Citation Nr: 1007404 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 06-32 415 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a spine disorder. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The appellant and his father ATTORNEY FOR THE BOARD Jessica J. Wills, Counsel INTRODUCTION The Veteran served on active duty from January 2000 to January 2003 and had subsequent service with the Army National Guard. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied the benefits sought on appeal. The Veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. A hearing was held on September 2, 2009, in Waco, Texas, before Kathleen K. Gallagher, a Veterans Law Judge (VLJ), who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) and who is rendering the determination in this case. A transcript of the hearing testimony is in the claims file. The Board observes that additional evidence has been received, which was not previously considered by the RO. However, the Veteran submitted a waiver of the RO's initial consideration of the evidence in September 2009. Therefore, the Board will consider this newly obtained evidence and proceed with a decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. The Veteran has been shown to have a spine disorder that first manifested during his period of active duty service, and he continued to have a chronic disorder thereafter. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, a spine disorder was incurred in active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1). In the decision below, the Board has granted the Veteran's claim for service connection for a spine disorder, and therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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). Service connection may also 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). 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, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable." Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is 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). For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (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). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). However, the advantage of certain evidentiary presumptions, provided by law, that assist veterans in establishing service connection for a disability do not extend to those who claim service connection based on a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA). Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service- connected disabilities from that period); McManaway, 13 Vet. App. at 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim." (emphasis in McManaway)); see also Biggins v. Derwinski, 1 Vet. App. 474, 479 (1991) (Steinberg, J., concurring). Thus, the evidentiary burden is on the claimant to show that he or she became disabled from an injury or disease incurred in line of duty during ACDUTRA or from an injury incurred in line of duty during INACDUTRA. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for a spine disorder. The presumption of soundness applies with respect to the Veteran's period of active duty service because his physical examination at the time of his enlistment did not find him to have any spine abnormalities. The Veteran testified at his September 2009 hearing before the Board that he first developed back pain towards the end of his period of active duty service and that the pain was subsequently aggravated during his service in the Army National Guard. In particular, he contended that his duties as a light infantry scout contributed to his back problems, which included carrying packs between 45 and 120 pounds and hiking up and down hills between 5 and 20 miles. The Board does acknowledge that the Veteran is competent to report his experience and symptoms in service. While lay persons are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In addition, the Veteran's service treatment records from his period of active duty service do indicate that he reported having a medical history of recurrent back pain or a back problem in August 2002. A clinical evaluation found his spine to be normal, and it was noted that he was never treated for his back problems. However, the Veteran indicated at that time that he never sought treatment because the pain would eventually subside, especially since he stopped "rucking and running so much." As such, there is contemporaneous evidence documenting that the Veteran had back pain during his active duty service. Thus, there is no reason to doubt the credibility of his lay statements regarding the onset of his disorder. The Veteran's father also testified that the Veteran had talked to him while he was serving on active duty in Germany and had told him about his back problems. In particular, he indicated that the Veteran had complained of bad back pain after field exercises and carrying heavy packs. In December 2002, private medical records further indicated that the Veteran had mild scoliosis of the lumbar spine. Following the Veteran's active duty service, he appears to have continued experiencing back problems. In this regard, private medical records dated in June 2004 indicate that the Veteran sought treatment for low back pain at which time it was noted that he had developed intermittent low back pain from December 2002 to January 2003. He then began chiropractic treatment. Private medical records dated in July 2004 also documented the Veteran's complaints of low back pain that he had had for approximately five months. He was assessed at that time as having mild lumbar scoliosis and L5-S1 isthmic spondylolisthesis. The Veteran was seen again in August 2004 at which time he presented with lower back pain, and a radiographic evaluation did reveal spinal abnormalities. During the Veteran's service in the Army National Guard, he was placed on a physical profile for lower back pain in May 2004. His temporary profile was listed as "L2." See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the "PULHES" profile reflects the overall physical and psychiatric condition of the veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). In January 2005, the Veteran also complained of back pain from an injury in December 2002 while on active duty. It was noted that he continued to have a lot pain. He was given another temporary physical profile of "L2" for chronic low back pain in June 2006, and an individual sick slip dated that same month documented such symptomatology. The Veteran completed an annual medical certificate in April 2007 in which he reported having a spinal injury in May 2004. He indicated that he did not know how he originally sustained the injury, but stated that the injury was aggravated in May 2004. He noted that he had constant pain requiring him to take Ibuprofen daily. The physician's review notes indicated that that the Veteran had described having cervical scoliosis and chronic neck pain for three years as well as spondylolisthesis of the lumbar spine. He was determined to be unfit for service. The Veteran was later given a temporary physical profile of "L3" for lumbago and congenital spondylolisthesis in August 2007. He also completed an annual medical certificate that same month in which he reported having a spinal injury. A medical board examination in August 2007 further indicated that the Veteran was being evaluated for low back pain. It was noted that he had had a spinal injury with recurring, low to moderate pain. In summary, the presumption of soundness applies in this case because the Veteran was found to have a normal spine during his November 1999 enlistment examination, and his back disorder first manifested during his period of service, as documented by service treatment records and lay testimony. The Veteran continued to seek treatment for his back during the first year following his separation from service, and his diagnoses included scoliosis and spondylolisthesis. He was also seen numerous times for back pain during his service in the Army National Guard, and he was assessed as having various disorders, including scoliosis, lumbago, and spondylolisthesis. In fact, he was even found unfit. Following his service in the Army National Guard, the Veteran has continued to complain of similar symptomatology. The Board notes that the Veteran is competent to give evidence about what he experienced; i.e., that he has had back pain since his separation from service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). Based on the foregoing, the Board concludes that the Veteran has been shown to have a chronic spine disorder that first manifested during his period of active duty service. The Board notes that there is no medical evidence showing otherwise. The Board further observes that the United States Court of Appeals for Veterans Claims (Court) has cautioned against seeking an additional medical opinion where favorable evidence in the record is unrefuted. The Court specifically indicated that it would not be permissible to undertake further development if the purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003), To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. Accordingly, the Board concludes that service connection for a spine disorder is warranted. ORDER Subject to the provisions governing the award of monetary benefits, service connection for a spine disorder is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs