Citation Nr: 1752931	
Decision Date: 11/17/17    Archive Date: 11/22/17

DOCKET NO. 14-08 227	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for a back condition.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel







INTRODUCTION

The Veteran served on active duty from January 1965 to January 1967, including service as a supply handler.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA).

The Board has modified the Veteran's claim to encompass all disorders raised by the record. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (stating that, when determining the scope of a claim, the Board must consider "the [Veteran's] description of the claim; the symptoms the [Veteran] describes; and the information the [Veteran] submits or that the Secretary obtains in support of that claim").


FINDING OF FACT

The competent and credible evidence is in relative equipoise as to whether the Veteran's scoliosis of the lumbar spine was aggravated by his active duty.


CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for scoliosis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

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 military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2006); 38 C.F.R. § 3.303. 

Every Veteran who served in the active military, naval, or air service after December 31, 1946, 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; see also 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003) (holding that to rebut the presumption of sound condition under 38 U.S.C. § 1111, 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).

A pre-existing disease or injury will be considered to have been aggravated by military 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. § 1153 (2012); 38 C.F.R. § 3.306 (2017). Clear and unmistakable evidence is required to rebut a presumption of aggravation where the pre- service disability underwent an increase 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. Falzone v. Brown, 8 Vet. App. 398 (1995). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet. App. 304, 306-07 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991).

In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d at 1337 ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay testimony is competent to establish the presence of observable symptomatology). Once evidence is determined to be competent, the Board must then determine whether such evidence is also credible. See Layno, 6 Vet. App. at 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). 

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.

The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

According to service treatment records (STRs), the Veteran underwent an enlistment examination in January 1965. See January 1965 Report of Medical Examination. The examiner diagnosed him with slight scoliosis. In April 1966, the Veteran presented to the medical unit with complaints of low back pain. See April 1966 progress note (STR). Subsequently, the Veteran returned to the medical unit after sustaining a back injury. See July 1966 progress note (STR). The Veteran underwent a separation examination in December 1966. See December 1966 Report of Medical Examination. A clinical evaluation noted a normal spine. In addition, the Veteran denied having recurrent back pain at the time. Id.

According to a November 2003 VA primary care note, the Veteran had a history of lower back pain for about 30 years. See November 2003 VA primary care note. Subsequently, in February 2005, the Veteran returned to the primary care clinic with complaints of a stiff lower back. See February 2005 VA primary care note. He indicated that he had long-standing lower back pain since 1967. In addition, he reported working in the airport lifting luggage. Id.

In August 2010, the Veteran again visited the primary care clinic with complaints of low back pain. See August 2010 VA primary care nursing note. The attending medical professional determined that it is as likely as not that the Veteran's back condition "may be related" to his military service. See August 2010 VA ambulatory care note. 

A VA examination of the Veteran's spine took place in April 2011. See April 2011 Compensation and Pension Examination; April 2011 VA imaging report. The examiner diagnosed the Veteran with lumbar spine scoliosis. However, she stated that his scoliosis is not a result of service nor was it aggravated during active service. In so finding, she reasoned that the scoliosis likely pre-existed the Veteran's service and that the April 1966 reported back pain was self-limited. She also cited the December 1966 separation examination, which did not indicate a chronic back problem.

In a July 2012 letter, the Veteran's private physician, Dr. R.T., determined that it is as likely as not the Veteran's spinal condition, including his pre-existing scoliosis, is the result of a permanent aggravation of his symptomatology attributed to his military service. See July 2012 medical opinion by Dr. R.T. The physician based his conclusion on a review of the Veteran's STRs and symptomatology of worsening back pain.

Subsequently, in August 2012, a medical opinion was obtained from another private physician, Dr. R.F. See August 2012 medical opinion by Dr. R.F. Similarly, Dr. R.F. determined that the Veteran's scoliosis was likely aggravated by his military service. In support of his conclusion, Dr. R.F. cited the Veteran's reports of constant bending, marching, lifting, and jumping in and out of bunkers while in service. Dr. R.F. also based his conclusion on the Veteran's medical records, history of scoliosis, and current conditions. In addition, Dr. R.F. indicated that had the Veteran's scoliosis been recognized prior to his enlistment, he would have recommended restrictions on lifting, bending, and jumping in and out of bunkers as those activities "would always aggravate a prior condition of scoliosis." Id.

The Veteran underwent a further VA examination in October 2012. See October 2012 VA medical opinion. The examiner determined that the Veteran's pre-existing scoliosis was less likely as not permanently increased beyond the natural progress by military service. The examiner reasoned that the chronicity for his scoliosis was not established in service due to the absence of repetitive sick call visits or ongoing treatment either in service or following his separation. The examiner also cited the Veteran's separation examination, which showed a normal spine. In addition, the examiner noted that the Veteran's scoliosis was only noted again after service in 2011. According to the examiner, it would be more likely that after 40 or more years after his service departure, some other process would have resulted in the Veteran's scoliosis. With respect to a private opinion of record, which the examiner did not identify, the examiner stated that the medical provider may have not been given the entire service medical records to review, "but just a single piece of information." Id. Moreover, the examiner noted that the private medical opinion did not consider the short duration of military service, the lengthy period of time between separation and the 2011 diagnosis, the absence of ongoing back problems in service, the Veteran's ability to do his active duty assignments, the lack of ongoing care after separation, and the Veteran's prior occupational activities.

Upon review of the record, the Board finds that the competent and credible evidence is in relative equipoise as to whether the Veteran's back condition was aggravated by his active duty. First, the Board concludes that there is not clear and unmistakable evidence that the Veteran's scoliosis of the lumbar spine did not undergo worsening during service beyond the natural progression of the disease. As discussed above, the Veteran was noted to have scoliosis at his entry into active duty. He was treated on multiple occasions for complaints of back problems. Since his separation from active duty, the Veteran has credibly reported that he continued to experience low back pain. The medical record establishes a current diagnosis of scoliosis of the lumbar spine. The evidence of record also establishes that the scoliosis pre-existed service and was noted at service entry. The issue thus becomes whether the Veteran's pre-existing back condition was aggravated by service. See 38 C.F.R. § 3.306(b). Here, however, there is conflicting evidence as to whether the Veteran's service permanently aggravated his scoliosis.

First, the Board acknowledges that the October 2012 VA examination provided well-reasoned counterarguments to the positive private nexus opinions of record. However, its own negative nexus opinion also lacks sufficient detail. The VA examiner indicated that the Veteran's STRs do not reflect ongoing treatment for the back during service. While STRs indeed do not reflect daily sick call visits, they do reflect an April 1966 complaint of back pain as well a July 1966 report of a back injury. The examiner did not address this back injury and whether it could have permanently aggravated the Veteran's pre-existing scoliosis. In addition, while the examiner correctly indicated that the separation examination did not reflect a diagnosis of scoliosis, which only resurfaced in medical treatment records in April 2011, the Veteran reported in November 2003 and February 2005 that he had lower back pain since service. The examiner did not address the Veteran's reported history of continuous back pain. Finally, the examiner's claim that one of the private medical providers, whom he did not identify, did not review the entire service medical records is unfounded. Both Dr. R.T. and R.F. stated in their respective medical opinions that they reviewed the Veteran's STRs, and there is no evidence to conclude otherwise.

Similarly, the April 2011 VA examination provided a negative nexus opinion that failed to address all the pertinent evidence of record. The examiner did not consider the July 1966 report of a back injury and whether it could have permanently aggravated the Veteran's pre-existing scoliosis. Further, the examiner did not address the Veteran's reports of continuous back pain since his separation from service.

Turning to the positive nexus opinions of record, the private examiners similarly provided insufficient rationales to support their conclusions. While Dr. R.T. based his July 2012 medical opinion on the Veteran's STRs and his reports of worsening back pain, he did not offer any other analysis or evidence for his conclusion. In contrast, Dr. R.F. cited the Veteran's reported physical activities during service, including constant bending, marching, lifting, and jumping in and out of bunkers, as aggravators of his pre-existing scoliosis. According to Dr. R.F., such activities would always aggravate a prior condition of scoliosis. However, as the October 2012 VA examination correctly noted, Dr. R.F. failed to address the lack of ongoing care after separation and the Veteran's prior occupational activities, among other considerations.

In light of these conflicting medical opinions, the Board finds that neither is more probative than the other due to the lack of well-detailed rationales. Turning to the lay testimony of record, the Board finds that the Veteran's reports of back pain during and after service are consistent with his military occupational specialty (MOS) of supply handler. However, it is not clear from the record whether the Veteran's civilian work as a luggage handler may have also aggravated his scoliosis after service. In addition, while the Veteran is competent to report experiencing back pain since separation, there are no post-service treatment records available that reflect such complaints until November 2003. 

However, the Board notes that 38 C.F.R. § 3.306(b) requires clear and unmistakable evidence to rebut the presumption of aggravation. Here, when considering all competent and credible evidence of record, the Board finds the evidence to be in equipoise as to whether the Veteran's pre-existing disability increased in severity during service. See Falzone, supra. Thus, giving the Veteran the benefit of the doubt, the Board finds that his scoliosis of the lumbar spine was worsened during service. Because there is no clear and unmistakable evidence that any in-service progression of the Veteran's scoliosis was due solely to the natural progression of the disorder, the presumption of aggravation has not been overcome, and aggravation is presumed. 38 C.F.R. § 3.306(b). Therefore, the Board resolves all reasonable doubt in the Veteran's favor and concludes that service connection for scoliosis of the lumbar spine is warranted on the basis of aggravation of a pre-existing condition. 38 C.F.R. § 3.306. 


ORDER

Entitlement to service connection for scoliosis of the lumbar spine is granted.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs