Citation Nr: 1327823 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 12-00 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for scoliosis of the thoracolumbar spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Bonnie Yoon, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This case comes before the Board of Veterans Appeals (Board) on appeal from a October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the benefit sought on appeal. The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent information or evidence. FINDINGS OF FACT 1. Scoliosis existed prior to service, and was noted upon the Veteran's entry into service. 2. The Veteran's preexisting scoliosis permanently worsened beyond its natural progression during service, resulting in his currently diagnosed disability. CONCLUSION OF LAW Scoliosis was aggravated during active service. 38 U.S.C.A. § § 1101, 1110, 1111, 1112, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board is granting in full the benefit sought on appeal with respect to the service connection claim. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Service Connection The Veteran contends that his scoliosis was aggravated by his duties during active service and therefore contends that he is entitled to service connection. Considering all of the evidence of record, and in light of the applicable laws and regulations, the Board shall afford the Veteran all reasonable doubt and the claim shall be granted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). In general, a veteran is considered to have been in sound condition upon entry into service, except as to defects, infirmities, or disorders noted on the entrance examination, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease preexisted service and was not aggravated during service . 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2012). However, when as in the instant case, the disability at issue was noted at entry, the presumption of soundness does not attach and the presumption of aggravation instead applies. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a) (2012). 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 The Board finds that the evidence effectively shows that the Veteran had a pre-existing condition noted upon entry into service . On the July 1966 entrance examination report, the Veteran was noted to have curvature of the spine, back trouble, and used back support. In addition, there is a report from Dr. H, dated June 1966, which stated that the Veteran was treated for back trouble. As this was recorded in the examination report at the time the Veteran was accepted and enrolled for service, there is no requirement to rebut the presumption of soundness with clear and unmistakable evidence. To the contrary, as noted previously, that presumption does not extend to the Veteran's claim and instead, the presumption of aggravation is for consideration. 38 U.S.C.A. § 1153. Having thus determined that scoliosis preexisted the Veteran's active service, the Board has considered whether this condition was aggravated in service. See id.; see also 38 C.F.R. § 3.306. VA 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. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). The cited statute provides that aggravation by service is presumed where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. Such a finding requires clear and unmistakable (obvious or manifest) evidence. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). The Board notes that scoliosis is "an appreciable lateral deviation in the normally straight vertical line of the spine." Dorland's Illustrated Medical Dictionary 1706 (31st ed.2007) [Dorland's]. The Board further notes here that while scoliosis may be congenital, it can also be caused or aggravated by certain diseases or events. For example, scoliosis can be caused or aggravated by, among other things, the development of hip disease, improper posture, muscle paralysis, and rheumatism of the dorsal muscles. Dorland's at 1706-07. In this case, there is conflicting evidence as to whether the Veteran's scoliosis represents a preexisting disease that permanently worsened in service. Accordingly, the Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Competency of evidence is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Here, following the notations of curvature of the spine, back support, and back trouble shown on entry, the relevant service treatment records show that, in May 1967 the Veteran was given Darvon for back pain. In June 1967, while being treated for an injury after jumping into a ditch, the Veteran reported having low back pain for the past two years. An examination showed moderate pain on extension and mild scoliosis. The Veteran was diagnosed with chronic lumbosacral strain, treated and improved. He was returned to duty later that month but was noted to still have lumbago. The records also note that the Veteran was seen in July 1967 with complaints of back pain. The separation examination in September 1968 showed a normal clinical evaluation but the Veteran noted having back pains and having worn a brace or back support. Also noted was the Veteran's treatment for back problems in 1967 in Japan, and no present complaints. Also included with the service treatment records was a note from a Dr. H, dated June 1966, which stated that the Veteran was treated for back trouble and that x-rays revealed a "old compression of 12th lumbar vertebra." The Veteran was afforded a VA examination in June 2009. The VA examiner noted that the Veteran was seen for back pain on several occasions during service and that a diagnosis of chronic back pain was made. The Veteran stated to the examiner that he was known to have scoliosis, and that he had been seeing doctors and was receiving physical therapy after service. The Veteran also stated that the onset of his condition was in 1966, and that he uses naproxen from time to time for treatment. The examiner noted pain to be rated as a 6 on a scale of 1-10. Following a physical examination, the examiner diagnosed the Veteran with mild scoliosis of the thoracolumbar spine, as opined that it is as likely as not that the Veteran is service connected for that condition. In September 2009, a VA opinion was requested with regard to aggravation of the Veteran's back condition that existed prior to service. After a review of the Veteran's service treatment records and the June 2009 VA examination, the VA physician stated that "there was no clear and unmistakable evidence that his back condition was or was not aggravated beyond a natural progression by his military service. Therefore, any opinion would be speculative at best." Also included in the claims file is a letter dated June 2010 from a Dr. C, one of the Veteran's treating physicians, who stated that the Veteran was complaining of low back pain at his most recent evaluation. After reviewing his history, Dr. C. noted that the Veteran had lower back pain for many years, dating back to childhood. During military service, the Veteran's chronic low back pain was continuously aggravated by the conditions of his service. Dr. C. stated that it was his opinion, based upon a reasonable degree of medical certainty, that the Veteran's current lumbar problem was more likely than not aggravated beyond the natural progression of the military service. He also stated that it is his opinion that military service contributed to his current disability. Also contained in the records was a letter from a Dr. A, dated June 2010. Dr. A. stated that the Veteran was a regular patient of his office, going through very extensive treatments for lower back pains. Dr. A. also noted that the Veteran suffered severe back pain and a compression fracture as a teenager from a falling accident. He was required to wear a brace for almost 2 years. As a combat infantryman in Vietnam, the Veteran was required to carry 70 to 80 pounds of equipment and a 23 pound machine gun, as well as having to jump out of helicopters at different heights. Dr. A. opined that from his history and his current problems, it was possible that his back problems were more likely than not aggravated by military service. Another letter from Dr. A., dated September 2008, which is also contained in the claims file, states that the Veteran was a patient in his office since July 1980. He also noted that the Veteran had been seeing specialists to help treat his scoliosis. In addition to the three letters, numerous medical records from the Brain and Spine Center, Dr. M., and St. Luke's Hospital dating back from August 2003 to June 2010 show the Veteran underwent treatment for back pain and received injections to help control the pain in his back. The records also reveal current diagnoses of lumbar degenerative disc disease, lumbar stenosis, lumbar spondylosis, as well as scoliosis. After careful review, the Board finds that the preponderance of the evidence supports a finding that the Veteran's preexisting scoliosis permanently worsened in service. In this regard, the Board observes that, following his service entrance examination, the Veteran had scoliosis represented by a curvature of the spine while in service. The Veteran was treated for back pain in service and was diagnosed with chronic lumbosacral strain while in service. Additionally, current treatment evidence reflects that the Veteran suffers from mild scoliosis of the thoracolumbar spine. The June 2010 letter of Dr. C. observed that the Veteran's current lumbar problem was more likely than not aggravated beyond the natural progression of the military service. Because he is one of the Veteran's treating physician's and has reviewed the Veteran's medical history, Dr. C. is able to competently and credibly render a medical opinion as to the Veteran's scoliosis. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-03 (2008) (applying the Federal Rules of Evidence to find that the threshold inquiry in evaluating the probative value of a medical opinion is whether the examiner has sufficient facts and data upon which to base an opinion). Conversely, the September 2009 VA physician could not provide an opinion due to the lack of "clear and unmistakable evidence that the Veteran's back condition was or was not aggravated beyond a natural progression by his military service." The VA physician, in attempting to render an opinion, in essence applies the clear and unmistakable evidence standard against the Veteran when trying to determine whether his preexisting scoliosis worsened during service. The physician applies the wrong legal standard in this case since, under 38 U.S.C.A. § 1153, the burden falls to VA, and not to the Veteran, to rebut the presumption of aggravation through a showing of clear and unmistakable evidence that any showing of in-service worsening was due to the natural progression of the disease. Because of the September 2009 VA examiner's legally incorrect and inherently speculative opinion, the Board finds that opinion lacks probative value on the issue of the Veteran's scoliosis. As was noted above, the opinion of Dr. C. stated that the Veteran's current scoliosis was more likely than not aggravated beyond the natural progression of his military service. Additionally, the service treatment records show numerous in-service complaints of low back pain and a diagnosis of chronic lumbo sacral strain, which indicates that the Veteran's preexisting scoliosis was aggravated during active duty service. Because it has been determined that the Veteran had a pre-existing diagnosis of scoliosis prior to service, as well as a current diagnosis of scoliosis, and because the most probative medical opinion evidence of record indicates that the Veteran's preexisting scoliosis was permanently aggravated in service, the Board concludes that the preponderance of the evidence weighs in favor of his claim that the his scoliosis permanently worsened beyond its natural progression because of the events of his active service. ORDER Service connection for scoliosis of the thoracolumbar spine based upon aggravation is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs