Citation Nr: 1318540 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-43 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from June 29, 1979 to February 9, 1980, with subsequent periods of active duty for training (ADT) and inactive duty training (IDT). This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Nashville, Tennessee. The Veteran presented testimony at a Board hearing, chaired by the undersigned Veterans Law Judge, seated at the RO in Nashville, Tennessee, in November 2010. A transcript of the hearing is of record. This matter was previously before the Board in March 2011, at which time service connection for a claimed back disorder was denied. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in December 2011, the Court granted a Joint Motion of the Parties for Remand (JMR), which vacated the Board's December 2011 decision and remanded this issue to the Board for development consistent with the JMR. In April 2012, the Board remanded this matter for further development of the evidence. While certain portions of the remand were complied with, not all of the directives were completed. As a result, the Board again remanded this matter for further development in October 2012. As will be discussed in the duty to assist and notify section below, the required actions have been complied with and the matter is now ready for appellate review. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). FINDINGS OF FACT 1. Preexisting scoliosis, mild to moderate, was noted on entry examination. 2. Scoliosis did not permanently increase in severity during service. 3. The Veteran's current back disorder, diagnosed as lumbago, degenerative disc disease, and lumbar strain, is not related to active service. CONCLUSION OF LAW The criteria for service connection for a back disorder have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.306(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board observes that in an October 2008 letter the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claim. The letter also told him what evidence he was responsible for obtaining and what evidence VA would undertake to obtain. The letter further told him to submit relevant evidence in his possession. The October 2008 letter also provided the Veteran with notice as to the disability rating and effective date elements of the claim. VA has a duty to assist a Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All pertinent treatment records, service, VA, and private, have been obtained and associated with the claims folder insofar as possible. In this regard, the Board notes pursuant to the JMR and the April 2012 remand, the RO obtained records from the Social Security Administration (SSA) and sought a release from the Veteran in order to obtain medical records from Creighton University. Records from SSA have been associated with the file. The Veteran did not return a signed release form, and the RO/AMC could not make efforts to secure Creighton University records. The Board notes that it is the Veteran's responsibility to cooperate fully in obtaining relevant records not in the custody of the Federal government including signing a release if necessary. 38 C.F.R. § 3.159(c)(1)(i), (ii). Due to the Veteran's failure to cooperate fully in assisting VA to obtain private medical evidence, the Board concludes that VA has fulfilled its duty to assist regarding obtaining records from Creighton University to the extent possible under the circumstances. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). As to the necessity for a VA examination, the Board notes that, pursuant to the JMR, the Board remanded this matter for an additional VA examination in April 2102. The Board requested that the Veteran be scheduled for a VA examination to examine the Veteran and to offer an aggravation opinion on the question of whether the Veteran's pre-existing back disorder was worsened beyond its normal progress during service. The VA examiner was directed to consider that, upon examination for entry into service in June 1979, the Veteran's spine was found to be clinically abnormal, due to scoliosis, assessed as mild to moderate. It was further noted that while on active duty, the Veteran was treated for acute low back strain with muscle spasm. The Board also noted that an October 1979 lumbosacral spine x-ray study revealed a tilt to the right thought possibly to be due to a muscle spasm. Otherwise, the x-ray study was within normal limits, the alignment was normal, there was no fracture, and the disc spaces were normal. The VA examiner was requested to offer an opinion as to whether it was at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's pre-existing scoliosis, assessed as mild to moderate, was worsened beyond its normal progress during the Veteran's period of active duty service from June 29, 1979 to February 9, 1980. The October 1979 x-ray report and its significance, if any, was to be specifically addressed. In its October 2012 remand, the Board observed that in May 2012 the Veteran was afforded the requested examination; however, the claims file was not available to the examiner for review. The Board observed that May 2012 X-ray study of the low back accomplished in connection with the examination indicated that bone detail was suboptimal and that the right oblique view was also suboptimally positioned so that the radiologist could not evaluate the facets. The radiologist's impression was of "Inadequate examination. Suggest repeat." However, the X-ray study was not repeated. The Board further noted that, despite not having reviewed the pertinent evidence contained in the claims file and a suboptimal X-ray study, the examiner rendered an opinion in this case. Specifically, the examiner opined that the Veteran's pre-existing scoliosis had not worsened beyond its normal progress. The Board indicated that, without reviewing the record, the May 2012 examiner could not, and indeed did not, comment upon the October 1979 x-ray report and its significance. The Board noted that, because the May 2012 examiner had not reviewed the claims file, an addendum was sought. The examiner was asked to review the claims file and write an addendum indicating that the claims file had been reviewed. The Board noted that, apparently, the May 2012 examiner was an orthopedics resident, and was no longer available when clarification was sought in July 2012. As such, a different VA employee, whose medical credentials were not specified, stated in July 2012 that he reviewed the claims file and the Veteran's medical chart and agreed with the opinion rendered in May 2012. The Board found the May 2012 examination was not adequate, as the examiner did not review the record in rendering his opinion regarding aggravation and did not request that an additional X-ray study be conducted after the one he had ordered was found defective by the radiologist, who suggested repetition of the study. The Board further noted that the examiner did not address the October 1979 X-ray report and its significance, as was expressly requested in the April 2012 remand. The Board further observed that the July 2012 addendum did not correct the May 2012 deficiencies because the X-ray study was not repeated, the October 1979 X-ray study report was not addressed, and because the examiner simply stated that he agreed with the May 2012 examiner without offering a rationale. The Board also noted as well that the professional credentials of the July 2012 examiner were not apparent from the report. The Board indicated that, because the May 2012 VA examination report and July 2012 addendum report were not adequate for the reasons detailed above, VA did not fulfill the April 2012 remand directive, and compliance with the remand was lacking; therefore, the Board was required to remand this matter to the RO for corrective action. Stegall, supra. The Board indicated that an additional VA examination was required. The Board requested that the Veteran be scheduled for a VA orthopedic (joints) examination of the spine in order to offer an opinion on the question of whether the Veteran's pre-existing scoliosis was worsened beyond its normal progress during service. The VA examiner was directed to consider that, upon examination for entry into service in June 1979, the Veteran's spine was found to be clinically abnormal, due to scoliosis, assessed as mild to moderate and that while on active duty, he was treated for acute low back strain with muscle spasm. It was further noted that an October 1979 lumbosacral spine x-ray study revealed a tilt to the right thought possibly to be due to a muscle spasm; otherwise, the x-ray study was within normal limits, the alignment was normal, there was no fracture, and the disc spaces were normal. The VA examiner was requested to offer the following opinions: A. Was it at least as likely as not (i.e., to at least a 50-50 degree of probability) that the Veteran's pre-existing scoliosis, assessed as mild to moderate, was permanently worsened during the period of active duty service from June 29, 1979 to February 9, 1980? In answering this question, the examiner was to specifically address the October 1979 x-ray report and its significance, if any. Also, if it was the examiner's opinion that the scoliosis worsened during service, he/she was to indicate what evidence or findings he/she relied upon that demonstrated a permanent worsening during service when compared to the baseline degree of severity of the scoliosis at service entrance. B. If it was the examiner's opinion that the pre-existing scoliosis worsened during service, did the worsening of scoliosis in service represent either: (i) the normal progression of scoliosis during service (from June 1979 to February 1980), or (ii) an increase in severity of scoliosis beyond the normal progression of the disease during service (from June 1979 to February 1980)? In conjunction with the Board remand, an opinion was obtained from a VA examiner following a review of the claims folder in November 2012. Thereafter, the Veteran was afforded a VA examination in February 2013 by the examiner who rendered the November 2012 opinion. Following an additional VA examination, which included an additional x-ray, the examiner again rendered an opinion as to the etiology of the Veteran's current back disorder and its relationship to his period of service. The opinions provide by the examiner comply with the directives of the Board remand and provide sufficient detail to properly address the Veteran's claim. Thus, the examination was sufficient for VA rating purposes. see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in November 2010 in support of his claim. At the time of the hearing, the Veterans Law Judge set forth the issue on appeal. Furthermore, information was obtained regarding the symptoms related to the Veteran's claimed disorder. Therefore, not only was the issue "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claims" were also fully explained. Moreover, following the hearing, the Veteran was afforded the opportunity to submit additional evidence. The Board finds that the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claim, including by submission of statements and arguments presented by his representative. As noted above, he also appeared at a Travel Board hearing before the undersigned Veterans Law Judge in November 2010. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating this claim. Service Connection for a Back Disorder The Veteran contends that he injure his back during service while wrestling in the barracks when someone picked him up and slammed him to the floor; that he went to the hospital the next morning; that x-rays were taken and he received physical therapy; that he went into the Reserves but had difficulty passing the yearly physical tests while in the Reserves but had always managed to pass them; after the in-service injury his muscles always hurt if he put pressure on them and he continued to experience muscle spasms; and he was treated at VA beginning in 2009. In June 1979, the Veteran underwent a physical examination for enlistment in the service reserve. His spine was found to be clinically abnormal, due to scoliosis, assessed as mild to moderate. He was qualified to enlist. In October 1979, the Veteran sought medical attention for trauma to his low back, with an onset being the previous 24 hours. On objective examination, the clinician noted mild scoliosis, secondary to left paravertebral muscle spasm. The assessment was acute low back strain, with secondary muscle spasm. The Veteran was directed to the physical therapy clinic on the same day in October 1979. The physical therapy clinic report noted he had been thrown on his back the previous day. The physical therapy consultation noted the Veteran had difficulty with the heel to toe walk because of a spasm. He was tender to the left, in the area of the L5-S3 paravertebrals. The assessment remained acute lumbo-sacral strain. The report from the October 1979 lumbosacral spine x-ray study is of record. The given history was trauma within 24 hours, left paravertebral muscle spasm. The clinician who read the x-ray study noted it was difficult to position the Veteran because of his discomfort. There was a tilt to the right; however that was possibly due to the muscle spasm. Otherwise, the x-ray study was within normal limits, the alignment was normal, there was no fracture, and the disc spaces were normal. Another treatment entry was dated the next day in October 1979. The clinician, who was the same physician's assistant who examined the Veteran the day before, noted the Veteran's back had no muscle spasm, and assessed resolving low back strain. The Veteran was advised to have no "PT" (physical training) and no lifting more than 20 pounds for five days, and then return as needed. There were no further medical entries for the low back for the remainder of the active service. The Veteran's DD Form 214 indicated he was honorably separated from active duty in February 1980 to continue his participation with the reserves. His service treatment records do not contain any Report of Medical Examination dated in 1980 or labeled as for the purpose of separation. The Veteran's reserve and Guard treatment reports are of record. In January 1984 he completed a Report of Medical History, for the purpose of his physical examination every four years ("quad"). He indicated in the negative for recurrent back pain. The January 1984 Report of Medical Examination found his spine clinically normal. In June 1985, the Veteran completed another Report of Medical History for reenlistment in the reserve. Again he indicated in the negative for recurrent back pain. On a June 1985 Applicant Medical Prescreening form, he again indicated in the negative as to whether he ever had or has now back trouble. The June 1985 Report of Medical Examination, for the purpose of enlistment, again found his spine clinically normal. In October 1990 the Veteran completed another Report of Medical History, for his "quad" examination. Again he indicated in the negative for recurrent back pain. The October 1990 Report of Medical History also found his spine clinically normal. In June 1991, the Veteran completed a Report of Medical History for the purpose of enlisting in the Guard. He indicated in the negative for recurrent back pain. The June 1991 Report of Medical Examination also found his spine clinically normal. There were no other documents dated after this June 1991 examination. The Veteran's October 2008 claim included the statement that he had no knowledge that he was qualified for medical treatment at a VA medical facility and that he only went to a doctor on occasion because he didn't have medical insurance. In February 2009 the Veteran was afforded a VA spine examination. The Veteran described the in-service injury as having been thrown to the floor during training and that he had had persistent low back pain ever since. The examiner noted the in-service diagnosis of acute low back strain secondary to back spasms. The Veteran denied any hospitalization or surgery. He indicated the pain was at the L5 level. Upon objective examination, the examiner reported no findings of scoliosis, lumbar lordosis, or reverse lordosis. A MRI study was performed and compared against a February 2009 x-ray study. The findings of the MRI study were that vertebral height, alignment, and signal intensity were all normal. There was no evidence of disc herniation. The concluding impression was a normal MRI of the lumbar spine. The x-ray study found very minimal scoliosis convex to the left at the L3 level; however, the clinician noted that this may be secondary to the positioning of the Veteran. There was no compression fracture, but there was minimal degenerative disc disease at L3-L4. The impression was minimal degenerative disc disease L3-L4 level. The examiner concluded the report with a diagnosis of lumbago with normal MRI of the lumbar spine. He found this low back condition less likely than not caused by or a result of the in-service acute low back strain with muscle spasms. The rationale for the opinion was that the Veteran's in-service diagnosis at the time of injury was consistent with the acute injury and his age. The Veteran had not sought medical treatment and had no diagnoses from either VA or private physicians. His current complaints were more consistent with degenerative joint disease or mechanical musculoskeletal back pain, a degenerative condition that develops over time. Given the age discrepancy and the length of separation between the current complaints and the in-service complaint, the examiner opined it was unlikely the current condition was caused or related to the in-service event. Private treatment records associated with the claims folder reveal that in June 2009 the Veteran sought treatment for low back pain, with an onset of the past week. He reported a history of back injury years ago that acted up occasionally. The clinical assessment was lumbosacral myofascial strain, low back pain, and acute sciatica. The report contained no opinion regarding the etiology of the pain. VA treatment records associated with the claims folder demonstrate that the Veteran was seen in May 2010 requesting treatment for lumbar pain. The clinician noted the Veteran's February 2009 x-ray study had found minimal degenerative disc disease at L3-L4 and that the March 2009 MRI was considered normal. There was no acute pathology. A July 2010 VA physical therapy evaluation assessed the Veteran's low back as chronic discogenic back pain with severe muscular guarding. At the time of a September 2010 visit, chronic low back pain was again noted with a diagnosis of lumbago being rendered. December 2010 x-rays of the lumbar spine revealed minimal degenerative changes in the lumbar spine. The Veteran was noted to have very slight retrolisthesis of L2 upon L3 likely of degenerative origin. The minimal changes at L2-3 were noted to be new since February 2009. In January 2011, the Veteran reported having back pain radiating into his legs. Although some of the VA treatment reports included the Veteran's history of having been thrown down on his back in service and his report that the pain had continued ever since then with varying intensities, no VA treatment record contains an opinion by VA medical personnel that attributed his current condition to that in-service injury. In November 2010, the Veteran testified before the undersigned. The Veteran stated that he was wrestling in the barracks and someone picked him up and slammed him to the floor. He indicated that he could hardly move. He reported that he crawled into bed and stayed there until morning. He noted going to the hospital the next morning. The Veteran reported that x-rays were taken and he received physical therapy. He stated that it was few weeks before he went back to full duty. The Veteran indicated that he was being treated at VA and had first been seen there in 2009. He indicated that he had difficulty passing the yearly physical tests while in the Reserves but had always managed to pass them. The Veteran stated that after the in-service injury his muscles always hurt if he put pressure on them. He testified that he continued to experience muscle spasms. The Veteran indicated that he went for treatment at Creighton University following service. (As noted above, attempts to obtain these records were unfruitful as the Veteran did not supply any written authorizations). He testified that he never sought VA medical treatment because he had been told in the 1980's that VA did not treat reservists. In a November 2010 statement, the Veteran's wife reported that she remembered the Veteran complaining about his back in 1980 and that he continued to experience back pain over the years which resulted in him missing work and leaving jobs. She remembered the Veteran telling her that he had injured his back in service. Social Security records obtained in conjunction with the Veteran's claim, in addition to containing numerous VA treatment records, also contained the results of a December 2010 disability examination, wherein it was noted that the Veteran had minimal disc changes at the L3-4 level. The Veteran was also reported to be morbidly obese at that time. In a March 2012 statement, the Veteran's wife indicated that he slept in a fetal position until his medication took effect. She stated that it would take a good period of time before the Veteran could get up and walk. She further reported that it was hard for him to do any work because of the pain in his back, legs, and feet. As noted above, the Board remanded this matter for further development in April and October 2012. While the Veteran was afforded a May 2012 VA examination and a July 2012 addendum was subsequently added in accordance with the April 2012 remand, the Board found the results of the examination and addendum reports did not comply with the directives of the remand and requested that the Veteran be afforded an additional VA examination in its October 2012 remand. In accordance with the October 2012 remand, an opinion was obtained from a VA examiner in November 2012. The examiner, when rendering the opinion, indicated service, VA, and private treatment records had been reviewed. The examiner opined that the Veteran's pre-existing scoliosis was less likely than not to have been permanently worsened as a result of service from June 29, 1979 to February 8, 1980. It was observed that the Veteran's most recent X-ray ("low grade" biconvex thoracic scoliosis, 5/5/12) did not substantiate a claim of worsening scoliosis when compared to prior medical records. It was indicated that even though the LS series of October 1979 did not indicate scoliosis but suggested a tilt of lumbar spine due to muscle spasm there was other medical evidence in the record that indicated the presence of mild to moderate scoliosis at that time. Specifically, a medical record dated June 1, 1979 indicated mild to moderate scoliosis as existing at that time. The examiner indicated that, if anything, the Veteran's scoliosis probably improved from "mild to mod" scoliosis in June 1979 to "low grade" scoliosis in May 2012. In a January 2013 memorandum, it was noted that the Board had requested that the Veteran be afforded a VA examination and that only an opinion had been obtained. It was requested that the Veteran be afforded a VA examination, preferably with the examiner who had provided the November 2012 opinion. In conjunction with the January 2013 memorandum, the Veteran was afforded a VA examination in February 2013 with the same examiner who had provided the November 2012 opinion. At the time of the examination, the Veteran reported having had back pain in excess of 10 years. The Veteran described straining his low back after being thrown onto his back during training. The examiner noted a history of pre-existing low grade biconvex scoliosis. It was further observed that X-rays performed in 2010 had shown early degenerative changes in the lumbar spine. The VA examiner in February 2013 indicated that the Veteran had previously been diagnosed with chronic lumbosacral strain (date unknown), low grade scoliosis (date unknown), and mild degenerative lumbar disease (2010). Following examination, the examiner indicated that his opinion remained the same. He stated that there was no evidence to support the claim that the Veteran's pre-existing scoliosis condition was aggravated by military service. The examiner observed that a repeat x-ray of the lumbar spine had been performed and the report indicated no significant interval change/no worsening in scoliosis. The examiner observed that the May 5, 2012 x-ray specifically stated "mild biconvex thoracic scoliosis with upper convexity to the left unchanged...Impression: no change since December 16, 2010. Low grade biconvex thoracic scoliosis." A repeat thoracic spine x-ray performed on February 9, 2013, further corroborated that impression with findings of "mild rotatory scoliosis with no significant interval changes." The examiner in February 2013 stated that, in summary, he was still of the opinion that no aggravation of the Veteran's scoliosis due to service had occurred. The examiner indicated that he had reviewed the Veteran's claims folder. He also stated that he was a board-certified occupational medicine physician and a Fellow of the American College of Occupational and Environmental Medicine. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131. 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. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 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. 38 C.F.R. § 3.306. 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 C.F.R. § 3.306. Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 C.F.R. § 3.306. The Veteran has claimed that his low back was injured in service and that he has experienced pain as a result since service. The Veteran's scoliosis, mild to moderate, was "noted" on the Reports of Medical Examination at entrance into service in June of 1979. As the preexisting scoliosis was noted at service entrance, the presumption of soundness at entry into service does not attach. 38 U.S.C.A. § 1111. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there has been any measured worsening of the disability during service, and then whether this constitutes an increase, permanent in nature, in the disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). The primary question then is whether the preexisting scoliosis is shown to have increased in severity during active service. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). The June 1979 (enlistment) Report of Medical History included the finding of an abnormal spine and a notation by the examiner that the Veteran had mild to moderate scoliosis. In October 1979 the Veteran was treated for an acute lumbar-sacral muscle strain that was found to be resolving the next day. The October 1979 treatment entry reflects that, even after the in-service back injury when the Veteran was being treated for the acute lumbar-sacral strain, his scoliosis was still assessed as mild. Subsequent service treatment record entries reflect no worsening of preexisting scoliosis, or even chronic back complaints, in service. The absence of further complaints, findings, or treatment in service, in the context of diagnosis of acute lumbar-sacral strain in October 1979, is further evidence that the preexisting low back scoliosis did not worsen in service. The fact that the Veteran separated from active duty in February 1980 to continue his participation with the reserves also reflects his belief that he did not have a back disability that would disqualify him from reserve service. As further evidence of lack of worsening of preexisting scoliosis, in addition to the absence of complaints or treatment for a back disorder after service separation, in various post-service histories, the Veteran affirmatively denied any history or complaints of low back disorder. At a series of reserve examinations from 1984 to 1991, the Veteran denied any history or complaints of back problems. Such history reported by the Veteran is also consistent with the absence of clinical findings of back disability during the years after service separation (while still in reserve service). Every Report of Medical Examination for the Veteran's reserve service, dated from 1984 to 1991, also did not note any clinical abnormality of the spine. As to the Veteran's contentions that he had back problems immediately following service, which have been continuous since that time, the Board finds that the Veteran's denials of back problems in numerous reserve treatment/medical history records prepared in close proximity to the claimed in-service injury are more probative than are his assertions voiced decades later and in connection with a claim for disability benefits. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by a veteran). It simply is not consistent that the Veteran would have been experiencing back problems but would at the same time deny any such problems in documents prepared to address his health status while serving in the Reserves. Likewise, the Veteran's wife's statements that he had had back pain since 1980 are also inconsistent with the medical treatment records, which included history provided by the Veteran, prepared in much closer proximity to the Veteran's in-service injury, that demonstrate consistent denials of any back problems in close proximity to service. For the above reasons, aggravation of preexisting scoliosis has not been established, either through the clinical evidence of record or through the reports of medical history/statements provided by the Veteran during his Reserve service following the above reported inservice incident. When evaluating the weight of medical evidence, the Board is guided by the principle that the probative value of a medical opinion largely rests upon the extent to which such opinion is based upon a thorough evaluation of the Veteran's medical history, including but not limited to the medical evidence contained in the claims file. See, e.g. Miller v. West, 11 Vet. App. 345, 348. The Board may examine the factual foundation of a medical opinion, including whether the physician had access to relevant information of record. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). In this regard, the Board notes that the evidence does not include medical evidence demonstrating that the pre-existing scoliosis was aggravated by (worsened during) service. The Board further observes that the November 2012/February 2013 VA examiner provided an opinion that the Veteran's pre-existing scoliosis was less likely than not to have been permanently worsened as a result of service from June 29, 1979, to February 8, 1980. The Board is placing great probative weight on this opinion. The examiner's opinion was based upon a thorough review of the claims folder and a comprehensive examination of the Veteran. The examiner provided detailed rationale to support his opinion. The Veteran's entire claims file, which at the time included his service treatment records, private and VA treatment records, and statements from the Veteran along with other lay statements, was reviewed and considered. Based on all of the evidence, the examiner rendered an opinion that was supported by detailed and complete rationale. There was no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Thus, the Board finds this examiner's opinion to be the most probative evidence of record. In sum, the preponderance of the evidence of record is against a finding that the Veteran's preexisting scoliosis, which was noted at entrance into service, underwent any increase in severity during service. For these reasons, the Veteran's appeal as to this issue must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a back disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs