Citation Nr: 1337343 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 07-36 031 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. WITNESSES AT HEARINGS ON APPEAL The Veteran and his friend ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran was in the National Guard from 1974 to 2004, during which time he served on active duty from January to August 2002. He had a period of active duty for training from June to October 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Chicago, Illinois. A hearing was held in October 2006 at the Chicago RO before a Decision Review Officer (DRO) and in September 2010 before a member of the Board. Transcripts are in the claims file. Because the Board member who conducted the 2010 hearing is no longer employed at the Board, the Veteran was given an opportunity to appear at another hearing, but he declined. In March 2011, the Board remanded the underlying issue for further evidentiary development. Specifically, the Board requested that the agency of original jurisdiction (AOJ) afford the Veteran a VA examination to determine the nature, extent, and etiology of any low back disability that he may have. The remand instructions specifically directed the VA examiner to provide an opinion as to whether there was clear and unmistakable evidence that the Veteran had a chronic back disability prior to his period of active duty, and if so, whether there was clear and unmistakable evidence that the disability underwent no permanent increase in severity during service. Pursuant to the March 2011 remand, a VA medical opinion was obtained in March 2011. Unfortunately, this opinion was found to be inadequate with respect to this issue. Therefore, in July 2012, the Board remanded the Veteran's claim to the AOJ so that an adequate medical opinion could be obtained and an additional VA medical opinion was obtained in August 2012. As additional questions remained regarding the claimed disorder, in an April 2013 letter, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). 38 U.S.C.A. § 7109; 38 C.F.R. § 20.901(a) (2012). The VHA requested the medical opinion from a VA Medical Center (VAMC) and obtained the opinion of a VA medical expert with respect to the questions raised in the Board's April 2013 request. The VHA opinion has since been associated with the Veteran's claims folder and date stamped as received in June 2013. FINDINGS OF FACT 1. The evidence does not clearly and unmistakably demonstrate that a pre-existing low back disability did not increase in severity beyond its natural progression during the Veteran's active duty service in 2002. 2. The back problems the Veteran experienced during active duty were likely degenerative changes affecting the low back, which changes have since been diagnosed as lumbar spine arthritis and disc disease. CONCLUSION OF LAW The Veteran has lumbar spine arthritis and lumbar degenerative disc disease (DDD) that are the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1111 (West 2002 & Supp. 2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). The term "active military, naval, or air service" includes "active duty, any period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty for training during which the individual concerned was disabled from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). The law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C.A. § 1111. The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b) (2013), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA General Counsel determined that, in order to rebut the presumption of soundness, VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it clearly and unmistakably was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant 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. Id. The Veteran contends that his lumbar spine disability was incurred during his period of active duty service. The Veteran's DD 214 reflects that he was ordered to active duty in support of Operation Enduring Freedom and deployed to Germany from January 2002 to August 2002. During his RO and Board hearings, the Veteran described his military duties while stationed in Germany, and testified that part of his duties included walking around and securing the outer perimeter of the base camp. According to the Veteran, he was performing this task one day when he slipped and fell down a steep hill, striking a tree. He claims to have experienced pain in his low back region since this incident. See October 2006 and September 2010 Hearing Transcripts. However, a review of the service treatment records reflect that the Veteran's low back condition may have pre-existed his period of active duty. Service treatment records pertaining to the Veteran's service with the Illinois Army National Guard, as well as his period of active service, are clear for any signs of a back condition from the time he first entered service until his December 2001 physical examination, at which time the Veteran reported a history of recurrent back pain. However, in the Physician's Summary and Elaboration of all Pertinent Data section, the treatment provider noted that the Veteran did not have a current back problem. The Veteran was seen at the military clinic again in March 2002, at which time he reported to have visited his local hospital for low back pain. The medical officer assessed the Veteran with mechanical low back pain. See March 2002 Individual Sick Slip. A July 2002 radiologic examination report reflects that the Veteran underwent a whole body bone scan, the results of which revealed a small focal abnormality of the right posterolateral L5 vertebra, "most likely representing degenerative changes". At an August 2002 medical examination, the clinical evaluation of the Veteran's spine was shown to be normal, but he did indicate a history of recurrent back pain, as well as a bone, joint, or other deformity. In the Examiner's Summary and Elaboration of All Pertinent Data section, it was noted that the Veteran had been experiencing low back pain prior to his deployment to Germany. A Consultation sheet dated on August 9, 2002, described the Veteran's low back pain as a pre-existing condition. Upon physical examination of the spine, the treatment provider noted no evidence of acute injury on X-rays or bone scan. In a June 2004 Pre-Deployment Health Assessment Questionnaire, the Veteran expressed concern regarding his low back pain. In addition, private medical records issued from the Cook County Hospital, and dated from August 1973 to January 2006, reflect that the Veteran was first seen for complaints of back pain in April 1999. Indeed, hospital records document the Veteran's treatment for a low back strain after he felt a sharp pain in his lower back the previous day while doing some heavy lifting. The post-service medical evidence of record reflects on-going complaints of, and treatment for low back pain. The Veteran underwent an X-ray of the lumbar spine in August 2004, the findings of which revealed minor degenerative changes along the right side of the spine at the L4-L5 level. During a June 2005 VA medical consultation, the Veteran reported an eight to nine-year history of low back pain that radiated into his right hip and through the right side of his trunk. Based on her evaluation of the Veteran as well as her review of the diagnostic studies of the lumbar spine, the treatment provider diagnosed the Veteran with sacroiliac joint dysfunction with evidence of sclerosis of the left iliac bone and degenerative arthritic disease of the lumbar spine at L4/5. The Veteran was afforded a VA examination in July 2005 at which time he underwent a magnetic resonance imaging (MRI) of his back, the results of which reportedly revealed multilevel degenerative disk disease in the lumbar spine that was mild in nature, with no central or foraminal stenosis of any significant level. Based on review of the claims file, as well as his evaluation of the Veteran, the VA examiner diagnosed the Veteran with having a mild chronic low back strain that was worse on the right side than the left side. According to the VA examiner, it is less likely than not that the Veteran's chronic low back strain was related to any injury that was incurred in service. The Veteran was afforded another VA examination in March 2011, at which time he provided his military history, and described the circumstances surrounding his in-service back injury. Based on his discussion with, and examination of the Veteran, as well as his review of the diagnostic records, the examiner diagnosed the Veteran with DDD of the lumbar spine with radiculopathy into the right hip, and determined there to be no evidence relating the Veteran's DDD to his active duty service. The Veteran underwent another VA orthopedic examination in August 2012. During this examination, the VA examiner interviewed the Veteran regarding his medical history and noted that the Veteran's back pain began in 2002. Based on his examination of the Veteran, the VA examiner diagnosed the Veteran with degenerative spine and disc disease and radiculopathy into the right lower extremity. According to the examiner, the Veteran's right lower radiculopathy involves the femoral nerves, to include the L2, L3 and L4 nerve roots, and is manifested by moderate ongoing pain, and mild paresthesia and/or dyesthesia and numbness. Based on his discussion with, and evaluation of, the Veteran, the VA examiner concluded that the Veteran's low back disability was less likely than not related to service and more likely related to the natural aging process. The VA examiner based his conclusion on his review of the claims file, the MRI findings, and the understanding that the Veteran's history was negative for any complaints of back pain prior to 2002. As the record was still unclear as to (1) whether the Veteran's current back disorder clearly and unmistakably existed prior to his period of active duty, and if so, (2) whether the pre-existing disability clearly and unmistakably was not aggravated during his period of active duty, see 38 U.S.C.A. § 1111, the Board referred this case to the VHA to obtain a medical opinion from an appropriate health care professional. The record reflects that the VHA sent the request out to the VAMC in Syracuse, New York, to obtain an opinion from a VA medical expert. The opinion was provided by VA physician, S.M., M.D., and date stamped as received in June 2013. According to Dr. M., there is clear evidence that the Veteran had a back condition prior to his active period of service dating from January 2002 to August 2002. In reaching this opinion, Dr. M. referenced service treatment records dated in 2001, which reflected the Veteran's complaints of recurrent back pain, as well as service treatment records dated in August 2002, wherein it was noted that the Veteran had been treated for pre-existing back pain in Germany. Dr. M. also referenced VA treatment records dated in June 2005 and July 2005, which reflected the Veteran's complaints of back pain for the past eight to nine years. Based on his review of the medical records, Dr. M. opined that the Veteran's pre-existing back disability did undergo a permanent increase in severity during service. Nevertheless, Dr. M. said, "I think this was due to natural progression of the degenerative condition." Based on the evidence described above, the Board finds that the presumption of soundness attaches and that it has not been rebutted. While it seems fairly clear that the Veteran had a back problem that pre-existed his period of active duty beginning in January 2002, it was not shown or noted on examination in December 2001. In reaching a conclusion that disability pre-existed active duty, Dr. M. relied on the August 2002 consultation report which indicated that the Veteran had a pre-existing low back disability and referenced the July 2002 bone scan results that revealed a "[s]mall focal abnormality of the right posterolateral L5 vertebra, most likely representing degenerative changes. . . ." Records also show complaints as early as 1999. Nevertheless, it is not so clear that a pre-existing disability was not aggravated during the period of active duty from January to August 2002. Even Dr. M. believed that there was a permanent increase in severity during the period in question, and when addressing the question of whether the increase was due to natural progression of the disease, Dr. M. merely stated that he thought it was. He pointed to no specific evidence to support his belief that the increase was due to natural progression. Moreover, the statement itself appeared somewhat uncertain. Dr. M. said only that he thought it was due to natural progression, which is hardly an unequivocal statement. Because the record reflects worsening and because of Dr. M.'s indefinite conclusion, the Board finds that the presumption of soundness has not been rebutted. In other words, it has not been clearly and unmistakably shown that there was no aggravation. When the presumption is not rebutted, the question is one of direct service connection. The entirety of the record strongly suggests that the Veteran indeed had problems with his back during the 2002 period of active duty, and as noted above, the bone scan revealed an abnormality during that time. Consequently, because the Veteran is presumed sound, and because the record reflects that current arthritis and DDD are likely linked to the problems he experienced in service, a grant of service connection on a direct basis is warranted. ORDER Service connection for lumbar arthritis and DDD of the lumbar spine is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs