Citation Nr: 1310685	
Decision Date: 04/01/13    Archive Date: 04/11/13

DOCKET NO.  07-29 898	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to service connection for a thoracolumbar spine disability.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Mac, Counsel



INTRODUCTION

The Veteran had active service from September 2001 to March 2005.  This claim comes before the Board of Veterans' Appeals (Board) on appeal of an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.  The RO in Phoenix, Arizona certified this claim to the Board for appellate review.

The Board remanded this claim to the RO for additional action in September 2009, December 2009, April 2011, and January 2012. 

A review of the Virtual VA paperless claims processing system includes VA treatment records from January 2011 to October 2012.  Additional documents in the Virtual VA paperless claims processing system are either duplicative of the evidence of record or are not pertinent to the present appeal.  

According to a July 2010 VA Form 21-0820 (Report of General Information), and as pointed out in the April 2011 and January 2012 REMAND, the Veteran has raised a claim for an increased evaluation for left shoulder tendonitis.  The Board continues to refer this matter to the RO for appropriate action.


FINDINGS OF FACT

1.  Clear and unmistakable evidence establishes that the Veteran had a thoracolumbar spine disability prior to entrance into active duty. 

2.  There is not clear and unmistakable evidence that the preexisting thoracolumbar spine disability was not aggravated by active duty. 

3.  A thoracolumbar spine disability, diagnosed as lumbosacral strain, thoracolumbar strain, and minimal scoliosis, is related to active duty service.


CONCLUSION OF LAW

Resolving all doubt in the Veteran's favor, the criteria for service connection for a thoracolumbar spine disability, diagnosed as lumbosacral strain, thoracolumbar strain, and minimal scoliosis, are met.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Because this claim is granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal.  See 38 U.S.C.A. §§ 5103, 5103A, 5107(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156, 3.159 (2012).

Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  In order to establish service connection, the following must be shown:  (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).  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).  

A layperson is competent to identify such disorders as varicose veins, tinnitus, and flat feet.  Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); Charles v. Principi, 16 Vet. App. 370, 374 (2002); Falzone v. Brown, 8 Vet. App. 398, 405 (1995).  A layperson is not competent to identify medical conditions that require scientific, technical, or other specialized knowledge, such as in identifying bronchial asthma.  Layno v. Brown, 6 Vet. App. 465, 469 (1994).  Lay testimony, however, is competent to establish a diagnosis where the layperson is competent to identify the medical condition, is reporting a contemporaneous medical diagnosis, or describes symptoms that support a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

In this regard, 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; 38 C.F.R. § 3.304(b).  To rebut the presumption of sound condition under 38 U.S.C.A. § 1111, 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.  38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004).  A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  See Cotant v. Principi, 17 Vet. App. 116, 132 (2003).

When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry.  The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation 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.  38 U.S.C. § 1153.  If this burden is met, then the veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection.  This means 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.

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).  It is an onerous evidentiary standard, requiring that the no-aggravation result be "undebatable."  Cotant, 17 Vet. App. at 131; Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood).

Here, the service entrance examination noted normal clinical findings for the spine, and contains no notation of any defect, infirmity or disorder of the thoracolumbar spine.  Because a spine abnormality was not noted on entrance examination, the Veteran is presumed to have been in sound condition upon entry to service.  38 U.S.C.A. § 1111.  The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that the Veteran's disability both preexisted service and was not aggravated by service.  38 C.F.R. § 3.304(b).  In a VHA opinion dated in January 2013, the examiner after reviewing the claims folder stated that there is radiographic evidence of scoliosis and anterior wedging of the lumbar spine which most likely preexisted service.  Therefore the Board finds that the evidence clearly and unmistakably establishes that the Veteran had a preexisting lower back disability.  

As stated above, rebutting the presumption of soundness is a two-part analysis.  The Veteran's thoracolumbar spine disability having been shown by clear and unmistakable evidence to pre-exist service, consideration must be given to whether clear and unmistakable evidence exists to show that the disorder was not aggravated during service.  A preexisting injury or disease will be considered to have been aggravated by active 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 or disorder.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a).  This includes medical facts and principles that may be considered to determine whether the increase is due to the natural progress of the condition.  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(a), (b).  A veteran seeking service connection by aggravation is not entitled to presumption of aggravation in service, where there was temporary worsening of symptoms, but the condition itself did not worsen.  Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991).  

"VA may not rest on the notion that the record contains insufficient evidence of aggravation.  Instead, VA must rely on affirmative evidence to prove that there was no aggravation."  Horn v. Shinseki, 25 Vet. App. 231, 236 (2012).  For example, where the only affirmative evidence regarding aggravation is a box on a Medical Evaluation Board report that contained an "x" noting that the condition was not aggravated by service, this is not affirmative, clear, and unmistakable evidence that the disorder was not aggravated by service.  Horn, 25 Vet. App. at 237-38.  

Here, there are conflicting medical opinions in the record as to whether the Veteran's lower back disability is related to service.  The conflicting nature of the evidence thus indicates that the evidence does not clearly and unmistakably establish that the preexisting thoracolumbar spine disability was aggravated by service.  Therefore the presumption of soundness is not rebutted and Veteran's claim is one for service connection.  See Wagner, 370 F.3d at 1096.

First, there is current disability as there are current thoracolumbar spine diagnoses of record.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  Second, there is evidence of an in-service event, disease, or injury as the Veteran's STRs indicate reports of thoracolumbar spine pain in January 2004, January 2005, February 2005, and March 2005.  In January 2005 the Veteran was diagnosed with lower thoracic back strain and was prescribed Flexeril.  In the discharge examination report in March 2005, the Veteran specifically complained of low back pain.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167.  The Veteran also provide competent and credible lay testimony of low back problems during service.  See 38 C.F.R. § 3.303(a); Shedden, 381 F.3d at 1167; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996).

The integral question is thus whether any current thoracolumbar spine disability is related to service.  As stated above, a review of the record shows that there are favorable and unfavorable medical opinions of record.  The credibility and weight to be attached to a medical opinion are within the Board's province as finder of fact.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  Greater weight may be placed on one opinion over another depending on factors such as reasoning employed and whether the examiner was informed of the relevant facts.  Nieves Rodriquez v. Peake, 22 Vet. App. 295 (2008).  Among the factors for assessing the probative value of a medical opinion are the thoroughness and detail of the opinion.  Prejean v. West, 13 Vet. App. 444, 448-9 (2000).  A medical opinion based on an inaccurate factual premise has no probative value.  Reonal v. Brown, 5 Vet. App. 458 (1993).

A March 2007 VA General Medical examination was conducted.  The examiner indicated that the Veteran reported that he developed back pain in service but that he did not seek care nor was it documented at the time.  The examiner diagnosed lumbosacral strain, asymptomatic.  No etiological opinion was provided. A May 2011 VA examination was conducted.  A diagnosis of thoracolumbar strain was made.  X-rays of the spine disclosed minimal dextroscoliotic curvature, slight anterior wedging of the T12 and L1 vertebrae, and minimal straightening of the normal upper lumbar lordotic curvature.  The examiner opined that the condition was not caused by or a result of service.  The rationale provided was that the STRs contained no documentation or treatment for any back problems.  It was also noted that there was only one mention of lower back pain by the Veteran's self report at separation, that on current physical examination the Veteran had full thoracolumbar range of motion without pain and a normal gait, and that he did not have a chronic problem.  The Board does not accord this opinion any significant weight as it is based upon an erroneous view of the facts; the STRs did, in fact, indicate complaints and treatment for back problems.  

A March 2012 VA examination was conducted.  Following examination, diagnoses of minimal thoracic scoliosis and slight anterior wedging, T12 and L1, were provided.  The examiner opined that a back disorder was less likely than not related to service.  The rationale provided included reference to a shoulder injury the Veteran had in service and a statement that there was no causal relationship between the two things.  The examiner also based the negative opinion on a notation in December 2009 that the Veteran stated that he did not have lower back pain and that there was no mention of lumbosacral strain in the STRs.  The examiner stated that the Veteran was given Flexeril in January 2005 for a thoracic strain, not lower back/lumbar spine.  The Board does not accord this opinion any significant weight as it is based upon an erroneous view of the facts; the STRs did indicate complaints of back pain.  Furthermore, the claim is for a thoracolumbar spine disorder. 

A VHA opinion was obtained in January 2013.  The examiner provided an opinion that the Veteran's thoracolumbar symptoms did occur as a result of active duty.  After reviewing the file, he noted that there was radiographic evidence of scoliosis and anterior wedging of the lumbar spine which most likely preexisted service, however the Veteran was asymptomatic prior to military service.  The examiner also referred to the multiple STRs indicating complaints of lower thoracic and lumbar pain secondary to a muscle strain.  The examiner concluded that it is more likely than not that the lifting and bending the Veteran did while in the military caused the stated injury to the thoracolumbar spine.  The Board accords this opinion significant probative value and weight as it was based on an accurate review of the record, to include the Veteran's STRs, and contained thorough supporting rationale.


Resolving reasonable doubt in favor of the Veteran, the Board finds that the weight of the evidence shows that a thoracolumbar spine disability, diagnosed as lumbosacral strain, thoracolumbar strain, and minimal scoliosis, is etiologically related to service.  The claim, therefore, is granted.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for a thoracolumbar spine disability, diagnosed as lumbosacral strain, thoracolumbar strain, and minimal scoliosis, is granted.  




____________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs