Citation Nr: 1602007 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 12-11 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Whether new and material evidence has been presented to reopen a claim of service connection for a low back disability, and if so, whether service connection is warranted. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Honan, Associate Counsel INTRODUCTION The Veteran had active service from June 1994 to October 1994, from April 1995 to October 1995, from August 1996 to December 1996, from May 1997 to September 1997, from December 1997 to February 1998, from February 1998 to January 1999, and from December 2003 to March 2005, including service in Iraq. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which reopened and denied the claim. In November 2015, the Veteran appeared at a hearing before the undersigned. A transcript of the hearing is of record. The Veteran's service connection claim for a low back disability was originally denied in a December 2005 rating decision. The Veteran was properly notified of the outcome of the decision, and he did not file a notice of disagreement within one year, nor was any additional evidence received within one year. See 38 C.F.R. § 3.156(b) (2015); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2014); 38 C.F.R. § 20.1105 (2015). The Board agrees with the RO's June 2010 decision to reopen the claim based on the new and material evidence of record - including private treatment records and a VA examination report - received since the last final rating decision. As the RO has already reopened the claim and the Board agrees with its basis for doing so, the Board will not duplicate the RO's analysis in this decision. FINDING OF FACT The evidence shows that the Veteran's low back disability was aggravated during his deployment to Iraq. CONCLUSION OF LAW The criteria for service connection for lumbar spine degenerative joint disease, status post hemilaminectomy, medial fasciectomy, and discection of L4-L5 interspace have been met. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), 3.306(a) (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). If a condition is noted at the time of service entrance, a veteran is not entitled to the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Under such circumstances, service connection is warranted if the preexisting disorder was aggravated by a veteran's active service. A preexisting injury or disease will be presumed 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 was due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). This presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. Smith v. Shinseki, 24 Vet. App. 40, 47-48 (2010). A veteran has the burden of showing that there was an increase in disability. See Wagner, 370 F.3d at 1096. Aggravation of a preexisting injury may not be conceded where the disability underwent no increase in severity during service, on the basis of all the medical evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, absent or poorly functioning parts or organs, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306(b)(1). Similarly, temporary or intermittent flare-ups of the preexisting disorder during service are not sufficient to be considered aggravation unless the underlying disability (as contrasted to symptoms) has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991). If the preexisting disorder underwent an increase in severity during service, clear and unmistakable (obvious or manifest) evidence is required to rebut the presumption of aggravation. Such evidence includes medical facts and principles, which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306(b). In this case, the Veteran has a current diagnosis of lumbar spine degenerative joint disease, status post hemilaminectomy, medial fasciectomy, and discection of L4-L5 interspace. See May 2010 VA examination report. The Veteran's service treatment records reflect that, at the time he was mobilized for deployment in December 2003, a flight surgeon noted a disqualifying condition of acute spinal dysfunction that had first been discovered in February 2003. The flight surgeon recommended further evaluation before the Veteran deployed due to a concern that he had a potentially disabling back condition. The Veteran was nevertheless deployed to Iraq despite the concerns expressed in the flight surgeon's report. The Veteran described three aggravations of his low back condition that occurred during his service in Iraq from February 2004 to August 2004, each with increasing severity, until his back pain became so severe that he was having difficulty tying his shoes or performing any bending or twisting activity. See May 2010 VA examination report; see also November 2015 hearing transcript. After the third and most severe episode of back aggravation, the Veteran was sent to Germany, where a neurosurgeon evaluated him and informed him that he had a ruptured lumbar disc. Id. The Veteran was then sent to Fort Polk for further evaluation, and finally to Fort Sam Houston for spinal surgery. Id. The two VA medical opinions of record only address the issue of whether the Veteran's low back disability was caused by active service; they do not address the question of aggravation. At the time the Veteran was mobilized for deployment, a flight surgeon's evaluation report identified a disqualifying condition of acute spinal dysfunction that had first been discovered in February 2003, and recommended further evaluation before the Veteran deployed. As such, the Veteran had a preexisting back condition noted at the time of his reentry into active service for deployment in December 2003. However, the decision was made to deploy this Veteran despite the flight surgeon's concerns, and the Veteran is entitled to the presumption of aggravation for his preexisting back condition. The medical records reflect that this condition clearly underwent an increase in severity during the Veteran's deployment, as demonstrated by his three aggravating episodes culminating in his early departure from Iraq due to his back condition, the neurosurgeon's diagnosis of a ruptured lumbar disc, and the Veteran's spinal operation performed upon his return to the United States. The presumption of aggravation is not rebutted in this case because there is no clear and unmistakable evidence that the increase in severity of the back condition was due to the natural progress of the disease. Indeed, the evidence points to the disability being aggravated by the circumstances and duties of the Veteran's deployment. The presumption of aggravation only requires evidence of an actual worsening of a preexisting condition during service; it does not require direct evidence of nexus, that is, that the worsening was caused by service. See Smith, 24 Vet. App. at 47-48. As such, further medical opinion regarding this issue is unnecessary. The medical evidence shows that the Veteran's preexisting back condition was permanently worsened during his deployment to Iraq, and the presumption of aggravation has not been rebutted. Therefore, service connection is warranted for the Veteran's low back disability on the basis of aggravation. ORDER Service connection for lumbar spine degenerative joint disease, status post hemilaminectomy, medial fasciectomy, and discection of L4-L5 interspace is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs