Citation Nr: 1320200 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 08-04 337 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for a back disorder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active service from February 2007 to April 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board previously remanded this matter in July 2012 for additional development. The development ordered in the remand included requesting information from the Veteran about medical records and obtaining a VA examination. The Board finds that the remand directives have been satisfied. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. A back disorder was not identified upon entrance into service. 2. A back disorder, diagnosed as lumbar strain, clearly and unmistakably pre-existed military service. 3. Lumbar strain was aggravated by active service. CONCLUSION OF LAW The criteria for service connection for a back disorder, diagnosed as lumbar strain, have been met. 38 U.S.C.A. §§ 1110, 1153, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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), 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court clarified that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, in a June 2007 letter, the RO informed the Veteran of the evidence required to substantiate his service connection claim. The letter advised the Veteran what information and evidence must be submitted by the Veteran and what evidence VA would obtain. This letter included provisions for disability ratings and for the effective date of the claim. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records and post-service VA and private treatment records. The Veteran was afforded VA examinations in July 2007 and July 2012. An addendum medical opinion was obtained in March 2013. To that end, 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 the VA opinions obtained in this case are adequate, as the opinions were predicated on a full reading of the private and VA medical records in the Veteran's claims file. The VA nexus opinions provided considered all of the pertinent evidence of record, to include service treatment records, VA treatment records, and the statements of the Veteran, and provided a complete rationale for the opinion stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. II. Analysis of Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship of nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran shall be presumed 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 soundness under 38 U.S.C.A. § 1111, VA must show by clear and unmistakable evidence that the disease or injury existed prior to service and by clear and unmistakable 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). The 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). 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(a). 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. §§ 3.304, 3.306(b). A preexisting disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). Aggravation for purposes of entitlement to VA compensation benefits requires more than that a preexisting disorder become intermittently symptomatic during service; rather, there must be permanent advancement of the underlying pathology. Accordingly, temporary or intermittent flare-ups of a preexisting disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, is worsened. See Jensen v. Brown, 4 Vet. App. 304, 306 -07 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991); Verdon v. Brown, 8 Vet. App. 529, 536-7 (1996). The Veteran asserts that a back disability is related to an injury in service. He asserts that he sustained a back injury while unloading a truck in March 2007. See DRO Hearing Transcript June 2009. The Veteran had active duty service from February 2007 to April 2007. A back condition was not noted upon enlistment examination in November 2006. In this case, the Board finds that there is clear and unmistakable evidence that a back disorder pre-existed the Veteran's entry into military service. At a hearing at the RO in June 2009, the Veteran testified that he had a back injury in 2004. Records from the Insurance State Fund Corporation, dated in 2004, reflect treatment of lower back pain and spasms. The records show that the Veteran reported that he had pain in his back after he slipped on stairs while unloading crates. Service treatment records reflect that the Veteran reported a history of back injury in approximately 2005. VA examination reports reflect that physicians who reviewed the claims file noted a history of treatment for back injury in 2004. Accordingly, the Board concludes that the medical evidence of record establishes that a back disorder clearly and unmistakably pre-existed service. However, the presumption of soundness is not rebutted, as the Board finds that his back disorder was aggravated by service. By way of background, service treatment records reflect treatment of back pain. The Veteran reported to sick call in March 2007 with a complaint of back pain that flared up during a working party and then worsened while doing pushups. The Veteran reported a history of physical trauma in approximately 2005. He reported that he had a work-related injury to his back where he injured his sciatic nerve and had to wear a brace for 2 to 3 months. The Veteran reported that, when he eventually returned to work, the symptoms returned, and he was told that he should not continue working in a job that required heavy lifting. A diagnosis of back pain and history of back injury was rendered. A radiology report dated in March 2007 shows that a lumbar spine x-ray revealed a healing fracture S4-5 and normal lumbar spine. In July 2007, the Veteran had a VA examination. With regard to the Veteran's history of back pain, the VA examiner noted a history of a back injury in 2004. The Veteran reported that he did not have back symptoms prior to active service. The Veteran reported that he injured his back in March 2007 while moving heavy metallic beds. He reported that he was seen in sick call two days after the injury due to intense pain in the low back. He reported that he was prescribed oral medications and received physical therapy, which did not alleviate his pain initially. The report noted that the Veteran received a temporary profile for this reason. The Veteran reported that he continued having pain in the low back, especially on exercising, when in a standing or sitting position for a long time or marching. The Veteran also reported pain in his low back when lifting heavy weight and when standing straight again after bending. The Veteran reported complaints of daily low back pain. The VA examiner noted that there was a history of an injury to the low back in 2004 at work while taking heavy boxes out of a truck. The Veteran reported no other medical condition as occurring before February 2007. The VA examiner diagnosed an old fracture in the sacral area. The VA examiner did not provide an opinion regarding whether a back disability was incurred in or aggravated by service. At a hearing at the RO in June 2009, the Veteran testified that he injured his back in March 2007. He testified that he previously injured his back in February 2004. The Veteran stated that he did not have a fracture at that time and that the x-rays were negative. He stated that he was treated for muscle spasm. The Veteran had a VA examination in July 2012. The Veteran reported that he injured his back in 2007 while moving furniture. The Veteran reported that he went to sick call after three days of low back pain and was treated with anti-inflammatory medicine. He reported that he was seen two weeks later for x-rays, where a healing fracture of his back was seen on x-ray. The VA examiner diagnosed old fracture, sacral spine and lumbar strain. The VA examiner opined that the sacral fracture was "not at least as likely as not" aggravated beyond the natural progression since there is no history of or evidence of blunt trauma to the sacrum, and the mechanism of injury described in the medical records and by the patient (carrying furniture) would not likely cause a sacral fracture. The VA examiner stated that the lumbar strain (diagnosed as lumbago and/or backache in his progress notes since the military) did not have its onset in the service but was at least as likely as not aggravated by military service, since the progress notes of March 18, 2004 say that the Veteran was found without pain in his back and with full range of motion at that time and he now has pain and tenderness of his lumbar paravertebral muscles and decreased range of motion as seen on physical examination. The VA examiner opined that the increase in severity of lumbar strain was at least as likely as not above and beyond its natural progression since a muscle strain should heal completely unless the muscle fibers are re-injured, and a process of inflammation is elicited again. The VA examiner noted that the Veteran had evidence in his records of an x-ray from February 2004 without a sacral fracture and x-rays in 2007 showing a healing fracture of S3-S4 (two weeks after he reported a back injury in the military due to carrying heavy furniture), but it is not likely to see evidence on the x-rays of a healing fracture just two weeks after an insult. The VA examiner reasoned that the mechanism of injury would be a blunt trauma, not carrying heavy objects. The VA examiner explained that, if there were to be a fracture from lifting heavy objects such as furniture, the fracture would be expected in the lumbar spine which are the vertebrae which bear weight when standing and walking (not the sacral bones). The VA examiner indicated that, therefore, the healing sacral fracture which appears on the x-ray in the military is not at least as likely as not due to moving heavy furniture. The July 2012 VA examiner opined that the old sacral fracture was "not at least as likely as not" aggravated beyond the natural progression since there is no history of or evidence of a blunt trauma to the sacrum, and the mechanism of injury described in the medical records and by the patient (carrying furniture) would not likely cause a sacral fracture. The VA examiner stated that lumbar strain (diagnosed as lumbago and/or backache in progress notes in the military) that the Veteran is diagnosed with did not have its onset in the military service but was at least as likely as not aggravated by military service since the progress notes of March 18, 2004 stated that the Veteran was found without pain in his back and full range of motion at the time and now has pain and tenderness of his lumbar paravertebral muscles and decreased range of motion. In March 2013, the Appeals Management Center obtained an independent medical opinion based upon a review of the claims file. The independent examiner reviewed the claims file and concluded that it is less likely than not that the Veteran's claimed back disorder was incurred in service or aggravated beyond the normal aging process. The examiner noted in pertinent part that, in 2004 and 2005, the Veteran experienced lower back injuries to include fracture of the sacrum. The injuries were conservatively treated with immobilization, to include a back brace for 2 to 3 months and ANSAIDS. The examiner further noted that the Veteran experienced immediate discomfort of his lower back within the first three weeks of basic training. By March 2005, the Veteran was unable to continue his basic training schedule. The Veteran was seen at Charleston Naval Health Clinic for conservative treatment (ANSAIDS) and physical therapy. The examiner stated that, although the Veteran underwent a similar regime as fellow soldiers, he developed lower back pain that warranted medical attention. The examiner stated that the Veteran did not undergo an injury or traumatic event. The examiner opined that the amount of discomfort experienced was a normal and natural first response to exercise for anyone who had a healed fractured sacrum. The examiner further stated that the Veteran's back was less likely as not exposed to severe conditions because the Veteran had limited exposure to the trials and tribulations of basic training and experienced immediate discomfort. The examiner stated that it appears that any exercise was at least as likely as not to cause lower back discomfort, given the Veteran's history. The examiner concluded that it is therefore less likely than not that there was an increase in the severity of the Veteran's back disorder or that service increased the natural progress of the condition. The examiner concluded that the Veteran's lower back condition was less likely than not aggravated beyond the natural aging process. The examiner noted that the radiographic report dated in March 2007 observed a well-healed fracture of S4-5. The examiner stated that the clinical findings were consistent with a lower back condition secondary to the Veteran's 2004-2005 injuries. The examiner noted that there was no clinical evidence of an additional diagnosis separate and/ or proximately due to or aggravated by his claimed condition at the time of active duty. The examiner noted that, if the Veteran alleges additional conditions, it would be mere speculation to assume or attribute those findings to his limited time in basic training. The Board acknowledges that conflicting medical evidence has been presented with respect to the claim. It is the responsibility of the Board to assess the credibility and weight to be given the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. See Guerrieri v. Brown, 4 Vet. App. 467, 470-471(1993). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Board, however, may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App 171 (1991). Greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this case, both the July 2012 and March 2013 medical opinions were based upon a review of the claims file. The July 2012 VA examination was performed by an orthopedic physician and included a physical examination of the Veteran. In contrast, the March 2013 opinion was not based an examination of the Veteran. In addition, it appears that the July 2012 examiner was better qualified and had greater expertise. The examiner is an orthopedic specialist. By contrast, the March 2013 examiner is a podiatrist. The Board finds the opinion of an orthopedic specialist of higher probative value than that of a podiatrist with regard to the etiology of the Veteran's back disorder. For these reasons, the Board accords greater probative value to the July 2012 medical opinion which found that lumbar strain was aggravated during active service. In conclusion, the Board finds that a back disorder, diagnosed as lumbar strain, clearly and unmistakably pre-existed service. The Board finds that it is not shown by clear and unmistakable evidence that lumbar strain was not aggravated by service. A competent and probative medical opinion concluded that lumbar strain increased in severity beyond natural progression during service. Accordingly, the Board concludes that service connection for a back disorder is warranted. ORDER Service connection for a back disorder is granted. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs