Citation Nr: 1301448 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 05-35 694A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a chronic back disorder. ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1967 to December 1968. He received, among other things, a Combat Infantry Badge (CIB) for his combat service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2007, the Board remanded the case for further development, and in May 2009, the Board denied the claim of entitlement to service connection for a chronic back disorder. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), and in a February 2010 Order, the Court vacated the Board's decision and remanded the matter to the Board for development consistent with the parties' February 2010 Joint Motion for Remand (JMR). Pursuant to the February 2010 JMR, the Board remanded the Veteran's claim in April 2010 for further development. In February 2012, the Board again remanded the Veteran's claim to obtain numerous service treatment records not associated with the Veteran's claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Despite the lengthy procedural history of this case, the Board once again finds it necessary to remand this claim. As indicated in the Court ordered February 2010 JMR, the claim was remanded back to the Board to obtain missing federal records and to afford the Veteran a new VA examination if warranted by the new evidence. In this case, a new VA examination is necessary. The Veteran claims he entered service with pre-existing back pain that worsened due to his military service, to include necessitating hospitalization in Japan. While the actual hospitalization records could not be obtained, there are military records referencing his admittance in Japan related to low back pain, with radiation into the legs. His service treatment records overall indicated ongoing low back complaints and treatment. Every veteran, however, 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 (West 2002). This presumption attaches only where there has been an induction examination in which the later-complained-of disability was not noted. The term "noted" denotes only such conditions as are recorded in examination reports. History provided by the veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304(b)(1) (2012) (emphasis added); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). In this case, although service treatment records note ongoing back pain since 1959, and the Veteran himself reported a slipped disc in 1959 requiring one month of treatment, the Veteran's actual enlistment examination was normal. That is, the Veteran was examined pre-induction in May 1965 and September 1966. At both times, despite the Veteran's self-reported history, no back-related diagnosis was rendered on examination. The Board further notes that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a "disability." See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). For these reasons, despite the Veteran's reported history of low back pain and 1959 slipped disc, the presumption of soundness attaches. When no pre-existing condition is noted upon entry into service, a veteran is presumed to have been in sound condition upon entry and the burden falls on the government to rebut the presumption of soundness. Wagner v. Prinicipi, 370 F.3d 1089 (Fed. Cir. 2004). Rebutting the presumption of soundness requires the VA show by clear and convincing evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. Id. Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258 (1999) (citing definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). After service, treatment is minimal until after a lifting injury in 2003, decades after service. Thereafter, the Veteran's low back problems continued, to include significant surgeries. His current diagnosis is congenital stenosis, multi-level, status-post laminectomies, fusions, and cage/screw stabilizations. The examinations of record, to include January 2009 and February 2011 already presume the Veteran entered service with a pre-existing low back disability and limited their opinion merely to aggravation. These examinations are inadequate to rebut the presumption of soundness and, therefore, a new VA examination is warranted. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an orthopedic spine surgeon specialist to determine the current nature and likely etiology of the claimed back disability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner's attention is specifically directed to the Veteran's service treatment records, to include the May 1965 pre-induction examination, the September 1966 pre-induction examination and Report of Medical History, the subsequent 1967 and 1968 treatment records documenting the Veteran's low back complaints, treatment, and hospitalization, and the other service treatment reports pertaining to his low back. The examiner should conduct a thorough examination and provide a diagnosis for any pathology found. Based on examination findings and a review of the record, the examiner must answer the following questions: Does the Veteran have a current diagnosis of a low back disability, and, if so: (a) Does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran had a low back diagnosed disability (that is, other than "pain") that existed prior to his entry onto active duty? (b) If the answer to (a) is yes, does the evidence clearly and unmistakably show (i.e., it is undebatable) that the pre-existing condition was not aggravated by service (e.g., due to his combat service in Japan) or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (c) If the answer to either (a) or (b) is no, is it at least as likely as not that the Veteran's low back disability had its onset in service? In answering the questions, the examiner is specifically asked to address the Veteran's service treatment records (to include the September 1966 examination with normal results, but with self-reported 1959 slipped disc), and post-service records noting a 2003 lifting injury. The examiner is requested to provide a complete rationale for any opinion expressed, based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 2. Then, readjudicate the Veteran's issue remaining on appeal. If the claim remains denied, provide the Veteran and his representative a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The 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 2002). _________________________________________________ SHEREEN M. MARCUS Acting 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) (2012).