Citation Nr: 1634369 Decision Date: 09/01/16 Archive Date: 09/09/16 DOCKET NO. 10-25 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from November 2001 to July 2002 and from July 2006 to October 2007. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. A lumbar spine disability was not manifest during the Veteran's first period of service nor was arthritis manifest to a compensable degree within one year of separation from this period of service. 2. A lumbar spine disability unequivocally preexisted the Veteran's second period of service and unequivocally did not increase in severity during this period of service. No superimposed injury is shown to have occurred during this service. CONCLUSION OF LAW A lumbar spine disability was not incurred in or aggravated during service and arthritis may not be presumed to have been so incurred therein. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met with regard to the issues decided herein. There is no issue as to providing an appropriate application or the completeness of the application. By correspondence dated in November 2007, VA advised the Veteran of the information and evidence needed to substantiate the claim. The letter provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The Veteran was also provided information regarding the assignment of disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains service treatment records, VA medical records/VA examinations, and identified private medical records. No additional pertinent records are shown to be available, and the appellant does not argue otherwise. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). ANALYSIS The Veteran appeals the denial of service connection for a lumbar spine disability. The Veteran asserts that he was in good health without any back trouble when he entered service and that he was treated regularly during service. According to the Veteran, he hurt his back loading a conex in Iraq. He essentially maintains that his back problems continued since that time. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Arthritis, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. After weighing the evidence, the Board concludes that the most probative evidence is against the claim. To that end, service treatment records for the Veteran's first period of service are negative for any complaints, treatment and/or diagnoses for the lumbar spine. There is also no evidence that arthritis was compensably disabling within a year of separation from the Veteran's first period of service. The Board has reviewed the service examination reports, VA medical records, the VA examinations and private treatment records of file. These records do not include any opinion linking the Veteran's lumbar spine disability to his first period of service. Rather, the record discloses objective evidence of back problems due to an automobile accident that happened months after his first period of service. There is no competent evidence or opinion that the Veteran's lumbar spine disability is related to his first period of military service and the Veteran has not presented any such opinion. The Board also finds against a showing that the Veteran's current lumbar spine disability is attributable to his second period of service. To that end, treatment records between the Veteran's first and second period of service show that in November 2002 he injured his back in an automobile accident. In October 2003, the Veteran reported that he was taking medication for his back pain from the "wreck." The Veteran entered his second period of service in July 2006. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active 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 to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). Aggravation by service is presumed where there is an increase in disability during service, unless there is a specific finding that the increase is due to the natural progress of the disease. In November 2002, it was noted that the Veteran had back problems following an automobile accident. In October 2003, the Veteran reported that he was taking medication for his back because of the accident. Based upon the medical evidence and the Veteran's lay statements, the Board concludes that there is clear and unmistakable evidence that a back disability pre-existed his second period of service. The Board also concludes that there is clear and unmistakable evidence that the pre-existing back disability was not aggravated during service. In this regard, during the September 2007 separation examination for the Veteran's second period of service, the Veteran reported back pain from loading a conex in Iraq. The December 2015 VA examiner, however, opined that the Veteran's lumbar spine disability, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The VA examiner noted that initial medical review (before service) indicates that the Veteran stated he had back problems. The VA examiner further stated that service treatment records review show no objective evidence to support aggravation or worsening beyond natural progression by military service, no seeking of treatment, or abnormal findings on examination. It was noted that in the separation examination in September 2007 that Veteran stated a previous history of back pain and that the examination was normal. According to a preponderance of medical literature, the VA examiner stated that aging and previous trauma predispose to degenerative changes. Therefore, she found that the pre-existing back injury with findings of mild degenerative disc disease at the present time was not permanently worsened beyond natural progression by military service. In December 2015, another VA examiner opined that the Veteran's lumbar spine disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She found that there is no preponderance of the objective medical evidence that the Veteran developed a chronic diagnosable lumbar spine condition during either of his two active tours of duty currently related to his current lumbar degenerative joint disease. In light of the above, the Board finds that the preexisting lumbar spine disability was not aggravated by the Veteran's second period of service. Although the Veteran complained of back pain during his separation examination for his second period of service; the service treatment records do not indicate any increase in the severity of the Veteran's lumbar spine disability. The Board acknowledges the lay statements of record. The Board finds that the Veteran's lay statements are competent and credible lay statements as to the existence of his lumbar spine disability; this is not probative, however, of the lone issue for resolution - whether the condition was aggravated by incidents of service. In this instance, however, the progression of a complicated orthopedic disability of the lumbar spine due to service activities is not capable of lay observation. See Jandreau v. Nicholson, 492 F.3d (Fed. Cir. 2007). Thus, the lay opinions are not assigned any weight. The determination of whether a preexisting disability was aggravated by service is a question of fact. Doran v. Brown, 6 Vet App. 283, 286 (1994). The Board has reviewed the service examination reports, to include the final separation examination, VA medical records, the VA examinations and private treatment records of file. The evidence establishes that there was no increase in severity during service. Here, the Board has afforded greater probative value to the opinions of the VA examiners. The opinions were rendered by medical professionals with the expertise to opine on the matter at issue in this case. In addition, the examiners addressed the Veteran's contentions and based their opinions following a review of the claims folder. There are no opinions to the contrary. In sum, the most probative evidence of record is against finding that the Veteran's lumbar spine disability was caused and/or aggravated by any period of service. For the reasons stated above, service connection is denied. The Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C.A. § 5107(b). ORDER Entitlement to service connection for a lumbar spine disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs