Citation Nr: 1754110 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 14-25 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a low back strain. 2. Entitlement to service connection for depression, to include as due to a low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Abrams, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to December 1979. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran had a videoconference hearing in July 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The issue of entitlement to service connection for depression, to include as due to a low back strain, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The claims file does not contain evidence of record clearly and unmistakably showing both that the Veteran's low back disorder preexisted service and that it was not aggravated by service. 2. The claims file does contain evidence that the Veteran was first extensively treated for a chronic back disorder in service and that such disorder, in fact, led to his separation from service. CONCLUSION OF LAW The criteria for service connection for a low back strain have been met. 38 U.S.C. § 1131 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). Given the favorable disposition of the claim of entitlement to service connection for a low back strain, the Board finds that all notification and development action needed to fairly adjudicate this claim has been accomplished. III. Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131 (2012). Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, organic neurological disorders, and peptic ulcers, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 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 (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, the VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089, 196 (Fed. Cir. 2004). IV. Analysis In this case, the Veteran has asserted that his low back strain is a result of an injury during active service. The Board has reviewed the Veteran's service treatment records, and at entry in to service (the report date is illegible), no spine or other abnormalities were noted. However, he was treated for low back pain on multiple occasions beginning in August 1979. He was noted to have a recent onset of this problem after climbing stairs. He was treated for low back pain on a very frequent basis in the following months. In December 1979, the Veteran was noted in a Medical Board report to be unfit for service by reason of synostosis, L4-L5, of the right facet joint, and chronic low back pain. Without further explanation, this was noted to have existed prior to enlistment and to have not been aggravated by service. In summary, the service treatment records show extensive treatment for a low back disorder during service, one which was not noted at entry into service. The Board has considered the notation of a preexisting disability that was not aggravated by service, from December 1979, but the question remains whether the back disorder manifest in service clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. Absent the requisite phrasing and a detailed rationale, the December 1979 report in and of itself does not meet that threshold. In the April 2012 VA examination report, the Veteran noted that in August 1979, shortly after entering service, he fell down a flight of steps and injured his back. This statement is corroborated by an August 1979 service treatment report that noted that the Veteran had a strained back for about a month. The Veteran was put on light duty for three weeks. The April 2012 VA examiner opined that it was less likely than not that the Veteran's back condition was caused by, resulted from, or was permanently aggravated by his military service. The rationale was that there was no documentation which would account for any chronicity of the Veteran's back condition. In a June 2014 VA examination report, the examiner noted that the Veteran was hospitalized for 30 days following his fall down the stairs, and about a year and a half after his discharge from active service, saw a doctor for his back condition. In a June 2014 addendum opinion, the VA examiner opined that the Veteran's claimed condition, 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 the Veteran's low back pain was secondary to synostosis which pre-existed service and was not aggravated by service. The Board finds two problems with this addendum opinion. First, the examiner failed to reconcile the finding of a disability which clearly and unmistakably preexisted service with the entrance examination clearly showing no current low back findings. Second, even if one hypothetically accepts the conclusion that there was clear and unmistakable evidence that the Veteran had back problems that pre-existed service, the June 2014 VA addendum opinion did not find that there was clear and unmistakable evidence that the Veteran's back condition was not aggravated by service. Both showings need to be made for the 38 U.S.C. § 1111 presumption of soundness to be rebutted. Taken as a whole, therefore, the presumption of soundness has not been rebutted in this case. Rather, the evidence clearly shows that the Veteran was treated initially - and very extensively - for low back problems during his brief period of service, and that he was in fact recommended to be separated from service for a known clinical low back diagnosis. The Veteran has persuasively asserted that this back disorder is linked to in-service injury, and there is no competent evidence showing a significant intercurrent cause. The Board thus finds that it is more likely than not that the Veteran has a current low back disorder that was initially incurred in service. Accordingly, the criteria for service connection have been met, and the claim is granted. ORDER Entitlement to service connection for a low back strain is granted. REMAND Concerning the claim for entitlement to service connection for depression, the Board notes that in a November 2012 private treatment report, a history of depression was noted. Additionally, in his July 2017 hearing, the Veteran testified that his back pain was the cause of some of his mental problems and that he had even tried to commit suicide. The Board notes that the Veteran has never had a VA examination to determine what, if any, psychological condition he has, and whether it is etiologically related to active service, to include as due to his now service-connected back condition. On remand, the RO is requested to schedule the Veteran for a psychological examination to determine the etiology of any diagnosed psychological conditions found. Accordingly, the case is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). Expedited handling is requested.) 1. In accordance with the provisions of 38 C.F.R. § 3.159(c)(1) (2017), make efforts to obtain all VA and private treatment records concerning the Veteran's sleep problems. 2. Provide the Veteran and his representative with appropriate notice regarding the issue of entitlement to service connection for depression, to include as due to the now service-connected low back strain, to include the need to file any required claims forms. 3. After the above development is completed, schedule the Veteran for a VA mental health examination, to be conducted by a VA psychologist or psychiatrist, to determine the identity and etiology of any psychological condition, to include depression, which may be present. Prior to the examination, the claims folder and a copy of this remand must be made available to the examiner for review of the case. A notation to the effect that this record review took place should be included in the report. The examiner is directed to administer all necessary psychological testing of the Veteran, and to prepare a report which fully discusses his symptomatology and test findings. After reviewing all pertinent records associated with the claims file and conducting an evaluation of the Veteran, the examiner is requested to opine as to whether it is at least as likely as not (a 50 percent probability or greater) that any psychiatric condition is either directly related to active military service or is proximately due to or chronically aggravated by the Veteran's now service-connected low back strain. 4. After the completion of the above instructions, and any other development deemed necessary, furnish the Veteran and his representative with a supplemental statement of the case and give him an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs