Citation Nr: 1752761 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 04-24 703 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for a low back disability, to include spina bifida. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Scarduzio, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1967 to February 1970, to include service in the Republic of Vietnam. His awards and decorations include the Combat Action Ribbon, among others. This matter comes before the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction now resides with the Detroit, Michigan RO. The Veteran's appeal was originally denied by the Board in a March 2006 decision. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court), which issued a Memorandum Decision in September 2008 vacating and remanding the Board's denial. The matter returned to the Board in May 2010, April 2015, and May 2016, where the claim was remanded each time for additional development. It has since been returned to the Board for further appellate review. FINDING OF FACT The Veteran's low back disability was not caused or aggravated by his military service. CONCLUSION OF LAW The criteria for establishing service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may 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). For certain chronic diseases, such as arthritis of the lumbar spine, which develop to a compensable degree within one year after discharge from service, service connection may also be presumed even though there is no evidence of such disease during the period of service. This presumption is rebuttable by probative evidence to the contrary. 38 U.S.C. §§ 1110, 1112, 1113; 38 C.F.R. 3.307, 3.309. In addition, a veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. 38 U.S.C. §§ 1111, 1132. Only such conditions as are recorded in examination reports are to be considered as noted. A veteran's reported history of the pre-service existence of a disease or injury does not constitute notation of such disease or injury, but is considered with all other evidence in determining if the disease or injury preexisted service. 38 U.S.C. §§ 1111, 1137; see Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); 38 C.F.R. § 3.304(b). A preexisting condition will be considered to have been aggravated by military service where there is an increase in disability during that service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). If a disability is not "noted" on entering service, there must be clear and unmistakable evidence showing that the disorder preexisted service and was not aggravated by service in order to rebut the presumption of soundness. A lack of aggravation may be shown 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, 370 F.3d at 1096. If the government fails to rebut the presumption, the claim is one for service connection, not aggravation. Id. Aggravation 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 C.F.R. § 3.306(b). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The Veteran contends that a low back disability was incurred in or aggravated by his active service. For the reasons that follow, the Board finds that the Veteran's disability did not manifest during active service and was not a result of, or was otherwise aggravated by, active service. As such, service connection is not warranted. The record clearly shows that the Veteran has a current low back disability. VA examinations during the course of the appeal have noted diagnosis of degenerative arthritis of the spine, spondylolisthesis, and spina bifida. It is the Veteran's assertion that these low back disabilities were caused or aggravated by two specific in-service injuries: a 1967 incident where he was thrown from a truck in basic training, and a 1969 incident where the vehicle he was driving overturned. A review of the Veteran's service treatment records does not note the Veteran's asserted truck accident in basic training or any complaints or treatment of back pain at that time. While service treatment records dated November 1968 notes back strain due to a case of C-rations falling on him, this injury affected the Veteran's dorsal (thoracic) spine. A May 1969 service treatment record notes the Veteran as having had "numerous complaints of aches and pains" in his bones and joints. A physical examination in February 1970 upon separation from service, however, did not note any back problems. Regarding the Veteran's assertion that he injured his back in a 1969 vehicle roll-over accident, although service treatment records are absent of any notation of a vehicle accident or injuries sustained, the Veteran has consistently and credibly asserted that the accident took place but that was unable to seek treatment or an evaluation. Moreover, in support of his claim, the Veteran submitted a November 2004 statement from his former commanding officer, attesting to the fact that the Veteran's claimed accident did indeed take place in March 1969. The Board notes that while the statement contains a report of injuries, no specific injuries - including those of the Veteran - are indicated. The record is negative for any further treatment in the years immediately following the Veteran's separation from service. While the Veteran has reported, upon VA examination, a 1971 diagnosis of degenerative disc disease and spina bifida, the Board notes that the record is absent this evidence. Thus, as arthritis is not shown to be present to any compensable degree during service or in the year following separation from service, in-service incurrence cannot be presumed. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). When a disease is first diagnosed after service but not within the applicable presumptive period, service connection may nonetheless be established by evidence demonstrating that the disease was in fact incurred in service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). The Board will therefore turn to address the entitlement to service connection is warranted on a direct service connection basis. The record reflects that the Veteran served time in prison from 1986 to 2011. During his incarceration, a 1992 X-ray indicated spondylolisthesis of the L5-S1. A 1998 X-ray noted spina bifida of the L5, and the aforementioned spondylolisthesis. A 2001 X-ray also showed bilateral spondylolisthesis at the L5 and advanced degenerative disc changes at the L5-S1. The above diagnoses were further confirmed by a 2009 MRI. As noted above, the Court vacated the Board's March 2006 denial of the issue and remanded the Veteran's claim to afford him a VA examination. The examination was provided in January 2012. The Veteran reported being diagnosed in 1971 with spina bifida, spondylosis, and bilateral spondylolisthesis subsequent to a work injury. The examiner diagnosed spina bifida and lumbar degenerative disc disease, and an X-ray report confirmed spondylolisthesis. After examination of the Veteran and review of the claims file, the examiner opined that the Veteran's spondylolisthesis and spina bifida were less likely than not incurred in or caused by the claimed in-service injury. The examiner explained that, per medical literature, spina bifida at the L5 level is a developmentally incomplete posterior fusion of the spinous process, which could not be caused by military service since it existed since the Veteran's birth. As to the Veteran's spondylolisthesis, the examiner explained that, in the case of congenital narrowing caused by spina bifida, it was not uncommon to see the secondary development of spondylolisthesis. As the Veteran's separation examination was normal, the examiner therefore opined that the spondylolisthesis was caused by the spina bifida and not related to his in-service complaints of musculoskeletal pain. As the Veteran asserted the additional theory that he had a preexisting low back disability prior to service - specifically, spina bifida - that was aggravated during service, the Veteran's claim was remanded again by the Board in April 2015 to obtain additional treatment records and to afford the Veteran an additional VA examination to address this contention. The examination was conducted in June 2015. After review of the claims file and physical examination VA examination, the examiner diagnosed degenerative arthritis and spondylolisthesis with spina bifida. As to spina bifida and whether the disability was aggravated by the Veteran's active service, the examiner opined that, since spina bifida was congenital in nature and there was a lack of treatment for spina bifida either prior to the military, during his active service, or within a reasonable time thereafter, it was not likely that there was any permanent worsening of the congenital back disability by his active service. While various X-ray reports over the years note spina bifida, there was no indication in these reports that spina bifida worsened or changed. The June 2015 examiner was also asked to offer opinions as to the etiology of Veteran's other diagnosed low back disabilities. As to whether the Veteran's arthritis had its direct onset during service, the examiner opined that, since the Veteran had no complications at discharge, and X-ray findings did not note degenerative changes until over thirty years post-service, it was less likely as not that a back disability had its onset during service or within one year after discharge. The examiner noted that the Veteran's age and work and social histories would more than likely cause his degenerative arthritis of the lower back. Regarding the Veteran's spondylolisthesis and spondylolysis, the examiner was unable to determine without resorting to mere speculation whether these disabilities existed prior to military service or were incurred therein, explaining that the Veteran was involved in physical activities prior to service that could increase the risk for these disabilities, as could the Veteran's in-service vehicular roll-over and strenuous physical activities. As noted above, if a disability is not "noted" on entering service, there must be clear and unmistakable evidence showing that the disorder preexisted service and was not aggravated by service in order to rebut the presumption of soundness. A lack of aggravation may be shown 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, 370 F.3d at 1096. In a May 2016 decision, the Board found that the June 2015 VA examiner did not provide an adequate opinion under the appropriate "clear and unmistakable" standard. Thus, the Veteran's claim was remanded once again in order to obtain addendum opinions as to his diagnosed low back disabilities, which were provided in August 2017. After review of the Veteran's claims file, the VA examiner opined that spina bifida did not clearly and unmistakably exist prior to service. The examiner noted that MRI results dated December 2015 confirmed that the Veteran did not, in fact, have spina bifida, explaining that an MRI is more specific than X-ray findings to diagnose such a disability, and that no back complaints were reported on the Veteran's enlistment examination or during his period of active service. As such, there was no preexisting disability that could have been aggravated by service. As to the Veteran's remaining low back disabilities, the examiner opined that it was less likely as not that degenerative arthritis or spondylolysis had their onset in service or within the first year after separation since review of the Veteran's service treatment records did not reveal any evidence of a chronic back condition, nor was there any other reasonable evidence that the Veteran's back disabilities had their onset during service or, in the case of arthritis, within the first post-separation year. Based on the foregoing, and as there is no medical evidence in significant conflict with the combined opinions of the VA examiners, the Board finds the most probative medical evidence is against the claim. The Board acknowledges that a veteran is competent to describe symptoms that he is able to perceive through the use of his senses and to give evidence about what he has experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). In that regard, the Veteran has reported experiencing low back pain since service after two vehicle accidents, and that these accidents either caused or aggravated his low back disability. However, the Veteran is not shown to possess any medical expertise; thus, his opinion as to the etiology of his low back disability is not competent medical evidence. Moreover, whether the symptoms the Veteran experienced in service or following service are in any way related to his current low back disability requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In any event, the Board finds the medical opinions more probative than the Veteran's lay statements as the opinions were offered by medical professionals after examination of the Veteran and consideration of the history of the low back disability and, as a whole, are supported by clear rationale. In summary, the preponderance of the evidence is against a finding that the Veteran's low back disability was caused or aggravated by service. In making this determination the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim that doctrine is not for application and service connection must be denied. ORDER Entitlement to service connection for a low back disability is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs