Citation Nr: 1120155 Decision Date: 05/24/11 Archive Date: 06/06/11 DOCKET NO. 06-13 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back disorder, to include on the basis of aggravation. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from May 1968 to December 1969. The current appeal comes before the VA Board of Veterans Appeals (Board) from an August 2004 rating decision of the VA Regional Office (RO) in Detroit, Michigan that declined to reopen the claim of service connection for a back disorder, claimed as degenerative disc disease with scoliosis of the lumbosacral spine. In March 2009, the Board reopened the Veteran's claim and remanded the issue for additional development. The case has been returned to the Board and is ready for further review. The Board is satisfied that there was substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). FINDING OF FACT A preexisting back disorder was noted at service entrance and there is no clear and unmistakable evidence that the preexisting back disorder was not aggravated during service. CONCLUSION OF LAW A low back disorder is a result of aggravation of a preexisting disability. 38 U.S.C.A. § 1110 (West. 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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) (2010). In this case, the Board is granting in full the benefit 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 need not be further considered. Service Connection Service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. 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). Service connection may also be granted for some disorders when manifested to a compensable degree within one year following discharge from active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, 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). 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). A Veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence 1) that the disability existed prior to service and 2) was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. To satisfy the second requirement for rebutting the presumption of soundness, the government must show, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or that (2) any increase in disability was "due to the natural progression" of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). The clear and unmistakable evidentiary standard applies to the burden to rebut the presumption, but this standard does not require the absence of conflicting evidence. Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004). If the presumption of soundness is not rebutted, the claim becomes one for service connection, meaning that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran asserts entitlement to service connection for a low back disorder. Having considered the evidence, the Board finds service connection for aggravation of a preexisting low back disorder is warranted. A determination in this case requires competent evidence. The Veteran is competent to report his symptoms. As a layman, however, his opinion alone is not sufficient upon which to base a determination as to a relationship between service and current disability. Rather, the Board must weigh and assess the competence and credibility of all of the evidence of record. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board notes that Veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Veteran is only entitled to a presumption of soundness where disability is not noted on induction examination. The Veteran had pre-induction evaluations between 1966 and 1967 where it was noted that a disqualifying defect consisting of neck and back problems was discovered on physical inspection. In a letter dated in January 1967, the appellant's private physician, E. J. Prisbee, M.D., wrote that the he had episodes of pain and muscle spasm in his neck and back region and recurrent headaches as a result of an automobile accident in January 1966. It was reported that recent examination revealed that all ranges of motion of the cervical and lumbar spine were limited approximately minus 15 degrees and produced pain and muscle spasm. Pertinent diagnoses of severe cranial-cervical syndrome with muscle spasm, limitation of motion, and lumbar sprain were rendered. The physician opined that although the Veteran's condition had improved somewhat, he still experienced pain and muscle spasm and was not adaptable for military service at that time. Military personnel determined, however, that the appellant was fit and qualified for service. Additional private clinical records dated in December 1967 were received from Wayne County General Hospital relating that the Veteran had been brought into the emergency room after being attacked, receiving multiple blows to the head, back and legs with a hammer. Diagnoses of frontal sinus fracture and soft tissue contusions of the back and right leg were rendered for which he was hospitalized for one week. M.S. Wedgle, D.O., wrote in May 1968 that the Veteran had been under doctor's care since December 1967 for lumbosacral sprain and strain/whiplash due to an automobile accident in November 1967. It was reported that he was injured again in December 1967 sustaining a fracture of the skull over the frontal sinus, and that he was involved in another automobile accident in March 1968, suffering a fractured nose. The Veteran formally entered service in May 1968. On examination in December 1969 for discharge from active duty, the appellant indicated that he had had a back injury from a car accident two years before. The physician's summary noted that this existed prior to service. On physical evaluation, the spine and musculoskeletal system were evaluated as normal. The Veteran was afforded a VA examination in August 1970. He stated that he had low back pain that became "tight" at times, and varied between the left and right side. Examination of the back disclosed mild lumbar spasticity with no specific points of tenderness. An X-ray of the lumbar spine was interpreted as showing spina bifida of S1 with a slight tilt of the lumbar spine to the left. Normal lordotic curvature as well as normal disc spaces were noted. There was no fracture or dislocation. An assessment of lumbar strain with congenital anomaly was rendered in this regard. VA outpatient clinic records dating from a neurology progress note in 2002 showing treatment for a history of back pain since the appellant's "teenage years" with reported significant worsening over the past 10 years. Magnetic Resonance Imaging revealed diffuse degenerative changes, predominantly at the L5-S1 level. It was reported that the disc there appeared to be somewhat desiccated and degenerated, but without evidence of significant disc degeneration. The Veteran continued to seek treatment for low back symptoms. A VA spine examination was conducted in June 2004 whereupon the examiner diagnosed a history of continued low back pain even prior to joining the military. It was noted that there was some limitation of motion without any neurological deficiency in the lower limbs. X-rays revealed degenerative disc changes in the lumbar spine with minor scoliosis. A September 2005 letter was received from the Veteran's treating VA nurse practitioner stating that she had reviewed his service treatment records and noted that he was involved in an accident two weeks prior to his induction examination. She also stated that "I have also noted the numerous times he went to sick call for his back pain and returned to duty." The Veteran's treating provider further stated that "I feel there certainly is a fair possibility that his military duty could have aggravated his back condition." The Veteran was examined by VA in August 2009. The claims file was reviewed. The examiner diagnosed chronic lumbar strain. The examiner determined that the Veteran did clearly and unmistakably had a pre-existing low back disorder at the time of service entrance in 1968. He reported that as to whether it is at least as likely as not that the Veteran's pre-existing back disorder clearly and unmistakably permanently increased in severity beyond the natural progression, he could not resolve without resorting to speculation and relying on the Veteran's statements. He stated that it is at least as likely as not that increased disability was superimposed upon the pre-existing back condition due to the rigors of physical training and boot camp which caused him to be treated for back pain approximately eleven times. He said he could not say the degree of superimposition without resorting to speculation. The examiner reported that while the Veteran had many complaints of back pain in service the documentation in and of itself does not prove that his back pain was clearly and unmistakably permanently increased during service beyond the natural progression. First, the Board finds that a low back disorder preexisted service entrance as it was noted on the pre-entrance examination and the Veteran is not presumed sound. A pre-existing injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. 38 C.F.R. 3.306(b); 38 U.S.C.A. § 1153. The presumption of aggravation applies only when pre- service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. The August 2009 VA examiner's opinion does not show that that there was clear and unmistakable evidence that the Veteran's preexisting, low back disorder, noted at service entrance, was not aggravated by service. In fact, the examiner stated that, he could not determine this without resorting to speculation. He also conceded that there was increased superimposed disability secondary to the rigors of service. In summary, the Board finds that a low back disorder preexisted service entrance, and that there is no clear and unmistakable evidence that the preexisting low back disorder was not aggravated during service. Thus, service connection for a low back disorder due to aggravation of back disorder is warranted. ORDER Service connection for a low back disorder based on in-service aggravation s granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs