Citation Nr: 1237454 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 10-21 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for spondylosis at L4 to L5, claimed as back pain. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from June 1986 to August 1986, June 1987 to August 1987, and February 2003 to April 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In June 2011, the Veteran and his spouse testified during a videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran contends that he had a pre-existing low back disability that was worsened from his third period of active service, February 2003 to April 2004, while deployed to Iraq. The Veteran's February 1986 enlistment examination was within normal limits. The Veteran reported that he had scoliosis, however, the spine examination was normal. A March 1994 private medical record notes that the Veteran suffers from Facet Assemitry, a type of joint jamming. The physician stated that instead of running, he recommended that the Veteran walk due to his low back condition. In a May 1994 report of medical history, the Veteran indicated that he had recurrent back pain. A February 1995 service treatment record (STR) reflects a diagnosis of facet articular joint jamming. In a June 1996 private medical record, the Veteran was diagnosed with spondylolithesis. A July 1996 physical profile notes that the Veteran has spondylolisthesis with a P2 profile, limitations noted were no running and the profile was noted as permanent. A June 1997 private medical record notes that the Veteran had left lower back spasm from lifting and "turning" at work. An October 1997 private medical record notes that the Veteran was twisting at work and pulled his low back. In June 2002, the Veteran was put on a permanent profile. In a July 2003 pre-deployment examination, the Veteran was found deployable, even though a clinical record notes that the Veteran had complaints of low back pain and a reported history of scoliosis and spondylolisthesis. In a December 2003 post-deployment medical assessment, the Veteran reported chronic low back pain. A December 2003 report of medical examination noted decreased lumbar range of motion. A December 2003 report of medical assessment found the Veteran with complaints of increased back pain. The examination report described the Veteran's low back pain as "pre-existing." A January 2004 statement of medical examination reflects that the Veteran reported that he hit his elbow on the door of a truck and that he fell on concertina wire while in Iraq. He aggravated his low back pain as well. The examiner noted that the Veteran has a previous history of low back pain and a P2 profile. He was experiencing aggravated low back pain since deployment to Iraq with the truck company. A January 2004 x-ray of the lumbar spine was normal. It was noted that there was mild narrowing of the L5-S1 disk space but no evidence of scoliosis or spondylolisthesis. A March 2004 record noted low back pain and a physical profile noted no symptom changes or exacerbation found. A March 2004 post-deployment examination reflects that the Veteran complained of back problems due to extremely rough roads. A September 2006 retention examination is positive for spondylolisthesis and a permanent profile. In March 2007, the Veteran was found not deployable and in April 2007 was found unfit for duty, and medically retired. An April 2007 profile reflects a P4 profile was assigned for the lower extremities. VA medical records from May and July 2009 show that diagnostic testing was interpreted to show degenerative disc disease at L5-S1. During the Board hearing, the Veteran testified that before his deployment to Iraq, during his period of active service from February 2003 to April 2004, he was on a P2 profile due to his back. When he went to Iraq, he was assigned to driving the trailer for a fuel truck, which he stated had a spring suspension with solid mounted seats that "beat me up pretty bad." He further reported that he was pulled off the road and put to work in the motor pool changing tires. Because he had to lift tires, his back was aggravated. The Veteran testified that before his deployment he was having muscle spasms in his back and that after returning from deployment his low back symptoms had increased. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled into 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; 38 C.F.R. § 3.304(b); see also VAOPGCPREC 3-03 and Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The statute provides that the presumption of soundness applies when a Veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C.A. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition "attaches only where there has been an induction examination in which the later-complained-of disability was not detected" (citing Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). In the absence of such an examination, there is no basis from which to determine whether the claimant was in sound condition upon entry into that period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe, 7 Vet. App. 238. A pre-existing injury or disease will be considered to have been aggravated during service when there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The presumption of aggravation applies only when pre-service disability increases in severity during service. Beverly v. Brown, 9 Vet. App. 402, 405 (1996). 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 U.S.C.A. § 1153 ; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995); see also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat Veteran to establish an increase in disability). If an increase is shown, the presumption of aggravation may be rebutted only by clear and unmistakable evidence 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), (b). Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254 (1999) (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 (2003). Under 38 U.S.C.A. § 5103A(d)(2) (West 2002), VA must provide a medical examination and/or obtain a medical opinion when there is: (1) competent evidence that the veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is not sufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. In this case, there was no examination contemporaneous to the Veteran's entry into service in February 2003. Currently, the medical evidence is insufficient as it is unclear when the Veteran's low back disability was first manifested and if it manifested prior to his period of active service during which he was deployed to Iraq, whether it was aggravated by such service. The Veteran should be accorded a VA examination to address these questions. In addition, the claims file should also be updated to include all outstanding VA treatment records dating from October 2009 to the present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Lastly, the Veteran should provide authorization for VA to obtain any outstanding private medical records not associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain all relevant VA medical records dating from October 2009 to the present. 2. Request the Veteran to identify all sources of medical treatment received for his low back and to furnish signed authorizations for release to the VA for private medical records in connection with each non-VA source identified. Copies of the medical records from all sources identified should then be requested. If, after making reasonable efforts to obtain named records the AMC is unable to secure same, the AMC must notify the Veteran and (a) identify the specific records the AMC is unable to obtain; (b) briefly explain the efforts that the AMC made to obtain those records; (c) describe any further action to be taken by the AMC with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 3. After the above development is accomplished, schedule the Veteran for an examination of his low back by an appropriately qualified VA examiner. Request that the examiner review the claims file and note review of the claims file in the examination report. Request that the examiner provide an evaluation of the Veteran's low back and an opinion as to when the Veteran's low back disability first manifested. a. Did a low back disability pre-exist the Veteran's entry into his period of active service from February 2003 to April 2004. Please provide a complete explanation for the opinion based on the facts and medical principles. b. If so, was it at least as likely as not aggravated (i.e., permanently increased in severity) during that period of service? In that regard, the Veteran reports that the disorder was aggravated by jarring rides over rough roads and from lifting tires. Please provide a complete explanation for the opinion based on the facts and medical principles. c. If so, was the increase in disability clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. Please provide a complete explanation for the opinion based on the facts and medical principles. d. If the Veteran did not have a pre-existing disability, the examiner should opine as to whether it is at least as likely as not that the Veteran's current low back disability began in or is related to service, to include whether a low back disability was shown with a year after discharge from any period of active service and, if so, what was the severity thereof? In offering these opinions, the examiner should consider the competent lay evidence of the Veteran as to the onset and continuity of back symptoms since service. A complete rationale for all opinions proffered must be included in the report provided. 4. Ensure that the development above has been completed in accordance with the remand instructions, undertake any other development action that is deemed warranted, and readjudicate the Veteran's claims. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC). An appropriate period of time should be allowed for response before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). _________________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).