Citation Nr: 1428158 Decision Date: 06/20/14 Archive Date: 06/26/14 DOCKET NO. 11-26 491A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for bilateral spondylosis of L5 with spondylolisthesis of L5-S1 (hereinafter "back disability"). REPRESENTATION Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Patricia Kingery, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from July 1980 to February 1981. This appeal comes to the Board of Veterans' Appeals (Board) from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Board remanded the appeal for further development in August 2013. Pursuant remand instructions, a VA addendum medical opinion was obtained in order to assist in determining the etiology of the Veteran's claimed back disability. As discussed below, the Board finds that the October 2013 VA addendum medical opinion was thorough and adequate and in compliance with the Board's remand instructions. Based on the above, the Board finds there has been substantial compliance with the prior Board remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders); D'Aries v. Peake, 22 Vet. App. 97 (2008). The case was returned to the Board for appellate consideration and is now ready for disposition. In reviewing this case, the Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. A back disorder was not "noted" at entry to active service in July 1980. 2. Bilateral spondylosis of L5 with spondylolisthesis of L5-S1 clearly and unmistakably existed prior to active service. 3. The preexisting bilateral spondylosis of L5 with spondylolisthesis of L5-S1 clearly and unmistakably was not aggravated by active service. CONCLUSION OF LAW The criteria for service connection for bilateral spondylosis of L5 with spondylolisthesis of L5-S1 have not been met. 38 U.S.C.A. §§ 1111, 5103(a), 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim and of the relative duties of VA and the claimant for procuring that evidence. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Here, the Veteran was provided notice in March 2009, prior to the initial adjudication of the claim in July 2009. The Veteran was notified of the evidence not of record that was necessary to substantiate the claims, VA and the Veteran's respective duties for obtaining evidence, and VA's practices in assigning disability evaluations and effective dates. Thus, the Board concludes that VA satisfied its duties to notify the Veteran. VA satisfied its duty to assist the Veteran in the development of the claim. First, VA satisfied its duty to seek, and assist in the procurement of, relevant records. 38 C.F.R. § 5103A; 38 C.F.R. § 3.159. VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include service treatment records, private treatment records, VA examination reports, and lay statements. Second, VA satisfied its duty to obtain a medical opinion when required. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The Veteran was afforded VA examinations in May 2009 (with a June 2009 addendum opinion) and September 2011; however, the proffered opinions were inadequate as the VA examiners did not use the appropriate evidentiary standard - clear and unmistakable evidence - when opining as to whether the back condition that was not noted at entrance into service 1) preexisted service and 2) was not aggravated by service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Pursuant to the Board's August 2013 remand, an addendum medical opinion was obtained in October 2013 to assist in determining the nature and etiology of the claimed back disability. The Board finds that the October 2013 VA addendum opinion (the report of which has been associated with the claims file) is thorough and adequate for the purpose of deciding the issue on appeal. The VA examiner had previously, at the September 2011 VA examination, interviewed and examined the Veteran, including eliciting a history from him, and conducted clinical testing. For the purposes of preparing the October 2013 addendum opinion, the VA examiner reviewed the claims file and provided opinions with regard to the etiology of the Veteran's back disability. The Veteran was offered the opportunity to testify before the Board, but declined. As VA satisfied its duties to notify and assist the Veteran, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). As discussed in detail below, the Board has found that the Veteran's back disability clearly and unmistakably preexisted active duty service, and clearly and unmistakably was not aggravated by service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. Accordingly, the direct service connection provisions of 38 C.F.R. § 3.303(a), (d) and presumptive service connection provisions of 38 C.F.R. § 3.303(b) and 38 C.F.R. §§ 3.307, 3.309 do not apply in this case. In the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b) (West 2002); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids him by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). A veteran will be 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C.A. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. 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. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F.3d at 1096. Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. 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. Id. Service Connection for Back Disability The Veteran essentially contends that the current back disability did not preexist service and rather was incurred during service. The Veteran further contends that, even if the back disability did preexist service, it was clearly aggravated by service. In a March 2009 written statement, the Veteran reported that he began noticing pain in his lower spinal area during service that continued to worsen until he was discharged from service. In an April 2010 written statement, the Veteran stated that some physicians believe that repetitive trauma, such as from certain sports, may either cause or contribute to the development of spondylolysis and that his spinal condition is especially common in individuals who over train in various activities. In an October 2010 written statement, the Veteran stated that his back began hurting following an extended night maneuver tactical training exercise during service. In a February 2011 written statement, the Veteran asserted that a private doctor had informed him it was very unlikely that a person with a spinal condition such as his would have been able to sustain basic training. In a June 2011 written statement, the Veteran contended that he sustained an in-service back injury four months into active service. In an October 2011 substantive appeal (VA Form 9), through the representative, the Veteran contended that, while it is clear that the back disability was incurred as a result of service, even if it did preexist, the back disability was clearly aggravated by service as he did not have active symptoms until several months into service. The Veteran further contended that, while spondylolisthesis can be congenital in nature, it can also be caused by arthritis, trauma (acute or repetitive), or disease. In a December 2012 written statement, through the representative, the Veteran contended that he had no preexisting back disability at entrance into service and that, a few months later, his low back condition was so severe that he was discharged from service. The Veteran contended that, even if he had a preexisting back disability at service enlistment, it was clearly aggravated by service. See also May 2012 and January 2014 written statements. Through the representative, the Veteran has repeatedly emphasized that he was presumed sound with regard to his back at service entrance. See id. Initially, the Board finds that the evidence demonstrates that the Veteran did not engage in combat with the enemy during active service. The DD Form 214 notes that the Veteran served as a Cavalry Scout and did not receive any medals associated with combat. The Veteran has also not contended that he engaged in combat with the enemy during service. The Board finds that the back disability clearly and unmistakably existed prior to active service. At the July 1980 service entrance physical, the Veteran's spine was found to be clinically normal and the Veteran denied any recurrent back pain on an associated report of medical history; therefore, a preexisting back disability was not "noted" at service entrance. Service treatment records note that in December 1980 the Veteran reported that he had been unable to play high school football due to back pain. The service treatment records assessed that the lower back pain was an existed prior to service (EPTS) condition and that the current etiology was felt to be muscular. A January 1981 medical board proceeding reflects the opinion that the Veteran was medically unfit for duty due to a deformity of the spine that was not incurred in the line of duty, but rather existed prior to service (EPTS). The report notes that the Veteran was unable to play high school football prior to service due to back pain and that the Veteran had intermittent back pain since high school. X-rays of the spine revealed bilateral spondylolysis of L5 and 1+ spondylolisthesis of L5 on S1. The medical board recommended that the Veteran be separated from service due to an EPTS condition that was not aggravated by active duty. In a February 1981 request for expeditious discharge based on physical disability, the Veteran endorsed that, should the application be approved, he would be discharged from service by reason of a EPTS physical disability. In a November 2011 private medical opinion, Dr. A.D., the Veteran's doctor since before active service, noted that there was no treatment for spinal deformity or spondylolysis before 1980. Dr. A.D. noted that he currently treats the Veteran who continues to not have any spinal issues requiring therapy. In the October 2013 VA medical opinion, the VA examiner, after a complete review of the claims file, opined that the Veteran's back disability, to include bilateral spondylosis of L5 with spondylolisthesis, clearly and unmistakably preexisted his entrance into military service, including as documented by the medical board during active duty in 1981. The VA examiner noted that the radiologic evidence supports the congenital and nontraumatic nature of the Veteran's back disability. The VA examiner acknowledged the statement of the Veteran's private doctor that he had never treated the Veteran for spinal deformity prior the service, but indicated that this was not surprising because grade 1 anterolisthesis and spondylolysis do not cause any visible spinal deformity. The VA examiner further opined that it was more likely than not that the Veteran's private doctor had missed the diagnosis of grade 1 anterolisthesis when the Veteran was only a teenager. After a review of the claims file, the VA examiner opined that the back disability clearly and unmistakably preexisted active service. The October 2013 VA examiner summarized the pertinent pre-service history, in-service history, and post-service history and specifically discussed the November 2011 private opinion from Dr. A.D. The October 2013 VA opinion is competent and probative medical evidence because it is factually accurate, the VA examiner was informed of the relevant evidence in this case, reviewed the claims file, relied on accurate facts, and gave a fully articulated opinion that is supported by sound reasoning. The Veteran, through the representative, has argued that, as a preexisting back disability was not "noted" at entrance into service, he is covered by the presumption of soundness and this presumption can only now be refuted by records generated prior to service that indicate the disorder existed. See December 2012, and January 2014 written statements. The representative contended that the October 2013 VA examiner's opinion was therefore based on an inaccurate factual premise as there was no evidence from before the Veteran's active service of this disability. See January 2014 written statement. The evidentiary standard and request for limitation of evidence laid out by the Veteran's representative is not the standard for rebutting the presumption of soundness established by VA law and regulations. On questions of aggravation, all evidence is to be considered by the VA adjudicator. 38 U.S.C.A. § 7104(a) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 1154(a) (Secretary to provide regulatory provisions requiring due consideration of "all pertinent medical and lay evidence"); 38 C.F.R. § 3.304(b)(2) (history of pre-service existence of disability to be based on a careful correlation of "all material facts"; clinical data, official records prior to, during, and after service, "together with all other lay and medical evidence . . . will be taken into full account"). With regard to the evidentiary standard, in order to rebut the presumption of soundness for defects, infirmities, or disorders not "noted" at entrance into service, VA must show, by clear and unmistakable evidence, both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304; see also Wagner, 370 F.3d 1089. The Court has held that post-service medical judgment alone may be used to rebut the presumption of soundness as long as the evidence is clear and unmistakable. See Jordan v. Principi, 16 Vet. App. 335 (2002), withdrawn, 2002 WL 31445159 (Vet. App. Nov. 1, 2002); but see Jordan v. Principi, 17 Vet. App. 261, 280 (2003) (medical judgment may play a conclusive role in making presumption of soundness determination). In this case, the Board finds that the post-service medical evidence supports a finding that the Veteran's back disability clearly and unmistakably preexisted service. As to the question of whether the preexisting back disability clearly and unmistakably was not aggravated by service, the Veteran, as noted above, has contended that, even if the current back disability preexisted service entrance, it was aggravated by service. Despite these post-service contentions, the Board finds that the evidence or record demonstrates that the preexisting back disability clearly and unmistakably was not aggravated by service, that is, did not permanently worsen "in" or "during" service. The October 2013 VA examiner opined that the Veteran's preexisting back disability, including bilateral spondylosis of l5 with spondylolisthesis of L5-S1, clearly and unmistakably was not aggravated by service because there was no evidence that the Veteran's back disability has significantly changed in the last 30 years since entrance into military service, the Veteran was in service for a short period from July 1980 to February 1981, and the radiological evidence reflects a stable condition of the back that is more likely than not congenital. In a January 2014 written statement, through the representative, the Veteran contended that the October 2013 VA examiner's rationale that the Veteran's back disability has not significantly changed in the 30 years since his entrance into service was erroneous because the Veteran's seven months of active service was plenty of time for an injury or multiple injuries to occur and the Veteran was removed from active service because of the low back disability was so severe. Lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some medical disorders require specialized training for a determination as to diagnosis and causation; therefore, such issues are not susceptible of lay opinions on etiology, and a veteran's statements therein cannot be accepted as competent medical evidence. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (stating that it "is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); See Jandreau, 492 F.3d at 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). The Board finds that, as a lay person, while the Veteran is competent to reports symptoms of the back that he experiences at any time, neither the Veteran nor the representative has been shown to have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding whether the preexisting bilateral spondylosis of L5 with spondylolisthesis of L5-S1 was aggravated by active service. See Kahana v. Shinseki, 24 Vet. App. 428, 437 (2011) (recognizing ACL injury is a medically complex disorder that required a medical opinion to diagnose and to relate to service). The Veteran's back disability is also a medically complex disease process because of its multiple etiologies, requires specialized testing required to diagnose, and manifest symptomatology that overlaps with other disorders. Woehlaert, 21 Vet. App. at 462 (holding that rheumatic fever is not a condition capable of lay diagnosis). Whether the Veteran's preexisting back disability was aggravated by service is a complex medical etiological question involving internal and unseen system processes unobservable by the Veteran. As such, the Board finds that the Veteran's lay statements are not competent evidence on the question of aggravation. In finding no aggravation during active service, the Board places significant probative value on the October 2013 VA medical opinion undertaken to specifically address the question of aggravation. After a review of the claims file, the VA examiner opined that the back disability was clearly and unmistakably not aggravated by active service. The October 2013 VA examiner summarized the pertinent pre-service history, in-service history, and post-service history. The October 2013 VA opinion is competent and probative medical evidence because it is factually accurate, the VA examiner was informed of the relevant evidence in this case, reviewed the claims file, relied on accurate facts, and gave a fully articulated opinion that is supported by sound reasoning. Based on the above, the Board finds that the record contains clear and unmistakable evidence showing that the Veteran had a preexisting back disability prior to active service which clearly and unmistakably was not aggravated by active service. Accordingly, service connection for bilateral spondylosis of L5 with spondylolisthesis of L5-S1 is not warranted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304. ORDER Service connection for bilateral spondylosis of L5 with spondylolisthesis of L5-S1 is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs