Citation Nr: 1332983	
Decision Date: 10/22/13    Archive Date: 10/24/13

DOCKET NO.  11-24 062	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

1.  Entitlement to service connection for a thoracolumbar spine disability.  

2.  Entitlement to service connection for right leg radiculopathy. 


ATTORNEY FOR THE BOARD

O. Lopez, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 2008 to June 2008. 

This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. 

The issue of entitlement to service connection for right leg radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  There is clear and unmistakable evidence that the Veteran's thoracolumbar spine disability pre-existed active duty service.

2.  The evidence of record shows that the Veteran has a thoracolumbar spine disability that was aggravated beyond its natural progression during active service. 


CONCLUSION OF LAW

The criteria for service connection based on aggravation for a thoracolumbar spine disability have been met.  38 U.S.C.A. §§ 1101, 1110, 1111, 1153, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and to Assist

Upon its receipt of a claim for veterans' benefits, VA, under the Veteran's Claims Assistance Act of 2000 (VCAA), must: (1) notify the claimant of the information and evidence not of record necessary to substantiate the claim; and (2) assist the claimant in substantiating the claim.  38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012).  In this case, the Board is granting the Veteran's claim in full.  Therefore, if VA committed any errors regarding its duties to notify or to assist, those errors were harmless and did not prejudice the Veteran.  


II. Merits of the Claim

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service.  See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013).  Generally, "[t]o 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."  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013).  

Before this "presumption of soundness" can be applied, there must be evidence that a disability or injury that was not noted on entrance into service manifested or was incurred in service.  See Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2012).  Where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on a veteran's entrance examination report, the presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury preexisted service.  Id.  

The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service.  The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition.  38 U.S.C. § 1153.  If this burden is met, the veteran is not entitled to service-connected benefits.  However, if the government fails to rebut the presumption of soundness, the veteran's claim is one of service connection.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004);  See also Horn v. Shinseki, Vet. App. 231 (2012).

In deciding a claim, the Board must consider all information and lay and medical evidence of record.  The Board must provide reasons and bases to support its decision.  However, the Board need not discuss every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence).

When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the Veteran.  38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). 

The facts of this case were summarized by the Board in a VHA opinion request dated in August 2013.  The Board incorporates the facts detailed therein by reference and finds no need to recount them here.

The Board obtained a VHA opinion to resolve the following questions:  (1) whether there is clear and unmistakable evidence that the Veteran's diagnosed thoracolumbar spine disability pre-existed service; and (2) if the answer to first question is yes, whether there is also clear and unmistakable evidence that the Veteran's disability did not worsen beyond its natural progression during the Veteran's period of active service. 

The VHA opinion includes a sufficiently detailed description of the Veteran's claimed disability, the expert provided a relevant history evidencing review of the Veteran's medical history, and the expert supported his opinion in which he fully answered the Board's questions with an analysis.  The Board, therefore, finds that the opinion is adequate.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  

As to the first question, the VHA examiner answered that "there is clear and unmistakable evidence from the history, physical examination, and imagining studies demonstrating post-traumatic signs of degenerative disease, ... degenerative disc disease, and anterior wedging of T1, occurred prior to induction into service." As to the second question, the examiner found "no clear and unmistakable evidence that the Veteran's pre-induction condition did not worsen beyond its natural progression" during his brief period of active service. According to the examiner, the "presence of the small annual tear at the L4-L5 level is the result of an acute service connected injur[y], which is consistent with this Veteran's chief complaint given in his history while on active duty."  In summary, the examiner opined the following:  1) "There is clear and unmistakable evidence that the service connected injuries exacerbated the pre-induction non-service connected injuries;" and 2) "There is clear and unmistakable evidence that the pre-induction injury [was] compounded by the service connected injuries resulted in the following diagnosis of INTERVERTEBRAL DISC SYNDROME (IVDS)." 

While no back problems were reported or noted on the entrance examination upon the Veteran's induction into the service, the evidence of record establishes by clear and unmistakable evidence that there was pre-existing thoracolumbar spine disability.  As such, the presumption of soundness with regard to the Veteran's thoracolumbar spine disability has been rebutted, and, therefore, that the claim is one of aggravation. 

In deciding the claim, the Board has considered all the evidence of record and finds the VHA opinion to be the most probative evidence on whether service connection by way of aggravation has been established.  Weighing the evidence of record, the Board concludes that the evidence supporting a grant of service connection by way of aggravation for a thoracolumbar spine disability is at least in equipoise.  Here, there is clear and unmistakable evidence of a pre-existing thoracolumbar disability which in turn was aggravated by service, and has resulted in the current diagnosis of an intervertebral disc syndrome.  Under such circumstances, the Board finds that reasonable doubt should be resolved in the Veteran's favor and that entitlement to service connection by way of aggravation for a thoracolumbar spine disability is warranted. 


ORDER

Entitlement to service connection by way of aggravation for a thoracolumbar spine disability is granted. 


REMAND

Unfortunately, a remand is required for the second issue on appeal.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide this claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2013).

In March 2010, the Veteran underwent an examination, the report of which reveals a diagnosis of "radiculopathy of the right lower extremity."  However, in a report of a separate examination that the Veteran underwent in June 2011, the examiner found no objective findings of radiculopathy, despite the Veteran's complaints of chronic radicular-type symptoms in the right leg. 

In view of the Veteran's current diagnosis of intervertebral disc syndrome and Board's grant of service connection for a thoracolumbar spine disability, the Board finds that re-assessment of the Veteran's claim of right leg radiculopathy (claimed as a right leg injury) is necessary.  

Accordingly, the case is REMANDED for the following action:

1.  The RO/AMC shall contact the Veteran and his representative and ask them to specify all private and VA medical care providers who have treated him for any right leg radiculopathy.  After the Veteran has signed the appropriate releases, the RO/AMC shall then attempt to obtain and associate with the claims file any records identified by the Veteran or his representative that are not already associated with the claims file, in particular any records of treatment or evaluation since June 2011.  All attempts to procure records should be documented in the file.  If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 

2.  After completion of the above development, the RO/AMC shall schedule the Veteran for a VA orthopedic examination to re-assess the Veteran's claim of right leg radiculopathy.  The Veteran's claims file must be reviewed by the examiner in conjunction the examination, and he or she shall note such review and identify important information gleaned therefrom in an examination report.  The examiner shall conduct all necessary testing.  The examiner shall provide an opinion indicating whether it is at least as likely as not (a 50 percent probability or greater) that any right leg radiculopathy, if diagnosed, is due to active service or due to or aggravated by the Veteran's service-connected intervertebral disc syndrome.

A clear rationale for all opinions and a discussion of the facts and medical principles involved must be provided in a legible report.  However, if the requested opinion cannot be provided without resort to speculation, the examiner must so state and explain why an opinion cannot be provided without resort to speculation. 

3.  After completing all development deemed necessary, the RO/AMC shall then readjudicate the Veteran's claim for a right leg radiculopathy.  If the decision remains unfavorable, the Veteran and his representative shall be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



____________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs