Citation Nr: 0916280 Decision Date: 04/30/09 Archive Date: 05/07/09 DOCKET NO. 04-17 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a low back disability. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran had active service from November 1966 through November 1970, and June 1982 through October 1997, with subsequent National Guard Service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The claim was reopend by the Board in Decwember 2006, and at that time, the issue was characterized as entitilement to service connection for spondylosis of the lumbar spine. The issue has been recharacterized to accurately reflect the veteran's claim. FINDINGS OF FACT 1. The competent evidence clearly and unmistakably shows that the Veteran's low back disability pre-existed his first period of active service. 2. The competent evidence does not clearly and unmistakably show that the Veteran's low back disability was not aggravated by such service. CONCLUSION OF LAW The criteria for service connection for a low back disability, diagnosed as degenerative disc disease of the lumbar spine and spondylosis, have been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 1154, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.306 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008). In this case, the Board is granting the full the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to service connection for a pre-existing back disability Applicable law provides that service connection will be granted if it is shown that a Veteran suffers from a disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered, or disease contracted, in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment. 38 U.S.C.A. § 1111. The term "noted" denotes only such conditions that are recorded in examination reports. The existence of conditions prior to service reported by the Veteran as medical history does not constitute a notation of such conditions, but it will be considered together with all of the other evidence in question as to the commencement of the disease or disability. 38 C.F.R. § 3.304(b)(1). Determinations of whether a condition existed pre-service should be based on a thorough analysis of the evidentiary showing and careful correlation of all medical facts, with due regard to manifestations, clinical course and character of the particular injury or disease or residuals thereof. Id. An injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. The burden to show no aggravation of a pre-existing disease or disorder during service lies with the government. Cotant v. Principi, 17 Vet. App. 117, 131 (2003). VA must show by clear and unmistakable evidence that the pre-existing disease or disorder was not aggravated during service and the claimant is not required to show that the disease or injury increased in severity during service. See VAOPGCPREC. 3- 03 (July 16, 2003) (69 Fed. Reg. 29178 (2004). However, the presumption of aggravation is rebutted where there is a specific finding that the increase is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. In deciding an aggravation claim, after having determined the presence of a preexisting disability, the Board must determine whether there has been any measurable worsening of the disability during service and whether this worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary or intermittent flare-ups of the preexisting condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis In this case, the Veteran is seeking to establish service connection for a low back disability. He contends that his back problems preexisted service and that they were aggravated and/or permanently worsened by his first period of active duty, from November 1966 to November 1970. He specifically points to a January 1968 incident in which he was thrown off an armored personnel carrier and injured his back. He also asserts that rigors of basic training exacerbated his back problems. The first question for consideration in evaluating a service connection claim is whether the competent evidence demonstrates a current disability. Indeed, an X-ray taken pursuant to a March 2008 VA examination confirms degenerative disc disease of the lumbar spine; further, service treatment records from the Veteran's second period of active service confirm multiple diagnoses of lumbar spondylosis. Thus, based on the foregoing, a current disability is demonstrated with respect to the Veteran's back. Next, the Board must determine whether the Veteran was in sound condition upon entry to service in November 1966. In assessing this question, the Veteran's service treatment records have been reviewed. The Veteran's enlistment examination in October 1966 revealed a normal spine evaluation; however, the examining physician expressly noted a pre-existing back injury on a report of medical history of the same date. The service treatment records from 1966 and 1967 are otherwise replete with references to treatment for a preexisting back disability, variously diagnosed in service records as lumbar spondylosis, lordosis, chronic/recurrent low back pain, and lumbar strain. For instance, a February 1967 treatment record noted "recurrent low back pain since injury, existing prior to service." Similarly, a May 1967 treatment record noted "chronic low back pain since injury in 1965." Further, a June 1967 service treatment record diagnosing low back muscle strain also referenced a pre- existing basketball injury that occurred in 1965. A spondylosis diagnoses was subsequently rendered. Based on the above, the Board finds that the low back disability was noted upon entry, and thus, the presumption of soundness does not apply. Accordingly, the appropriate question with respect to the Veteran's claim is whether the low back disability was aggravated, rather than incurred, during either period of active service. Again, an injury or disease that has been determined to be preexisting will then be presumed to have been aggravated by service where there is an increase in the severity of the disability during service. All the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service, are to be considered in determining whether an increase has occurred. See 38 C.F.R. § 3.304(b)(1). Here, the Board finds that the service treatment records from the Veteran's first and second periods of service, along with the Veteran's own testimony regarding worsening back symptomatology, demonstrate that the low back disability was aggravated by service. As noted, the Veteran reported that he had injured his back prior to service while playing basketball. Upon entry to service in 1966, the examining physician noted that, historically, the Veteran's back injury caused aching "on occasion." Following entry, the service treatment records document that the Veteran sought treatment for low back pain on no fewer than 18 different occasions between December 1966 and June 1968. The Board finds that the frequency of complaints and treatment for low back pain during this period is highly probative of aggravation. In this regard, the Board also points to a February 1967 treatment record which reflects a diagnosis of recurrent low back pain. This treatment record notes that the Veteran strained his back prior to prior to service; that he recently fell down; and that the fall specifically resulted in aggravation to his back injury. As this record expressly addresses aggravation, the Board finds that it, too, is highly probative of an increase in severity of the back disability. Although in-service aggravation of a pre-existing disability has been established, the evidence must also demonstrate that the back disability underwent a permanent worsening in severity (as opposed to temporary flare-ups). In this regard, service treatment records from the Veteran's second period of active service (June 1982 through October 1997) also demonstrate continued treatment for spondylosis and recurrent low back pain. For instance, in July 1990, the Veteran was treated for chronic low back pain; range of motion of the lumbar spine was shown to be moderately limited at that time. The treatment record notes that the Veteran had a long history of low back problems, citing nearly 20 years of back symptomatology. An August 1990 service treatment record again reflects complaints of low back pain, with a long clinical history beginning in 1965. A similar treatment record from the same date reflects diagnoses of early degenerative joint disease and spondylosis of the lumbar spine; objectively, the physician described guarded movements and trunk range of motion that had been decreased by half. Subjectively, the Veteran stated that sit-ups and prolonged walking increased his back pain, but that he had to perform such exercises in order to pass his yearly military physical examination. In October 1990, the Veteran was placed on physical profile for "mechanical low back pain and spondylosis." Physical activity was limited to "modified" sit-ups at that time due to his associated back pain with exercise. A November 1992 General Counseling Form shows that the Veteran's military occupational specialty (MOS) was required to be reclassified because he did not meet the physical requirements of his then current MOS. Notably, the Veteran remained on physical profile for his mechanical low back pain and spondylosis until his separation from service in 1997. The Board finds that the foregoing constitutes sufficient evidence that the Veteran's preexisting back disability increased in severity from its mild, or "occasional," status found upon his entry into service in 1966. In so finding, the Board also acknowledges the Veteran's subjective complaints, as described at his hearing before the undersigned in January 2006. In this regard, he is competent to provide testimony as to observable symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Moreover, his reports of back pain are entirely consistent with the evidence of record and are found to be credible. The Board acknowledges the opinion of a March 2008 VA examiner, in which it was stated that it would be "totally speculative" to comment upon whether the Veteran's current back problem was either caused or aggravated by service. A February 2009 addendum to the VA examination reached the same conclusion, namely, that the question of aggravation could not be resolved without resorting to mere speculation. No rationale was provided for these statements. Nevertheless, after a careful review of the record and resolving all benefit of the doubt in favor of the Veteran, the Board finds that the Veteran's preexisting low back injury was permanently aggravated by his periods of active service. The presumption of aggravation simply cannot be overcome in this case as there is no clear and unmistakable evidence to the contrary. While a VA examination report of March 2008 does contain a statement that a finding of aggravation could not be made without resorting to speculation, the Board finds this opinion to be neither probative nor disprobative of aggravation. Indeed, such an unsupported, neutral statement cannot be found to amount to clear and unmistakable evidence that the Veteran's low back disability underwent no aggravation in service. Rather, the Board finds that the Veteran's service treated records, which document nearly 30 years of low back symptomatology and treatment, along with Veteran's own credible testimony, are highly probative of in-service aggravation of a preexisting back disability. Therefore, after considering all the evidence of record, the Board finds that the evidence is at least in relative equipoise. The benefit of the doubt doctrine will therefore be applied. See 38 U.S.C.A. § 5107; Gilbert, supra. Service connection for a low back disability will therefore be granted. ORDER Service connection for a low back disability is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs