that action on the service connection claim for a cardiovascular disorder was deferred until the raised claim of entitlement to service connection for hyperthyroidism had been adjudicated.
Subsequently, in a February 2012 rating decision, Veteran was granted service connection for “hyperthyroidism with cardiac palpitations, ischemic changes.”  As such, the Veteran’s claim has been granted in full.  Notably, the evidence of record does not demonstrate any other diagnosed heart disorder, and the Veteran has not otherwise indicated that she has a separate and distinct heart disorder.  See also February 2015 VA heart examination report and February 2017 VA medical opinion (showing no heart abnormality or diagnosed heart condition).  As the February 2012 rating decision represents a full grant of the benefits sought, the issue is no longer in appellate status as there is no case or controversy presently before the Board, and the issue is dismissed.  See 38 U.S.C. § 7105.
Service Connection Laws and Regulations
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service.  38 U.S.C.                     §§ 1110, 1131; 38 C.F.R. § 3.303 (a).  Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303 (d).  Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b).  Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013).
Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  
The U.S. Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  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).
Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310 (a).  When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.  See 38 C.F.R.           § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993).  The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995). 
As noted above, a disability will be service-connected if it was incurred or aggravated in the line of duty in the active military, naval, or air service.  38 U.S.C. §§ 101 (16), 1110, 1131 (2012); 38 C.F.R. §§ 3.1 (k), 3.303 (2017).  Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty.  38 U.S.C. § 101 (21) and (24) (2012); 38 C.F.R. § 3.6 (a) (2017).  ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any state.  38 U.S.C. § 101 (21), (22) (2012); 38 C.F.R.   § 3.6 (c)(1) (2017).  Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty.  38 U.S.C. § 101 (24) (2012); 38 C.F.R. § 3.6 (a) (2017).  INACDUTRA means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state.  38 U.S.C.    § 101 (23) (2012); 38 C.F.R. § 3.6 (d) (2017).
Furthermore, ACDUTRA includes duty performed by a member of a Senior ROTC program when ordered to such duty for the purpose of training or a practice cruise under chapter 103 of title 10 for a period of not less than four weeks and which must be completed by the member before the member is commissioned.  38 U.S.C. § 101 (22)(D) (2012).  Other ROTC training can also be considered as INACDUTRA if verified by relevant pay records.  Training other than ACDUTRA performed by a member, or an applicant for membership in the Senior ROTC, when ordered to such duty under 10 U.S.C. Chapter 103, shall be considered INACDUTRA.  See 38 C.F.R. § 3.6 (d)(3) (2017).  However, according to           38 C.F.R. § 3.6 (d)(4)(ii), INACDUTRA does not include attendance at an educational institution in an inactive status.
In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57(1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”).
Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data.  See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382(1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data).  The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record.  Miller v. West, 11 Vet. App. 345, 348 (1998).
A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment, including by a veteran.  See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner’s opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis).
When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
Lumbar and Cervical Spine Disabilities
The Veteran contends that her cervical and lumbar spine disorders first manifested after an in-service injury during active duty service.  Service treatment records confirm that on June 27, 1981, while serving as an ROTC cadet, the Veteran hit the side of her head during a 40-foot drop.
As discussed in the most recent January 2017 remand, the Board found that the Veteran’s reported June 1981 injury occurred during a period of qualified military service.  The claims file includes an August 1980 contract denoting the Veteran’s enrollment in a Senior ROTC Program Advanced Course, which was conceded by the Board in a prior March 2007 remand.  Said program occurred during the summer months and took place not at the Veteran’s academic institution, but instead at Fort Bragg.  Additional records indicate that the Veteran was authorized to travel to said training at the government’s expense, and received financial compensation for her subsequent participation.  As such, the Board finds that the alleged June 1981 injury occurred during a period of ACDUTRA, such that service connection may be established on a direct basis.
Next, the Board finds that the Veteran has been diagnosed with degenerative arthritis and degenerative disc disease of the lumbar spine and with cervical muscle spasms and cervical spine spondylosis. 
Turing to the relevant evidence of record, service treatment records show that, in June 1981 during ROTC programming that qualifies as ACDUTRA, the Veteran sustained a head injury after falling from approximately 40 feet and rupturing her left tympanic membrane.  
In an April 1987 service treatment record, the Veteran was seen for back pain on the left side of the spine.  The Veteran reported that her entire back was painful from her neck to the left, mid-back.  The Veteran was diagnosed with a lumbosacral strain and upper back strain.  A few days later, the Veteran again was seen for continuing back pain and indicated that Flexeril had provided her no relief.  The Veteran was prescribed physical therapy, which showed some improvement in her symptoms.   
In a July 1988 Physical Profile, the Veteran was noted to have acute sacroiliitis and was restricted from performing physical exercises.
In an August 1989 Statement of Medical Examination and Duty Status, it was indicated that the Veteran had an injury on June 13, 1989 (during a period of ACDUTRA).  The nature of the injury was noted as a lower cervical facet irritation and dysfunction.  On June 13, 1989 (during a period of ACDUTRA service), the Veteran was seen for complaints of neck pain for 1 week.  The next day, she was seen again and reported right lower neck pain that was sharp.  It was also noted that the Veteran had a history of “neck spasms.”  The assessment was noted as lower cervical facet irritation/dysfunction and locking.  A diagnosis of left internal obliques strain was noted.  
Service records also include a December 1991 assessment by Dr. Aguilera, conducted prior to the Veteran’s last period of ACDUTRA service.  At that time, it was noted that the Veteran complained of back pain for “several years.”  The Veteran indicated that she had fallen a few months ago, resulting in worsening symptoms of low back pain.  Cervical and thoracic pain was present as well and the Veteran reported having paresthesias in the back, feet, and hands.  Range of motion testing of the neck caused discomfort and pain.  Dr. Aguilera indicated that muscle spasms were present in the back.  After performing an EMG, Dr. Aguilera diagnosed the Veteran with polyradiculopathy.  
In a periodic report of Medical History, completed by the Veteran in March 1991, she indicated that she was prescribed Flexeril for “back pain.”  It was further noted that she had received treatment for her back pain from 1988-1991, which includes a period of ACDUTRA.  
In a July 1991 medical record from Dr. Lopez, the Veteran was seen for neck pain and was diagnosed with muscle spasms.  In August 1991, Dr. Lopez treated the Veteran for back pain and muscle spasms.  Dr. Lopez diagnosed the Veteran with chronic cervical myositis, exacerbated, and lumbar sacral sprain.  
In May 1997, approximately three years following service separation from her last period of ACDUTRA service, the Veteran filed a claim for lower back and neck pain.
Post-service medical evidence includes a July 1996 statement from Dr. Diaz.  At that time, the Veteran was noted to have a history of fibromyalgia, osteoarthritis in her hips and sacroiliac joints, and trochanteric bursitis.  Dr. Diaz indicated that the Veteran had moderate to severe limitation of motion in her trunk and of the lumbar spine.  It was further noted that the Veteran had been under Dr. Diaz’s care since 1993.
The Veteran was afforded a VA spine examination in September 1997.  During the evaluation, the Veteran reported that in 1981 (during ROTC), she fell from a 40-foot height in a river with trauma to the head and with rupture of the tympanic membrane.  She indicated that she subsequently experienced cervical pain with radiation to the shoulders and limitation of motion.  The Veteran also reported low back pain with radiation to the buttock and left.  Upon examination, there was evidence of severe cervical dorsal, lumbar paravertebral, and bilateral trapezius muscle spasms.  There was decreased range of motion of the lumbar and cervical spine with pain.  Diagnoses of cervical and lumbar polyradiculopathy were noted as confirmed by EMG by Dr. Dr. Aguilera.  The examiner also noted a diagnosis of bulging discs at C5-C6 with degenerative joint disease were noted as confirmed by MRI in September 1992.    
During a September 2009 VA spine examination report, the Veteran reported that she developed low back and cervical spine pain secondary to a fall during a training exercise while at ROTC program.  The Veteran indicated that physical therapy and medication provided fair relief of symptoms.  The examiner reviewed the evidence of record and diagnosed the Veteran with degenerative disc disease (DDD) and degenerative joint disease (DJD) of the of the lumbar spine.  The examiner also diagnosed the Veteran with cervical muscle spasm and cervical spine spondylosis.  The examiner then opined that the Veteran’s spine disorders were not related to service.  In support of this opinion, the examiner stated that the Veteran’s disorders were a result of the normal aging process.  The Board find this opinion to lack probative value.  In this regard the examiner’s rationale did not adequately address why the Veteran’s spine disorders were more likely related to age than to her in-service injury.  As such, this opinion is afforded no probative weight.  
The Veteran was afforded other VA spine examinations in April 2014 and February 2015.  Regarding the lumbar spine, diagnoses of DJD and DDD were confirmed.  Cervical spine diagnoses included degenerative arthritis and cervical spine spondylosis.  During the evaluation, the Veteran reported that her back pain started after her in-service fall.  She complained of continuing severe low back pain.  The April 2014 and February 2015 VA examiners opined that they agreed with the October 2009 VA examiner in that all of the Veteran’s conditions did not correlate with active duty service.  These conditions were noted to have been diagnosed several years after service and were due to the normal progression of aging.  The Board finds these opinions lack probative value.  In this regard, the examiners did not adequately address the Veteran’s lay statements regarding pain following her 40-foot fall during service.  The examiners also did not discuss the in-service ACDUTRA complaints of neck and back pain.  
Given the inadequacies of previous VA medical opinions, the Board remanded the claims again in January 2017 for additional medial opinions.  In February 2017 and May 2017 VA medical opinions, the examiner opined that the current lumbar spine disorder was unrelated to active military service.  The current lumbar spine disorder was noted to date to 2007, years after service.  In May 2016, the Veteran underwent an EMG, which showed no radiculopathy; as such, the examiner opined that the Veteran’s degenerative changes were due to the natural aging process.  Regarding the cervical spine, the examiner also opined that it was unrelated to service.  In support of this opinion, the examiner stated that service records were absent for treatment and that the condition dated to 2006.  
The Board finds that the February 2017 and May 2017 VA medical opinions lack probative value.  The Veteran has reported that her onset of pain began after the in-service fall.  Further, contrary to the examiner’s findings, service treatment records do show treatment for a spine disorder.  Specifically, on June 13, 1989 (during a period of ACDUTRA service), the Veteran was seen for complaints of neck pain for 1 week.  The next day, she was seen again and reported right lower neck pain that was sharp.  It was also noted that the Veteran had a history of “neck spasms.”  The assessment was noted as lower cervical facet irritation/dysfunction and locking.  A diagnosis of left internal obliques strain was noted.  Further, service records include a December 1991 assessment by Dr. Aguilera, conducted prior to the Veteran’s last period of ACDUTRA service.  At that time, it was noted that the Veteran complained of back pain for “several years,” which the Board finds would include some periods of ACDUTRA service.  For these reasons, the Board affords little probative value to the February 2017 and May 2017 VA medical opinions. 
Based on a careful review of all of the subjective and clinical evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for cervical and lumbar spine disabilities is warranted.  In this regard, service treatment records show that the Veteran was first diagnosed with lower cervical facet irritation/dysfunction and locking during a period of ACDUTRA.  Further, service records include a December 1991 assessment by Dr. Aguilera, conducted prior to the Veteran’s last period of ACDUTRA service, showing that the Veteran complained of back pain for “several years,” which the Board reasonably finds would include her previous periods of ACDUTRA service.  The Veteran has also consistently reported ongoing neck and back pain since service and continues to seek treatment for such disorders, including muscle spasms which were first diagnosed in service.  Despite various negative VA medical opinions, the Board has found these opinions to lack probative value.  The Veteran is also competent to report her onset of symptoms and the Board finds her statement credible—especially given the documented 40-foot fall in service.
For these reasons, the Board find that evidence is at least in equipoise that the Veteran’s currently diagnosed cervical and lumbar spine disabilities had their onset during active duty service.  Accordingly, the Veteran is afforded the benefit of the doubt; therefore, service connection is granted.  See 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


								(Continued on the Next Page)

REASONS FOR REMAND
Bilateral Shoulder Disability
The Veteran maintains that her bilateral shoulder disorder first manifested in service.  The Board finds, however, that a remand is warranted as there is evidence that the Veteran’s shoulder symptoms may be related to her now service-connected cervical spine disability (granted herein).
In this regard, the Veteran was afforded a VA spine examination in September 1997.  During the evaluation, the Veteran reported that in 1981 (during ROTC), she fell from a 40-foot height in a river with trauma to the head and with rupture of the tympanic membrane.  She indicated that she subevent experienced cervical pain with radiation to the shoulders and limitation of motion.  
During a September 2009 VA joints examination report, the Veteran reported that her bilateral shoulder pain began in service and that she developed bilateral pain “surrounding muscles between neck and shoulders.”  
For these reasons, the Board finds that a VA shoulder examination is required to assist in determining whether the Veteran’s shoulder disorder is secondary to her now service-connected cervical spine disability. 
The matters are REMANDED for the following actions:
1. Schedule the Veteran for a VA shoulder examination. The electronic claims file must be made available to the individual designated to provide the opinion. 
The examiner is then asked to address the following:
(a.) List all diagnoses pertaining to the Veteran’s shoulders.
(b.) State whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral shoulder disorder is either caused or aggravated by his service-connected cervical spine disability (including muscle spasms).  
(c.) A complete rationale should be provided for the opinions given.  If the requested medical opinions cannot be given, the examiner should state the reason(s) why. 
2.  Thereafter, the remanded issue on appeal should be readjudicated.  If the benefit sought on appeal is not granted, the Veteran and her representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto.

 
S. B. MAYS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Casadei, Counsel 

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