Citation Nr: 1311409 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 07-33 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for chronic lumbosacral strain. WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from August 10, 1967, to September 13, 1967. This matter comes to the Board of Veterans' Appeals (Board) from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In September 2009, the Veteran and his spouse testified at a videoconference hearing before an Acting Veterans Law Judge (AVLJ). A transcript of that proceeding is of record. That AVLJ has since left the Board. The Veteran was offered the opportunity to testify at another hearing with a Veterans Law Judge who will decide his appeal, but he declined. See December 14, 2012, facsimile from Veteran. Therefore, the undersigned Veterans Law Judge has been assigned to decide the appeal. This matter was last before the Board in April 2012, at which time it was remanded for further development. That development has been completed. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). FINDINGS OF FACT 1. The Veteran did not serve continuously for at least 90 days of service, but rather for 35 days. 2. The Veteran's back disability clearly and unmistakably existed prior to service and did not increase in severity during service. CONCLUSION OF LAW Chronic lumbosacral strain was not incurred or aggravated in the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letters dated in March and May 2006. Although these letters did not contain the standard necessary for establishing service connection, such notice was provided in a January 2011 letter, and the claim was readjudicated in a subsequently issued May 2011 Supplemental Statement of the Case. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). VA also has a duty to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). In that regard, VA has obtained the Veteran's service treatment and personnel records, Social Security Administration (SSA) disability records, offered assistance to the Veteran in obtaining private medical evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology of his claimed disability, and afforded the Veteran the opportunity to give testimony before the Board. It is noted by the Board that in a January 2011 remand, the Board directed that upon remand the Agency of Original Jurisdiction (AOJ) was to undertake appropriate development to obtain copies of treatment records from Dr. W. McDonald and Dr. J. Richards. In a January 2011 letter, the AOJ requested that the Veteran execute VA Forms 21-4142 (Authorization and Consent to Release Information to VA) to attempt to obtain these records as current releases were necessary to attempt to obtain these records. In the March 2012 remand, the Veteran was asked to provide a complete history of workers compensation claims and other associated law suits related to his back disability. There is no indication that the Veteran cooperated with VA's attempts to obtain these records; thus, no further development is necessary in this regard. See 38 C.F.R. § 3.159(c)(1). All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examination with related addenda obtained in this case are adequate. Overall, they are predicated on a substantial review of the record and medical findings, and they consider the Veteran's complaints, symptoms, history and contentions, particularly those regarding aggravation of a pre-existing low back disability. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a) (2012). Service connection may be granted for a disease diagnosed after service discharge when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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" - the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, service connection may also be allowed on a presumptive basis for arthritis and if the disability becomes manifest to a compensable degree within one year after the veteran's separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As the Veteran served for only 35 continuous days, these presumptive regulatory provisions are not for application. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. Regulation provides that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." 38 C.F.R. § 3.304 (b)(1). To rebut the presumption of sound condition for conditions not noted at entrance into service, 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 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-existing 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. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2008); Green v. Derwinski, 1 Vet. App. 320 (1991). 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. This includes medical facts and principles which 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 (West 2002); 38 C.F.R. § 3.306 (2012). Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Facts and Analysis The Veteran mainly claims that he had a pre-existing low back condition that was chronically aggravated by service. A review of his service treatment records notes that upon entrance, he reported a history recurrent back pain, but denied any arthritis or rheumatism. See November 1966 Report of Medical History. Examination at entrance documented normal range of motion of the back, with mild pain on extreme ranges of motion. Clinical examination of the spine was normal at this time. His "PULHES" profile at entrance was 1/4 in physical capacity and stamina, upper extremities, lower extremities, hearing and ears, eyes and psychiatric condition. 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). An August 14, 1967, service treatment record documents a history of occupational injury to the back while working for Montgomery Ward and that the Veteran had been "on and off" compensation. He then related that he had previously been in bed and unable to walk on several occasions. Another August 14, 1967, clinical service treatment record documents a complaint of a long history of "severe" back ache following a pre-service workplace injury, then bothering the Veteran in basic training. Physical examination resulted in an assessment of chronic, recurrent lumbosacral spine decompensation that existed prior to entrance to service. He was then, accordingly, found unfit for military duty. On September 8, 1967, the Veteran appeared before a Medical Board. The record associated therewith documents the Veteran's reported history of workplace injury to the back about 2 years prior and that he had been on and off compensation since that time. The Medical Board proceedings resulted in the Veteran's discharge due to Erroneous Enlistment, as he did not meet the minimal physical standards for enlistment due to his pre-existing low back disorder, which was particularly found not to have been aggravated by service. The condition was felt to be not due to the Veteran's own misconduct and probably temporary in terms of future duration. He was then actually found fit for duty. Nonetheless, he was indicated for discharge due to erroneous enlistment. See September 8, 1967, Medical Board Report Cover Sheet. The Veteran's Enlisted Performance Record states "RECOMMENDED FOR REENLISTMENT" as of September 13, 1967. A review of the obtained SSA records discloses a history of workplace injury to the low back in July 1992 and numerous subsequent complaints regarding the low back. They also noted a history of injury to the low back in April 1993, when he fell twice in the same day during an ice storm, and an impression of lumbar disc disease associated with normal aging process and chronic low back strain associated with injury of April 1993. See February 1994 record from Rosa Road Orthopedic Associates, P.C. Within the SSA records appears an April 1994 office consultation note from K.L.S., M.D. noting that the Veteran had been referred for neck and back pain. The note documents a history of workplace injury to the low back in July 1992 when the Veteran was reaching with a 20 pound device and heard a pop in his back after which time he was placed on light duty and never returned to full duty. The note also documents a history of injury to the low back following a history of 2 falls in April 1993 occurring on the same day during an ice storm. A November 1995 record from R.D., M.D. notes that the Veteran had been referred to this doctor at the request of his attorney regarding settlement of one of his compensation cases. Notably, the Veteran reported a history of low back injury on February 23, 1989. He also reported having had a physical examination for his employer on October 1, 1990, at which time the Veteran related his history of injury in February 1989 to the low back; however, the Veteran explained that the condition had not been noted "as it might have affected his employability." Also contained within the SSA records is a March 1997 clinical summary from Ellis Hospital. The summary notes that the Veteran had worked as a construction laborer for 30 years, but had not worked in 4 years due to a work-related back injury. The summary also notes that the Veteran had been unable to attain any financial benefits from the Workmen's Compensation Board since filing a claim 4 years prior and that he continued to continue a claim in this regard. Of record is a private treatment record dated in July 2005 from R.A., M.D., pertaining to a follow-up of back and neck pain. The record documents an impression of herniated discs at multiple levels and secondary degenerative changes. Subsequent records from this provider document similar impressions, but do not relate any low back condition to service, to include through aggravation. Notably, Dr. A.'s medical records were consistently carbon copied to a Workers' Compensation Board. The Veteran filed his claim for service connection of a back condition in March 2006. In a May 2006 statement, he related that he had a history of "chronicity of [his] disability commencing upon discharge up to presently." He therefore requested service connection of a back condition and requested VA's assistance in developing the claim. In June 2006, the Veteran was afforded a VA examination. The examination report noted that the claims file was reviewed and that the Veteran served approximately one month in the U.S. Navy. The examiner noted that the claims file outlined a history of low back pain for years prior to entering the Navy and that the Veteran had problems with his low back in the first month of boot camp, which resulted in his discharge. X-rays showed mild to moderate degenerative changes without definitive evidence for acute fracture or significant subluxation. At his time, the Veteran reported that he had chronic low back pain all of his life and offered a history of seeing physicians off and on over the years. He also outlined a history of Workers' Compensation injuries, times 11, following service. He offered a history of treatment following service and noted that he had been awarded SSA disability benefits for his low back condition. He had not worked since 1993. Examination resulted in an assessment of chronic lumbosacral strain. In response to the September 2006 denial of the claim, the Veteran offered a December 2006 Notice of Disagreement (NOD). In the NOD, the Veteran again alleged a chronicity of disability of the low back during his military service and continuing to present. He noted that he had been recommended for reenlistment on his Enlisted Performance Record and that he had not made any misrepresentation regarding his low back problems. He contended that his back condition had been permanently worsened by his service and noted that no physical defects, particularly of the low back, were discovered at entrance examination. He urged that if direct service connection were not granted, that the claim be granted by means of aggravation of a pre-existing condition. He noted that he was not placed on any special physical profile at entrance. In an October 2007 statement, the Veteran reiterated that he felt that his condition had been aggravated in service, particularly commencing with "the lifting of [his] duffel bag and continuing with standing, marching, etc." He felt that references to a pre-existing condition, however, were not supported by his entrance physical profile, which was 1a in six [c]ategories." He noted further that the RO's reference to having not been treated privately after discharge was inaccurate, as he was indeed treated by a Dr. McDonald for 5 years immediately following service. He urged that service connection be granted as the condition was aggravated beyond its normal progression. In September 2009, the Veteran testified before an AVLJ, as noted above. He highlighted the fact that he was able to pass his entrance physical and decided to enlist in the Navy. He testified that his back problems began in service when he attempted to lift his duffle bag and "[p]retty much right away" in basic training. He explained that he had reported a history of recurrent back pain and that "of course [he] had a back problem." He explained that he had had a previous workplace injury where he was out of work "maybe a week or two" and that he did not "even think there was any compensation involved," noting that he had found no records of such. He described the injury as a pulled muscle in his back when he worked for Montgomery Ward prior to service. He explained that upon picking up his duffle bag in basic training, he had had a recurrence of this injury. He related that his in-service pain was more extreme than that which had occurred prior thereto when he injured his back at work, which he characterized as a "little pain in [his] back." He again requested service connection through aggravation. The Veteran also addressed the service treatment records at his hearing. In particular, he referenced the September 8, 1967, Medical Board Report Cover sheet noting that there were discrepancies between one cover sheet and another regarding what boxes had been marked with an "X." He also questioned why he was discharged for an erroneous enlistment, and at the same time, found fit for duty and recommended for reenlistment. In April 2011, an addendum to the June 2006 VA examination was obtained. The addendum report documents that the examiner reviewed the claims file and that they were asked to determine whether the Veteran's low back disability, which pre-existed service, had permanently increased in severity from his time in service. The examiner noted that the Veteran had a history of low back pain prior to entrance and that he had mentioned back pain since an injury in 1965, for which he received compensation. They noted that he had been seen for complaints of back pain immediately following his entrance into service, and that he was ultimately found not fit for duty and discharged via a Medical Board. The examiner also outlined the Veteran's post-service history, referencing the history of workplace injury outlined herein above. The examiner noted that the diagnosis was chronic lumbar strain. They related that they felt that it was less likely than not that there was any permanent increase in severity in his chronic back condition from the Veteran's time in the Navy. They remarked further that there was no indication from a review of the records that his symptoms were any different from his very brief time in the Navy than they had been prior thereto. The examiner found it salient that after leaving the Navy, the Veteran was able to work for a steel company and able to work as a boiler maker, both of which were heavy labor-related jobs, with a history of numerous work-related injuries to the low back thereafter. Pursuant to the Board's March 2012 remand, another addendum was obtained, to have the examiner address specifically the June 2006 X-ray report to ensure compliance with the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998). In May 2012, an addendum was obtained, again based upon a full review of the claims file. In the May 2012 addendum, the examiner remarked that in rendering the April 2011 opinion, they were aware of the June 2006 lumbar spine X-ray and related that the diagnosis remained chronic lumbar strain superimposed on lumbar degenerative changes. They explained that despite the changes one saw on the X-ray report, the changes were considered to be normal age-related changes. They remarked further that the Veteran's symptoms of chronic low back pain existed all of his life, well prior to any X-ray changes, such as those reported in June 2006. The examiner concluded that there was no permanent increase in the Veteran's low back condition from his time in service, as they explained in the April 2011 addendum. Initially, the Board wishes to address the Veteran's concerns regarding the perceived discrepancies on the Medical Board Report Cover Sheets regarding what boxes were marked with an "X." A careful review makes it obvious that the "Xs" on the sheets that the Veteran is referencing appear on carbon copies of the original cover sheet and that the carbon copies were simply misaligned when they were rendered. Thus, the facts as reported above by the Board are those found on the original cover sheet and represent the Medical Board's conclusions. The Veteran seems to have initially contended that his currently assessed low back disability had its onset in service and did not exist prior thereto. Nevertheless, the Board does not find that the claim can be granted on this basis. Despite the Veteran's preliminary assertions to the contrary, it is clear that he did not initially incur any low back disability in service. The contemporaneous findings of the Medical Board clearly indicate that he had a low back condition that existed prior to service and that was not incurred therein. These medical findings carry much more weight than the Veteran's lay assertions, more than 45 years later. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Indeed, the Veteran seems to have abandoned this theory of entitlement shortly after the inception of his claim, and at his Board hearing, where he testified that "of course [he] had a back problem" prior to service. Although a low back disorder was not found upon entrance examination and clinical examination of the spine was normal at entrance, subsequent service treatment records clearly and unmistakably indicate that a low back condition existed prior to service. The Veteran identified a history of low back pain prior to entrance. Subsequent complaints of low back pain manifested immediately after his entrance to service, and he then outlined a history of a pre-service workplace injury. Most saliently, the Medical Board proceedings found that the condition existed prior to entry (EPTE), as has VA examination during the course of this appeal. As the evidence clearly and unmistakably establishes that the back disability preexisted service, the question becomes whether it clearly and unmistakably was aggravated by service. There must be a showing that there was an increase in severity in service, and that the increase was not due to the natural progression of the disability. Here, the evidence does not demonstrate that the Veteran's low back condition increased in severity in service, despite his contentions that it did. Indeed, although the Veteran was found to have erroneously enlisted, the likely future duration of the condition was considered to be temporary, which indicates that the condition had not been chronically worsened in service. Indeed, VA examination has competently and probatively indicated that the extent Veteran's low back symptoms prior to service did not differ from his very brief time in the Navy. That opinion was rendered on the basis of a review of all the available evidence, to include the pre-service history, the specific complaints and treatment in service, and the multiple post-service injuries to the back. The examiner provided the underlying reasons for the conclusion, and those reasons are supported by the other evidence of record. Although some opinions of record use the term, "less likely than not" as opposed to "clearly and unmistakably," the Board finds that on review of the totality of the evidence, the certainty of the medical statement is not in question. In the May 2012 addendum, the examiner stated definitively, and without reservation, that the Veteran's symptoms of chronic low back pain existed all his life, and that there was no permanent increase in his low back condition from his time in service. Along these lines, the Board acknowledges the Veteran's assertions to the contrary, but finds them to be outweighed by the examiner's statements and the credible evidence of record. Notably, in this regard, the Veteran was in fact able to be in heavy labor-related jobs for thirty years after service. He omitted his recent assertions of military service aggravation during his numerous Workers' Compensation claims and SSA disability claim over the years prior to submitting his claim to VA, relating his disability instead to various post-service injuries. The Veteran's assertions of chronicity are unavailing as they merely indicate that his pre-existing condition continued to exist, rather than increase in severity. As is true with any piece of evidence, the credibility and weight to be attached to this evidence are within the province of the Board as adjudicators. See Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Upon review of the entire record, the Board concludes that the Veteran's low back disorder clearly and unmistakably did not increase in severity in service. In sum, the evidence clearly and unmistakably demonstrates that the Veteran injured his back prior to entering service. The evidence also clearly and unmistakably demonstrates that it did not increase in severity in service. Without an increase in service, there can be no finding of aggravation. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). Accordingly, the appeal is denied. ORDER Entitlement to service connection for chronic lumbosacral strain is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs