Citation Nr: 1802441 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-39 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a lumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to August 1969. These matters come to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in January 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran appeared at the RO and testified before the undersigned Veterans Law Judge in August 2014. A transcript of the hearing is of record. The Board remanded this matter to the RO in December 2015 and June 2016 for further development. The matter has now returned to the Board for further appellate action. FINDING OF FACT The preponderance of the evidence indicates that the Veteran's lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, multilevel DDD and DJD, and a status post laminectomy is directly related to his active duty military service. CONCLUSION OF LAW The criteria for service connection for lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, multilevel DDD and DJD, and a status post laminectomy have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Board notes that the Veteran has been provided all required notice and that the evidence currently of record is sufficient to substantiate his claim for entitlement to service connection for a lumbar spine disorder. Therefore, no further development with respect to the matter decided herein is required under 38 U.S.C.A. §§ 5103, 5103A or 38 C.F.R. § 3.159. II. Lumbar Spine Disorder The Veteran contends that service connection is warranted for a lumbar spine disorder on the basis that: it was incurred during active duty service, that it is secondary to his service-connected bilateral knee disability, or in the alternative, that a preexisting condition was aggravated during military service. A. Preexisting Condition The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran currently has the claimed disability. See 38 U.S.C. § 1110; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, evidence indicates the Veteran was diagnosed with a lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, multilevel degenerative disc disease (DDD) and degenerative joint disease (DJD), and a status post laminectomy at a July 2016 VA examination. Therefore, it is undisputed that the Veteran has a current lumbar spine disorder. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no preexisting condition noted upon entry into service, a veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. This statutory provision is referred to as the "presumption of soundness." Horn, 25 Vet. App. at 234. The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second aggravation prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). The government may show a lack of aggravation by establishing by clear and unmistakable evidence "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 (quoting 38 U.S.C. § 1153). This burden of proof must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn, 25 Vet. App. at 236-37. If the government rebuts the presumption of soundness, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111 by showing any of the above, the veteran's claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. Prior to the application of the presumption of soundness, there must be evidence that a disease or injury-that was not noted upon entrance into service-actually manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2013). The presumption of soundness shields the Veteran from a finding that the disease or injury preexisted (and therefore was not incurred in) service by requiring VA to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Id. at 55. "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). With regard to the existence of a preexisting condition, to be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). The Veteran's induction examination listed a history of unspecified back trouble and arthritis or rheumatism; however, his spine was found to be normal at the time of examination. With regard to the existence of a preexisting condition, clear and unmistakable evidence of record that a lumbar spine disorder preexisted the Veteran's is not present. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Although there is evidence that he had some problems with his back prior to entering active duty service, in a December 2017 VA medical opinion obtained to conclusively determine if any preexisting condition was present, a VA neurologist opined that, based upon a review of the Veteran's entire medical history, a "low back condition possibly existed prior to the patient's induction into active duty service in September 1968." Although the neurologist indicated that a preexisting condition was possible, this equivocal language does not indicate that any such condition definitively existed prior to service. Therefore, the opinion does not represent clear and unmistakable evidence of a preexisting condition and the presumption of soundness attaches regarding the issue herein. B. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In addition, disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As a general matter, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Further, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection requires (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board notes that the Veteran is service connected for bilateral knee tendonitis, effective September 2008. However, as described below, service connection for the Veteran's lumbar spine disorder is being granted on a direct basis and discussion regarding his claim for service connection on a secondary basis is unnecessary. The medical evidence of record indicates that the Veteran's lumbar spine disorder had an onset during active duty service, that he continued to experience symptoms since discharge from active duty service, and that his currently diagnosed lumbar spine disorder is directly related to his active duty service. At a September 2014 hearing, the Veteran testified that while he was in basic training, he was hospitalized with symptoms including a fever and high blood pressure. He stated that there was a meningitis scare on the base at the time, and he underwent multiple spinal taps as part of testing done while he was in the hospital. The Veteran further testified that the spinal taps did not yield results, and the person in charge told him that the tests were done wrong and the individuals that performed the spinal taps were not qualified to do so. He alleged that the spinal tap damaged his vertebrae, causing it to bulge, which subsequently required surgical repair. The Veteran's service treatment records indicate that during his time in the military, he reported experiencing periodic pain related to his lower back on numerous occasions. He reported to the base emergency room (ER) on November 15, 1968 with complaints of a severe headache, fever, and lethargy. The service treatment records reflect that he was given a "spinal check" (i.e., a spinal tap) and that he was feeling better shortly after the procedure. In January of 1969, the Veteran again reported to the base clinic with complaints of a sore throat, sore neck, back pain, and knee pain. He returned to the base clinic a third time with complaints of low back pain in May 1969 and an associated radiographic report indicated that his thoracic and lumbar spine were within normal limits. Due to his frequent complaints of knee and back pain, the Veteran was tested for rheumatic arthritis in January 1969 and May 1969. The January rheumatoid factor and latex tests were negative and the May latex test was weakly reactive. No definite diagnosis was rendered concerning the Veteran's knee condition. Ultimately, he was given a hardship discharge in August 1969 and his spine was found to be normal at his separation examination. The Veteran claimed that he received treatment for back pain immediately following service. After his separation from the military, he worked in non-strenuous jobs first as an engineer and then as a jeweler. At a June 2010 RO formal hearing, the Veteran testified that he was in the hospital two to three times between 1971 and 1975 due to his back problems, but he was unable to obtain the records regarding his treatment. The Veteran also reported that he began receiving treatment for his lower back from a chiropractor in 1976 and that he woke up one morning in 1979 and could not move. He stated that he sought further treatment and completed traction, chiropractic care, and imaging which revealed a ruptured disk. The Veteran indicated on his May 1980 application for compensation or pension that he saw two physicians after discharge concerning his back. Despite these reports, the earliest record present in the file documenting evidence of post-service medical treatment for the lower back dates from July 1980. The Veteran underwent a laminectomy and discectomy surgery in July 1980 involving his L4, L5, and S1 vertebrae. He claimed in an October 1980 statement that the operation provided him some relief with his lower back issues, but that he continued to experience back pain, weakness, and limitation of movement. At an October 1980 surgery follow-up visit, a private physician referred him for physical therapy for his back and stated that he believed the Veteran had a muscular strain and that he had "over done it" both before and after his surgery. Weighing in support of the Veteran's claim is a June 1980 letter from his private physician noting the Veteran's history of intermittent back pain with past sprains and strains of his back. The letter also indicates that he had previously received treatment from a chiropractor. The letter further notes that his back problems became markedly worse in January 1980. The Veteran's physician stated that he claimed to have discomfort and trouble with his back since having a spinal tap in service, and that the Veteran questioned the competency of the people who performed the spinal tap. The record does not indicate that the Veteran underwent any further treatment related to his back until March 2009, where a VA treatment record noted that the Veteran had a history of back pain that started 10 years prior. The Veteran continued to be treated for lower back problems after March 2009, and records show he underwent several injections and other procedures in order to treat pain. He was diagnosed with a lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, multilevel DDD and DJD, and a status post laminectomy at a July 2016 VA examination. VA attempted on multiple occasions to obtain a legally adequate medical opinion addressing the etiology of the Veteran's current chronic low back disability. He was provided VA examinations of the spine in August 1980, August 2010, and July 2016. However, the Board found that each of those opinions was inadequate to decide the instant claim and requested a VA medical opinion in July 2017. The December 2017 VA medical opinion obtained in response indicated that it was at least as likely as not that the Veteran's lumbar spine condition was directly related to procedures performed on his lower back during active duty service. The record indicates that the Veteran was sound upon entry to service, and that after undergoing "spinal tap" procedures while on active duty he frequently reported back trouble. Although his back was indicated as normal at his discharge examination, he reported requiring additional treatment shortly thereafter and eventually underwent laminectomy and discectomy surgery in 1980. He later required further treatment for his lower back, including multiple injections, and was diagnosed with a lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, multilevel DDD and DJD, and a status post laminectomy in July 2016. Accordingly, the Veteran's symptoms onset during active duty service and continued thereafter. Further in the December 2017 VA medical opinion, a VA neurologist determined that there was a nexus between his lumbar spine disorder and his active duty service. Therefore, resolving all reasonable doubt in favor of the Veteran, the preponderance of the medical and lay evidence of record indicates that the Veteran's lumbar spine disability is directly related to his active duty service and service connection is granted. ORDER Entitlement to service connection for lumbosacral strain, degenerative arthritis of the spine, intervertebral disc syndrome, multilevel DDD and DJD, and a status post laminectomy is granted. ____________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs