Citation Nr: 0000404 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-18 365 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for neck and/or back disability. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The appellant served on active duty from February 1991 to May 1991. She has also had various periods of active duty for training and inactive duty training between August 1983 and August 1995; she has also reported additional reserve service ending in June 1996. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 1997 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA) which denied service connection for residuals of neck and back strain. A notice of disagreement was received in August 1998; a statement of the case was issued on September 11, 1998; and a substantive appeal, on a VA Form 9, was received on November 5, 1998. FINDING OF FACT The preponderance of the evidence does not show that chronic neck and/or back disability is related to a disease or injury incurred or aggravated during any period of active duty for training or that chronic neck and/or back disability is related to an injury incurred or aggravated during any period of inactive duty training. CONCLUSION OF LAW The criteria for entitlement to service connection for neck and/or back disability have not been met. 38 U.S.C.A. §§ 101 (24), 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999); Laruan v. West, 11 Vet. App. 80 (1998); Paulson v. Brown, 7 Vet.App. 466 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION 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.A. §§ 1110, 1131; 38 C.F.R. § 3.303. The term "active military, naval, or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board notes at the outset that the appellant did serve on active duty from February 1991 to May 1991. However, she has not advanced any contentions regarding disability incurred or aggravated by this period of active duty. Moreover, she has not reported receiving any medical treatment for the disorders in question during this period. In this regard, she has reported that she did not seek out medical treatment until 1995. The appellant's underlying contention is that she suffers from back and/or neck disability related to injuries suffered in September 1990 (a bus accident), in January 1995 (a automobile accident), and in August 1995 (a fall off a truck). She claims that she was on duty status with the reserves at the time of all three incidents. The record documents a September 1990 bus accident while the appellant was enroute to active training. A service record associated with this accident shows that she was seen for muscle spasm and soreness in the neck and back; the examiner indicated that temporary disability might result. The record includes no subsequent medical records until 1995. Service records dated on various occasions in 1995 show treatment for cervical-thoracic pain and include references to a motor vehicle accident in January 1995 and an epidural in connection with childbirth. Private medical records dated in 1995 also document pertinent back complaints. A July 1995 private medical record refers to back complaints since childbirth in September 1994. Other service records dated in July 1995 show that the appellant was placed on profile from lifting heavy objects. A service record dated August 24, 1995, documents treatment for increased pain in the spinal area while performing field exercises. This document also notes a history of a motor vehicle accident in January 1995 and an epidural associated with childbirth. It was also noted that the appellant reportedly had been lifting duffel bag and other activities inconsistent with her profile. Service medical records dated in August 1995 show no specific tenderness to palpation, good range of motion, and no obvious abnormalities. She was to rest in quarters and was expected to return to duty the next day with a continued profile for light duty. There are no subsequent service or private medical records in the claims file. In order to establish basic eligibility for veteran's benefits based upon her active duty for training, the appellant first has to establish by a preponderance of the evidence that she was disabled from a disease or injury incurred or aggravated in the line of duty. In order to establish basic eligibility for veteran's benefits based upon her inactive duty training, the appellant first has to establish by a preponderance of the evidence that she was disabled from an injury incurred or aggravated in the line of duty. See Laruan v. West, 11 Vet. App. 80, 84-86 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995). After reviewing the evidence of record, the Board is unable to conclude that the appellant has met this burden of proof as required by law. Service records do document at least two of the claimed injuries. However, there is no evidence to support a finding of chronic disability resulting from any of the injuries. The available medical records (while admittedly sparse) do not persuasively show a chronic disability as a result of any of the injuries. With regard to the 1990 bus accident, not only did the examiner indicate at that time that only temporary disability was expected, the lack of any medical evidence of a continuity of pertinent symptoms for the next several years suggests that the 1990 injuries were acute in nature and did not result in chronic back and/or neck disability. As for the reported January 1995 automobile accident, assuming for the sake of argument that it occurred while the appellant was effectively on some type of duty status, there is no contemporaneous evidence showing a resulting disability at that time. Moreover, several subsequent medical records refer to a history of the accident, but there is no medical evidence showing any resulting chronic disability of the neck and/or back. Likewise, the documented August 1995 injury reportedly due to field exercises has not been shown by the preponderance of the evidence to have resulted in chronic neck and/or back disability. As noted earlier, the fact than an injury occurred is not enough, there must be resulting chronic disability. The Board also notes here that the record also suggests that some back complaints have been attributed to childbirth. As for the possibility that some neck and/or back disorder preexisted a period of military service and was aggravated by such service, the available service records would suggest that the pertinent complaints noted during the periods of service were essentially flare-ups. In this regard, "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The Board acknowledges the statements by the appellant and some family members. However, while the appellant and family members are competent to state that the appellant experienced symptomatology, they are not competent, absent specialized medical training, to render opinions concerning the etiology of disability that the appellant claims to have sustained because of her active duty for training or inactive duty training service. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Significantly, the record does not include any medical opinion suggesting that the appellant suffers from chronic neck and/or back disability which is related to any of the claimed injuries or that there was an increase in severity of any preexisting neck and/or back disability. Based on the foregoing, the Board finds that the appellant has not shown by a preponderance of the evidence that she suffers from neck and/or back disability which is related to a disease or injury incurred in or aggravated during a period of active duty for training or to an injury incurred in or aggravated during a period of inactive duty training. In other words, she has not established under law that she is a proper claimant for the VA benefits she is claiming, and the duty to assist and the doctrine of the benefit of the doubt are therefore not for application. See Laruan, 11 Vet. App. 85; Paulson at 470-71. The Board notes here that the RO has made numerous efforts to locate and obtain any additional service medical records which may be available. The Board further observes that except for private medical records dated in July 1995, the appellant has not submitted any medical evidence in support of her claim. The burden of submitting evidence to support her claim rests with the appellant's as VA's statutory duty to assist her with her claim does not arise until she has attained status as a veteran for purposes of her claim. Laruan. In closing, the Board emphasizes to the appellant that it is her burden to show by a preponderance of the evidence that she suffers from current chronic disability related to one or more of the claimed injuries during a period of service. She may always seek to advance this claim again in the future should she obtain supporting evidence. ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals