Citation Nr: 1335927 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-00 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a lumbosacral spine disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Marine Corps from January 1976 to February 1977. The matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Houston, Texas that declined to reopen a previously denied claim of service connection for a lumbosacral spine disability. In July 2008 the Veteran and a witness testified before a Decision Review Officer. In January 2012 the Veteran and his spouse testified before the undersigned. Transcripts of both hearings are of record. In June 2012 the Board reopened the Veteran's claim and remanded the appeal for additional development. The claim was again remanded in February 2013. The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT There is clear and unmistakable evidence that a lumbosacral spine disability existed prior to the Veteran's entrance to active duty and was not aggravated by such service. CONCLUSION OF LAW The presumption of soundness is rebutted and a lumbosacral spine disability pre-existed the Veteran's entry into active military service and was not aggravated by the Veteran's active duty military service. 38 U.S.C.A. §§ 1110, 1111, (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). These notice requirements were accomplished in a letter sent in February 2007, prior to the rating decision on appeal. This letter also included notice of the type of evidence necessary to establish a disability rating or effective date for the issue under consideration, pursuant to the holding in Dingess/Hartman v. Nicholson, 19 Vet App 473 (2006). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Here, the Veteran's statements, his service treatment records, Social Security Administration records, and post-service VA and private treatment records have been associated with the claims folder. Additionally, the Veteran has not identified any outstanding records that have not been requested or obtained. The Veteran was provided with VA examinations in September 2008 and August 2012. He was also provided with a VA addendum opinion in February 2013. The Board finds that these reports and medical opinions, when viewed as a collective whole and considered in the context of the existing evidence of record, provide sufficient facts for the Board to adequately decide the claim. In rendering the later medical opinions in the claim, the August 2012 and February 2013 VA examiner addressed the essential contentions of the claimant, were informed by a review of the Veteran's claims file, and presented their opinions in the context of the Veteran's pertinent clinical history. The Board thus finds the August 2012 VA medical opinion and February 2013 addendum opinion adequate for purposes of adjudicating the claim for a lumbosacral spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Any deficits in the August 2012 medical opinion have been rectified by the subsequent February 2013 corrective medical opinion obtained thereafter. The Board also finds that any concerns in light of Bryant v. Shinseki, 23 Vet. App. 488 (2010) are moot as the development necessary to substantiate the claim was ordered by the Board. The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board is satisfied that there has been substantial compliance with the remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Legal Criteria Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). A Veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C.A. § 1111 (West 2002); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the Government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant. In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (emphasis added). "The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition." Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added). This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. See Horn, 25 Vet. App. at 235. The burden is not met by finding "that the record contains insufficient evidence of aggravation." See id. If a Veteran is presumed sound at service entrance and VA is unable to rebut the presumption, a disease or injury that manifested in service is deemed incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2012) (noting that such a finding establishes the second element of service connection). However, even if an injury or disease is deemed to have been incurred in service pursuant to application of the presumption of soundness (or by a finding that the injury or disease was actually incurred in service), a Veteran must nonetheless establish by a preponderance of the evidence that a current disability is related to the in-service injury or disease. Gilbert, 26 Vet. App. 48 (citing Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009) ("The presumption of soundness . . . does not relieve the Veteran of the obligation to show the presence of a current disability and to demonstrate a nexus between that disability and the in-service injury or disease or aggravation thereof.") In making all determinations, the Board must fully consider the lay assertions of record. Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Background The Veteran's June 5, 1976, enlistment examination is negative for any complaints or diagnosis of a low back disorder. A June 29, 1976, service treatment record shows that the Veteran complained of lower back pain with pain in the right lower back. The Veteran reported that he had the pain for one year. On physical examination the Veteran's back was found to be within normal limits. The examiner ordered an x-ray to rule out abnormalities. A July 6, 1976, treatment record shows that the Veteran complained of low back pain for the past two to three weeks. On physical examination the Veteran's back was within normal limits. The examiner noted that the June 29, 1976, x-ray results were normal. The examiner prescribed exercises for back pain and the Veteran was instructed to return in ten days should the condition persist or worsen. A July 15, 1976, treatment record shows that the Veteran again complained of low back pain and reported a four month history. The Veteran reported the pain began the day prior after carrying a field pack. The examiner noted the physical examination was negative for any abnormalities and prescribed pain medication. A July 23, 1976, treatment record shows the Veteran again complained of low back pain and was placed on light duty for three days and instructed to return if the symptoms worsened. A July 29, 1976, treatment record shows that the Veteran again complained of low back pain and related it to wearing a flak jacket. On physical examination the Veteran's back was found to be unremarkable and within normal limits. Another July 29, 1976, treatment record revealed that on physical examination there was no limitation of range of motion of the Veteran's back. The examiner noted that the Veteran had a similar problem in basic training in March 1976 and was seen by a medical officer on the first day of boot camp but was told to continue. The Veteran also reported that while in school ten years ago he fell down. X-rays revealed that the Veteran's spine was within normal limits. The examiner prescribed physical therapy three times a week for a month and no lifting more than 30 pounds. Another July 29, 1976, record shows that the Veteran complained of low back pain aggravated by carrying a heavy flak jacket. The provisional diagnosis was strain of the L5 spine. An August 9, 1976, treatment record shows that the Veteran complained of acute low back pain and was diagnosed with an L5 strain. The Veteran reported a three year history of intermittent episodes of back pain. The examiner noted that there was no evidence of muscle spasms or tenderness to palpation. The examiner prescribed heat treatment and physical therapy three times per week for a month. A September 2, 1976, treatment record shows that the Veteran again complained of low back pain and reported a three year history of back pain. The Veteran complained of pain in his L5 area when lifting more than 30 pounds. On physical examination there were no muscle spasms and no limited range of motion on bending forward, lateral, and extension. The examiner's impression was an L5 strain. The examiner referred the Veteran to orthopedic and prescribed light duty with no physical training and pain medication. A September 2, 1976, orthopedic referral shows that the Veteran had been complaining of low back pain for about three months that was precipitated by doing strenuous exercise. The referral also shows that the Veteran went to physical therapy for one month but it did not provide any relief. The provisional diagnosis was lumbosacral strain. A September 28, 1976, orthopedic treatment record shows that the Veteran was diagnosed with a strain of the L5 spine. The examiner prescribed L5 support and recommended a change in military occupational specialty (MOS) to less strenuous duties. A November 11, 1976, orthopedic treatment record shows that the Veteran's symptoms began three years prior when his job required him to shovel in a tannery. The examiner prescribed a bed board. A November 11, 1976, treatment record shows the Veteran again complained of low back pain. The examiner noted that the Veteran's symptoms started before the Veteran enlisted in the Marine Corps. The Veteran reported pain when bending, lifting, and running. A November 24, 1976, treatment record shows that the Veteran reported that "the pain existed prior to my enlisting in the USMC". The Veteran also reported that "the recruiter told me not to say anything about it to the medical department". The examiner noted that there was nothing more that could be done for the Marine and he would be sent to orthopedics for a final examination. A November 24, 1976, orthopedic referral shows that the Veteran was given an MOS change, back brace, and bed board but his subjective complaints continued. The examiner noted that the Veteran claimed his pain existed prior to entry into the Marine Corp. The examiner concluded that there was no change in symptoms and running especially aggravated the pain. In February 1977 the Naval Medical Board found that the final diagnosis was strain, lumbosacral, chronic, recurrent, exited prior to entry (EPTE), not service aggravated. The Naval Medical Board concluded that the Veteran did not meet the minimum standards for enlistment or induction and that the Veteran was unfit for further military service by reason of physical disability and the physical disability was not incurred in, nor aggravated by, a period of active service. The Naval Medical Board recommended that the Veteran be discharged from the United States Marine Corps. The Veteran waived his right to a hearing before the Physical Evaluation Board and signed a Statement of Patient Concerning the Findings of a Medical Board with the box checked "discharged by reason of physical disability existing prior to entry on active duty and not aggravated by service". Post-service private treatment records dated October 1996 and post-service VA treatment records dated July 2000 to July 2008 show that the Veteran was treated for low back pain. A July 2000 VA MRI showed lumbar spondylosis with mild generalized posterior disc bulge at L3-4, L4-5, and L5-S1 junction. There was no significant spinal canal stenosis identified. Mild right neural foraminal narrowing was noted at L4-5 junction. In a July 2000 statement the Veteran reported that during boot camp one of the drill instructors stomped on his lower back while he was doing pushups. The Veteran reported that he was asked to testify against the drill instructor. In an April 2004 statement the Veteran reported that the drill instructor would call him racially charged names. He reported that the drill instructor stomped all of his weight on his lower back. He reported that a witness saw him and reported it to a higher ranked officer. The Veteran reported that at the hearing he was called in to testify and the drill instructor was given office hours, convicted and dismissed. The Veteran reported that the incident aggravated his back pain and after that the back pain became chronic and he began to experience lower back pain, however, out of fear he did not report it. The Veteran reported that his back pain became severe and he was given pain medications, a back brace, and a board to place under his mattress. The Veteran reported that he was asked to sign an affidavit waiving his rights. The Veteran asserted that at the time he was on several medications, only had a 9th grade education, and did not understand the terminology of what they were saying nor what was written on the affidavit because he was not giving the option of having the document translated into Spanish. The Veteran stated that he signed the waiver and the hearing before the Physical Evaluation Board ever took place. The Veteran also stated that he now believes that his rights were violated and he was discriminated against based on race. In a December 2006 claim the Veteran stated that his back was aggravated while wearing a flak jacket in training. The Veteran and a fellow serviceman testified at a DRO hearing in July 2008. The Veteran reported that he never had any back problems before he went into service. The Veteran reported that before service the muscles in his middle back bothered him after shoveling but never his lower back. The Veteran reported that the drill instructor stomped on his back while he was in the push up position. He also reported that the drill instructor was court marshaled for abusing Marines. The Veteran reported that he started having back problems after the assault. The Veteran's fellow service man testified that he noticed the drill instructor had taken the Veteran aside to exercise and after 30 minutes or so the Veteran was still doing excessive exercise. The Veteran was afforded a VA examination in September 2008. X-rays revealed there was no evidence of a fracture or sublaxation. Normal alignment of the spine was seen and sacroiliac joints were normal with widening or sclerosis. There was no loss of vertebral body heights and the normal intraverterbral disc spaces were normal. The examiner noted that a June 2006 MRI revealed slight bulging of the L4/L5 disc without disc protrusion. The VA examiner concluded that he could not resolve the issue without resorting to mere speculation because the Veteran had a gap in his medical care and his low back conditions from 1979 to 2001 with no records. On his December 2008 VA Form 9 the Veteran stated that he was in excellent physical condition when he entered service and the injury to his back was caused by the drill instructor stomping on his back while he was in push up position. In January 2012 the Veteran and his wife testified at a Board hearing. The Veteran testified that after the drill instructor stomped on his back he continued boot camp in pain. He reported that he did not seek medical care during boot camp. The Veteran reported that he could not do the forced marches because of his back pain. The Veteran also reported that carrying field packs made his back worse. The Veteran also reported that after service, from about 1978 to the early 1990s, he relied on treatment in Mexico. He also reported receiving treatment in Texas from 1991 to 2000. The Veteran's spouse testified that she met the Veteran in 1974 and the Veteran was very physically fit. She reported that he would mention that his back bothered him after he got out of service. The Veteran was afforded another VA examination in August 2012. The examiner noted that the Veteran reported that he has chronic dull to sharp lower back pain with numbness and tingling to the bilateral lower legs which started in 1976 after a drill sergeant in basic training stomped on his back while he was in the push-up position. X-rays revealed mild narrowing facets L4-L5 and L5-S1 bilaterally and sacroiliac joints within normal limits. The examiner noted that a January 2009 MRI revealed slightly increased bulging of the L4-L5 disc without neural foramina or spinal canal stenosis. The examiner concluded that the Veteran's lumbosacral spine disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In his rationale, the examiner stated that the medical evidence from the service treatment records from different providers in 1976 and 1977 showed that the Veteran had back pain that initially occurred while shoveling at a tannery prior to joining the service for which he received an EPTE discharge. He also pointed out that the Veteran signed his discharge paperwork attesting that he had this back problem prior to joining the service. The examiner further pointed to the lack of medical treatment records from 1976 until 2001 for lower back pain, which would show an on-going problem related to his back directly after service. Finally, the examiner explained that the x-rays and MRIs showed changes that are commonly seen in patients in the Veteran's particular age group and these changes were consistent with the Veteran's age group. In a February 2013 addendum opinion, the examiner stated that it was clear and unmistakable that the Veteran entered service with a pre-existing back disorder. In his rationale, the examiner explained that the medical evidence from the service treatment records from different providers in 1976 and 1977 showed that the claimant had back pain that initially occurred while shoveling at a tannery prior to joining the service for which he received an EPTE discharge. The examiner also pointed to the fact that the claimant signed his discharge paperwork attesting that he had this back problem prior to joining the service. The examiner also stated that it was clear and unmistakable that the Veteran's pre-existing back disorder was not aggravated beyond the natural progression of the disorder by his service. In his rationale, the examiner explained that the claimant had normal x-rays while in service. He also pointed to the lack of documented medical evidence for complaints of lower back pain post service from 1977 to 2001, which would show an ongoing problem from service. Finally, the examiner explained that the x-ray dated August 2012 and MRIs taken in January 2009 and June 2006 show mild changes to the lumbar spine that are commonly seen in patients in the Veteran's particular age group and that these changes were considered consistent for the Veteran's age. Analysis As the Veteran's service entrance examination was negative for any low back disorder, the presumption of soundness attaches. However, the Board finds that there is clear and unmistakable evidence that the Veteran's lumbosacral spine disability existed prior to service. First, the February 2013 examiner opined that the Veteran's lumbosacral spine disability clearly and unmistakably pre-existed service. The examiner explained that the medical evidence from the service treatment records from different providers in 1976 and 1977 showed that the claimant had back pain that initially occurred while shoveling at a tannery prior to joining the service for which he received an EPTE discharge. The examiner also pointed to the fact that the claimant signed his discharge paperwork attesting that he had this back problem prior to joining the service. Furthermore, the Board notes that in Doran v. Brown, 6 Vet. App. 283, 286 (1994), the Court held that a veteran's statement acknowledging preexisting conditions can be enough to rebut the presumption of soundness. The Board points to the Veteran's own statements in service regarding the etiology of his low back pain. The Veteran entered service in January 1976. Thereafter, a June 29, 1976 service treatment record shows that the Veteran reported a one year history of back pain. An August 9, 1976, treatment record shows that the Veteran reported a three year history of intermittent episodes of back pain. A November 11, 1976 orthopedic treatment record shows that the Veteran reported that his symptoms began three years prior when his job required him to shovel in a tannery. A November 24, 1976 treatment record shows that the Veteran reported that "the pain existed prior to my enlisting in the USMC". The Veteran also reported that "the recruiter told me not to say anything about it to the medical department". The Board acknowledges the Veteran's contentions that he did not have any low back disorder before service. The Board also acknowledges the Veteran's wife's testimony that the Veteran was physically fit before service and did not complain of back pain until after service. While the Veteran and his wife are competent to report on issues of which they have first-hand knowledge, when considered with the other evidence of record, the Board finds the Veteran and his wife's statements are not credible. As stated, a June 29, 1976, service treatment record shows that the Veteran reported a one year history of back pain. An August 9, 1976, treatment record shows that the Veteran reported a three year history of intermittent episodes of back pain. A November 11, 1976, orthopedic treatment record shows that the Veteran reported his symptoms began three years prior when his job required him to shovel in a cannery. A November 24, 1976, treatment record shows that the Veteran reported that "the pain existed prior to my enlisting in the USMC". The Veteran also reported that "the recruiter told me not to say anything about it to the medical department". Thus, weighing the Veteran's earlier statements, as reflected in his service treatment records, against the Veteran's and wife's later contentions that the Veteran's back condition began in service, the Board can and does attach more credibility and probative value to the earlier service department documents because they were made contemporaneously and were made solely for the purpose of seeking and obtaining medical treatment. As evidence contemporaneous to service directly contradicts the Veteran and wife's assertions that the Veteran's lumbosacral spine disability began in service, these later statements are afforded little probative weight. The Board also notes that the Veteran claims that he waived his right to a hearing before the Physical Evaluation Board and signed a Statement of Patient Concerning the Findings of a Medical Board with the box checked "discharged by reason of physical disability existing prior to entry on active duty and not aggravated by service" because he was on several medications, only had a 9th grade education, and did not understand the terminology nor what was written on the affidavit because he was not given the option of having the document translated into Spanish. The Board also notes 38 C.F.R. § 3.304(b)(3) (2013). The section provides that signed statements of veterans relating to origin, or incurrence of any disease or injury made in service if against his or her own interest is of no force and affect if other data do not establish the fact. Other evidence will be considered as though such evidence were not of record. Id. However, the Board finds that the Naval Medical Board documents that the Veteran signed are consistent with the oral reports the Veteran made contemporaneously in his service treatment records. As such, while the Veteran is competent to testify to such matters, the Board finds that the statements the Veteran endorsed by signing the Naval Medical Board documents to be more credible than the Veteran's current statements. Consequently, the Board finds that little probative weight can be assigned to the Veteran's assertion that he did not understand the affidavits he signed. As such, the Board finds that the VA opinions and service department findings show that the Veteran's lumbosacral spine disability clearly and unmistakably existed prior to his military service. However, with respect to rebutting the presumption of soundness, as noted above, the Board's inquiry does not end with a determination that a lumbosacral spine disability clearly and unmistakably pre-existed service. The Board must also determine whether such disability clearly and unmistakably was not aggravated during service. In this regard, the February 2013 VA examiner stated that it is clear and unmistakable that the Veteran's pre-existing back disorder was not aggravated beyond the natural progression of the disorder by his service. In his rationale, the examiner explained that the claimant had normal x-rays while in service. He also pointed to the lack of documented medical evidence for complaints of lower back pain post-service from 1977 to 2001, which would show an ongoing problem from service. Finally, the examiner explained that the x-ray dated August 2012 and MRIs taken in June 2006 and January 2009 show mild changes to the lumbar spine that are commonly seen in patients in the Veteran's particular age group and that these changes were considered consistent for the Veteran's age. The Board also notes that service treatment records consistently show that on physical examination the Veteran's low back was found to be within normal limits. Additionally, a July 29, 1976 service treatment record shows that on physical examination there was no limitation of range of motion of the Veteran's back. An August 9, 1976, treatment record shows that there was no evidence of muscle spasms or tenderness to palpation. A September 2, 1976, record also shows that on physical examination there were no muscle spasms and no limited range of motion on forward bending, lateral, and extension. A September 28, 1976, service treatment record also shows that x-rays were within normal limits. As the examiner's conclusions are fully explained and consistent with the evidence of record the Board assigns them great probative weight. The Board acknowledges that after the February 2013 examiner rendered his opinion; the Veteran submitted an October 1996 private treatment record showing that the Veteran was treated for low back pain. The Board finds that this evidence does not alter the examiner's underlying rationale that the Veteran's back pain was not aggravated by service because of the findings in service, lack of medical treatment over a number of years post-service, and post-service x-rays and MRIs that show the Veteran's back condition are consistent with aging. The Board is cognizant of the Veteran's contention that he received chiropractic care for his back after service; however, the Board finds most significant that the radiographic evidence and MRIs show findings that are not consistent with trauma or degenerative changes that have progressed at an abnormal rate. These physical findings support the examiner's underlying rationale of no aggravation beyond the normal progression. The Board acknowledges that the Veteran claims that he was stomped in his lower back by a drill instructor during boot camp which caused his lumbosacral spine disability. The Board has also considered the Veteran's assertion that wearing a flak jacket in service aggravated his low back. The February 2013 VA opinion and service department findings, however, show that the Veteran's pre-existing low back disability clearly and unmistakably was not aggravated by service. Accordingly, service connection for a lumbosacral spine disability is not warranted. ORDER Entitlement to service connection for a lumbosacral spine disability is denied. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs