Citation Nr: 1341352 Decision Date: 12/16/13 Archive Date: 12/31/13 DOCKET NO. 11-23 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for lumbar spine advanced degenerative spondylosis with prominent scoliosis convex to the left (claimed as back problems). REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Jose, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2011 rating decision in which the RO denied the Veteran's claim for service connection for back problems. In May 2011, the Veteran filed a notice of disagreement (NOD) and requested a videoconference hearing. A statement of the case (SOC) was issued in July 2011. In August 2011, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) and requested a hearing at the local VA office. In January 2012, the Veteran and his wife testified at a DRO hearing; a transcript of that hearing is of record. FINDINGS OF FACT 1. Pre-existing low back problems were noted on the Veteran's entrance examination report. 2. Service treatment records show that the Veteran was seen on numerous occasions for low back pain and low back strain suggesting an increase in disability and superimposed low back injuries during service; the presumption of aggravation of a pre-existing low back condition attaches. 3. There is no clear and unmistakable medical evidence that rebuts the presumption of aggravation of a pre-existing low back condition. 4. Resolving reasonable doubt in favor of the Veteran, his current low back disability is a continuing disease process of symptomatology aggravated in service. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar spine advanced degenerative spondylosis with prominent scoliosis convex to the left have been met. 38 U.S.C.A. §§ 1110, 1153, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2013)) redefined VA's duties to notify and assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). In light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. Analysis 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. 38 C.F.R. § 3.304(b)(2013). A veteran who served during a period of war, as the Veteran here, is presumed to be in sound condition when he entered into military service except for conditions noted on entrance medical examination. 38 U.S.C.A. §§ 1111, 1132 (West 2002). The January 1966 Report of Medical History shows that the Veteran reported that he could not bend because of his lower back. He reported that he injured his lower back in October 1965 while lifting weights. He received treatment from Dr. E.K. The examining physician noted that the Veteran complained of right thigh pain and he indicated that the Veteran had a history of low back injury with present symptoms of nerve root irritation. On the January 1966 Report of Medical Examination, it was noted that further evaluation of the low back was warranted. Additional notations entered in May 1966 note that the Veteran had previously sustained a low back strain but he had had no problems since then. He was found fit but it was noted that the Veteran continued to complain of low back pain. The Veteran entered active duty in May 1966. The Board finds that a pre-existing low back condition was noted on the Veteran's entrance examination. As such, the Veteran cannot bring a claim for service connection for incurrence of a low back disability, but he may bring a claim for service-connected aggravation of that disorder. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Title 38 U.S.C.A. § 1153 applies and the burden falls on the Veteran to establish that the disorder underwent an increase in severity in service. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by 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 (West 2002); 38 C.F.R. § 3.306 (2013). 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 (West 2002; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). In order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). While the Veteran's separation examination reflected no back complaints, the service treatment records show that the Veteran injured and sought treatment for his lower back pain on multiple occasions throughout his service. Furthermore, his service treatment records note that he developed "persistent, unremitting pain in [his] mid low-back (L4-L3) aggravated by activity." The service treatment records suggest that the Veteran's pre-existing low back condition underwent an increase in disability and was subject to superimposed low back injuries during service. Thus, the presumption of aggravation of a pre-existing low back condition attaches and can only be rebutted by clear and unmistakable evidence that the back disability was not aggravated beyond the natural progress of the disorder. In a January 2011 VA examination report, the VA examiner found that "[t]he Veteran's low back problem can only be speculated as to whether or not it was aggravated by his military service beyond normal progression." The examiner maintained that the Veteran had a pre-existing low back condition in 1966 prior to service that was well documented. The examiner noted that the Veteran additionally had no issues with his back on separation. The examiner observed that the Veteran was seen numerous times for low back strains in service, but there was a lack of any medical evidence since service to show that the back was permanently aggravated. The examiner further observed that the Veteran's current x-rays showed advanced degenerative spondylosis with prominent scoliosis convex to the left and that there were no private records or chiropractice notes submitted to review since service. The examiner noted that in addition, the Veteran previously weight lifted competitively from 1965 to 1990 with heavy weights. He was also a professional Omaha area firefighter for over 30 years. The examiner maintained that that job was highly physically demanding and strenuous with heavy lifting and bending. Therefore, the examiner maintained that she "[could] only speculate any aggravation issue of his back due to military service be on normal progression." After receiving private treatment records from the Veteran's chiropractor, the RO requested an addendum opinion by the January 2011 VA examiner. In March 2012, the same examiner noted that unfortunately there was a large time gap of a lack of any records from discharge in 1970 until 1998 which was a time gap of 28 years of unknown medical care or issues. Additionally, the Veteran was previously employed as a firefighter and in construction and he had a history of weight lifting. The examiner noted that therefore, given his prior occupations, he had likely repeated lifting, twisting, bending and carrying of heavy objects since service. The examiner maintained that with a large time gap of 28 years since service, prior extremely physical occupations, and "vague current chiropractic c file records starting in 1998," the Veteran's back condition was "less likely than not aggravated" by events in service due to all the above conditions and highly physically laborious jobs since the service. The Board finds that the VA opinion rendered in January 2011 does not constitute clear and unmistakable evidence that the Veteran's pre-existing low back condition was not aggravated during service. The VA examiner essentially found that the aggravation issue could not be decided without a resort to speculation due to a lack of medical evidence. Thus, it is not undebatable that the Veteran's pre-existing low back condition was not aggravated during service. The supplemental opinion provided in March 2012 in which the VA examiner found that the Veteran's back condition was "less likely than not aggravated" by events in service does not persuade the Board otherwise. These opinions do not rise to the highest standard of clear and unmistakable evidence. Accordingly, the Board finds that the record shows in-service aggravation of a pre-existing low back condition. VA and private treatment records clearly show the presence of a current low back disability. Although there is no medical evidence of any post-service signs or symptoms of lower back pain for 28 years, the Veteran has presented competent lay evidence, in the form of his own statements and lay statements from his wife (who is a nurse), that he has experienced increased back pain during and after service. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board finds that this lay evidence is credible. Beginning in 1998 and continuing to date, medical records show treatment for low back problems. The Board resolves any reasonable doubt in favor of the Veteran and finds that the lay and medical evidence of record credibly shows that the current low back disability is a continuing disease process of symptomatology aggravated in service. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). As there is evidence of in-service aggravation of a pre-existing low back condition, and credible evidence of continued manifestations of the low back condition post-service, service connection for a low back disability is warranted. ORDER Service connection for lumbar spine advanced degenerative spondylosis with prominent scoliosis convex to the left is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs