Citation Nr: 0812208 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-18 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD James A. DeFrank, Associate Counsel INTRODUCTION The veteran had active service from March 1966 to January 1968. He also served in the United States Naval Reserve from March 1964 to June 1965 and from July 1968 to July 1970. He had active duty for training from April 1965 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2003 rating decision of the Cleveland, Ohio, regional office (RO) of the Department of Veterans Affairs (VA) which confirmed and continued a previous denial of entitlement to service connection for a low back condition. In a July 2006 decision, the Board remanded this issue for additional development. FINDINGS OF FACT 1. A low back disability was not noted on the veteran's enlistment examinations for entry into service. 2. There is clear and unmistakable evidence that the low back disability existed prior to service. 3. There is not clear and unmistakable evidence that the low back disability was not aggravated in service. 4. The current low back disability is related to a low back disability identified in service. CONCLUSION OF LAW The criteria for entitlement to service connection for a low back condition on the basis of aggravation are met. 38 U.S.C.A. §§ 101(24), 1110, 1111, 1137, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(b) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA is not applicable where further assistance would not aid the appellant in substantiating her claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5- 2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the appellant in substantiating his claims. Applicable laws and regulations in service connection claims Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship 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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A preexisting injury or disease is considered aggravated by military service where there is an increase in disability during service, absent a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation may be rebutted only by clear and unmistakable evidence. 38 C.F.R. § 3.306(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background In July 1964 the veteran underwent an examination for entrance into the Naval Reserves. No back disability was noted. In August 1965, Dr. John Brink stated that the veteran 'reported a history of back disabilities since 1959 or 1960. This was "insidious" and without any trauma that could be recalled. The veteran reported that in the spring of 1965 while on reserve duty he reinjured his back during push-ups. He stated that he did not report to sick call for treatment or evaluation at the time but had constant back pain since. The diagnosis was a chronic low back strain. X-rays reportedly showed disc space narrowing, sacralization of L5, and spina bifida. The March 1966 entrance examination for active duty referred to a March 1966 consultation where the veteran presented with complaints of low back pain. The consultation yielded findings that the back was essentially normal. The consultation found the veteran to be fit for active duty. X- rays were unremarkable. The report of examination for entrance into active service shows that the spine was found to be normal and no back disability was reported. In November 1966 the veteran again presented with complaints of a back ache. In December 1967 the veteran had a pilonidal cyst removed. The veteran's January 1968 separation examination for his release to inactive duty was negative regarding any complaints or diagnoses of a back condition. In January 1986, the veteran presented to Dr. Stephen Asher for complaints of a tremor. The veteran stated that this began after a recent motor vehicle accident where he was struck from behind. A February 1986 CT scan of the lumbar spine revealed mild osteoarthritis and degeneration of the L5-S1 disc. In November 2001 the veteran underwent thoracic spine series X-rays at the Walla Walla, Washington VA Medical Center (VAMC). The diagnosis was minimal scoliosis and degenerative change. In a March 2003 statement, T. Douglas Flaiz, M.D. opined that it "certainly seems likely that [the veteran's] service activities contributed to his current arthritic lower back." In March 2007 the veteran underwent a VA examination. The examiner found that the veteran was born with congenital scoliosis. He did not have any problem until military service when he started having low back pain. The diagnosis was degenerative arthritis of the lumbosacral spine. The examiner stated that the veteran's service aggravated his scoliosis and made it to become symptomatic. He concluded that the veteran's back disability had its onset during military service and was aggravated during active duty and training. He had a congenital defect. In October 2007, the veteran underwent a VA examination to clarify whether his back condition was a result of an injury sustained in military service. The veteran reported that he was born with congenital scoliosis which did not give him any trouble until his military service where he did a lot of push-ups and lifting. His problems began around 1965 or 1966. The diagnosis was degenerative arthritis of the lumbar spine. The examiner concluded that the veteran's back disability had the onset during military service and was aggravated during active duty and training. Therefore his back condition was as likely as not related to the injury he sustained during military service. Analysis The veteran had normal back evaluations at his July 1964 and March 1966 enlistment examinations at entry into service. The presumption of soundness would not apply to the veteran's period of active duty for training. See Paulson v. Brown, 7 Vet App 466 (1995) (holding presumption of soundness did not apply to period of active duty for training, because the appellant had not previously established status as a veteran by showing a disease or injury during that service); Mercado- Martinez v. West, 11 Vet App 415, 419 (1998) (although appellant had established veteran status through an earlier period of active duty, he had not established such status for a period of active duty for training). To establish status as a veteran based on the period of active duty for training, the veteran would need to have previously established service connection for a disease or injury incurred during that period of service. 38 U.S.C.A. § 101(24); Paulson. The veteran has not done so. The veteran reported a history of back symptoms dating prior to his period of active duty for training, and a physician has opined that the veteran had a pre-existing scoliosis. Although, the veteran has more recently reported no pre- service symptoms, the weight of the evidence is to the effect that there was pre-existing disability from scoliosis. That does not, however, end the Board's inquiry. While there was pre-existing scoliosis, service connection would be possible for superimposed disabilities incurred in active duty for training or on active duty. Such service connection would be warranted either on the basis of aggravation or on the basis that the superimposed disability was incurred in service. See 38 C.F.R. §§ 3.303, 3.304, 3.306 (2007). The veteran reported soon after his period of active duty for training that he had incurred a superimposed injury from performing a push up, and the August 1965 consultation reports back disability in addition to the pre-existing scoliosis. There is no evidence that the veteran received treatment for a back disability prior to his period of active duty for training. The VA examinations also show superimposed back disability, namely degenerative arthritis. The VA examinations in March 2007 and October 2007 provide the only opinions as to the relationship between the veteran's current low back disability and service. Those opinions support a link between the current disability and service. Accordingly, service connection for a low back disability, currently diagnosed as degenerative arthritis, is granted. ORDER Entitlement to service connection for a lower back disability is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs