Citation Nr: 1802843 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-16 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel INTRODUCTION The Veteran had active service from May 1974 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Veteran had a hearing before the undersigned in May 2015. A transcript of the hearing has been associated with the Veteran's electronic claims file. In July 2015, the Board reopened the issue and remanded it for further development and adjudication. Thereafter, the Board requested a medical specialist's opinion from the Veterans Health Administration (VHA) in April 2017. The Board finds that there has been substantial compliance with its remand directives and request for a VHA medical specialist's opinion, and the matter is now properly before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. An abnormal spine was noted on a pre-induction examination in May 1974. 2. There was clearly and unmistakable no permanent increase beyond its natural progression in the severity of the Veteran's pre-existing back disability during service. CONCLUSION OF LAW A back disability was neither incurred in service nor aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Service Connection The Veteran contends that his current back disability is the result of his service. A review of the Veteran's service treatment records indicates a pre-existing back disability. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C.A. § 1111. When a defect, infirmity, or disorder is noted on the enlistment examination, the presumption of soundness does not attach, and the only benefits that can be awarded are for aggravation pursuant to 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that such increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable (obvious, manifest, and undebatable) evidence is required to rebut the presumption of aggravation. 38 C.F.R. § 3.306 (b). The evidence must show a lasting worsening of the condition, meaning an increase in severity that existed at the time of separation from service and still exists currently. Hunt v. Derwinski, 1 Vet. App. 292, 296-97 (1991); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). In a claim for aggravation of a preexisting condition, the Veteran has the burden to show aggravation with evidence of symptomatic manifestations of the condition during service. If the presumption of aggravation arises, the burden shifts to VA to establish a lack of aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). In deciding a claim based on aggravation, after the presence of a preexisting condition has been established, the Board must determine (1) whether there has been any measured worsening of the condition during service, and (2) whether this constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Aggravation is defined as a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology that resolve with return to baseline level of disability. Given the evidence of record, the Board finds that the Veteran's back disability preexisted service. The Veteran's service treatment records include an undated note from a private physician indicating that the Veteran "was injured in an auto accident on 4/4/73 and sustained multiple facial lacerations and vertebral fractures of L2 and L4. He has made a good recovery and shows no apparent sequelae from his back injury." A May 1974 Report of Medical Examination prior to entrance into service noted an abnormal spine examination with healed compression fractures at L2 and L4 with no current disability or symptoms. The report noted a probability of degenerative arthritis 15 to 20 years in the future due to subluxation of L1 on L2. A contemporaneous Report of Medical History documented L2 and L4 vertebral fractures due to an automobile accident in April 1973, with a good recovery. A clinical consultation was conducted prior to the Veteran being cleared for service. The Veteran reported an automobile accident about a year previously for which he was hospitalized for 3 weeks and discharged with a brace that he wore for about a month. He denied any current problems and there had been no follow-up appointments due to lack of symptoms. X-rays showed healed old compression fractures of L2 and L4, with L2 being the greater. There was about a 3 millimeter subluxation of L1 on L2 to the left, but the joint spaces were maintained and the lordotic curve was okay. On examination, there were no neuro, sensory, or motor deficits. There was no pelvic tilt and straight leg raise testing was negative. Forward range of motion showed no prominent gibbus. The impression was healed compression fractures, with L2 being about a 40 percent decrease in height and L4 a 10 to 15 percent decrease in height. Currently at the time, the Veteran was totally asymptomatic. The record did note the likelihood of degenerative arthritis and pain in the next 15 to 20 years due to the degree of compression and lateral subluxation. Based on these findings, the Veteran was medically cleared for service. Additionally, the Board finds that the presumption of aggravation applies in this instant case. In June 1974, shortly after entrance into service, the Veteran reported pain in the middle of his back due to training. He had difficulty lifting his legs, bending his back, and could not stand completely straight. The Veteran denied any in-service trauma. On examination, there was paralumbar spasm and slowed range of motion that was otherwise within normal limits. The pain was non-radiating. The impression was spasm. Four days later, x-rays showed a marked old compression fracture of L2 and the collapse of L4, as well as post-traumatic kyphosis at L2. The pedicles were intact and there was minimal retrolisthesis of L5 on S1. Another x-ray report from the same day noted that L2 had completely collapsed. Although not on these x-ray reports, a treatment record from the following day indicated that x-rays had shown fractures of L2, L3, and L4, as well as retrolisthesis of L5 on S1. The Veteran was considered to be medically unfit for service. A hospital summary documented in-patient treatment for approximately one week in mid-June 1974. The record indicated that examination showed kyphosis of the upper thoracic spine with limitation of flexion. In addition, x-rays showed compression fractures of L2, L3, and L4, retrolisthesis of L5 on S1, and spina bifida of S1. The diagnosis was low back pain, secondary to compression fractures sustained in a car accident one year previously. He was found unfit for enlistment or induction into service. A medical board ultimately found that the Veteran should be separated for a condition existing prior to service that was not aggravated by active duty and that the maximum benefit of hospitalization had been achieved. Considering the evidence of record, the Board finds that the Veteran's back disability preexisted service, was noted upon entry, and that the Veteran's back disability increased in severity during service. However, as noted above, 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.A. § 1153 (West 2014); 38 C.F.R. § 3.306 (a) (2017). Because the presumption of aggravation applies in this case, clear and unmistakable (obvious, manifest, and undebatable) evidence that the Veteran's increase in disability was due to the natural progress of the preexisting back disability is required to rebut the presumption. 38 C.F.R. § 3.306 (b). After consideration of the medical and lay evidence of record, the Board finds that there is clear and unmistakable evidence that the Veteran's disability was not aggravated in service beyond its natural progression. A May 2005 VA examination included a review of the claims file and the Veteran's medical history, including his pre-service, in service, and post-service history was discussed in detail. A physical examination was also completed. The Veteran reported that after separation from service he worked at his family farm from 1974 to 1977 and then at Rollyson Aluminum until 1984, when he was injured during work. He reached overhead to stop metal strips from falling off a shelf, onto him, when he felt a sudden pop and pain in his lower back. He did not return to work due to his injury. The Veteran reported that he had no medical care for any back problems after discharge until his industrial injury at Rollyson Aluminum. The examiner concluded that it was more likely than not that the Veteran's back injury occurred prior to service and was aggravated by the industrial injury at Rollyson Aluminum after service. The examiner stated that is less likely as not that his back disability underwent an increase in disability during service. He based this opinion on a review of the claims file, indicating that the Veteran only had two days of basic training before he was evaluated, put on profile, and his basic training stopped. He also based this opinion on the Veteran's reported history indicating that he worked on a farm after service, and then at Rollyson Aluminum doing labor and manufacturing work, and did not seek any medical care for his back problems until he was injured at work in 1984, 10 years after service. In weighing the medical and lay evidence of record, the Board has also considered the May 2009 letter from a private physician. The physician discussed the Veteran's pre-service and in-service low back history, including the April 1973 pre-service motor vehicle accident that had resulted in multiple compression fractures of the spine, the physician's finding prior to entrance into service that the Veteran had no current symptoms and was fit for service, and the Veteran's subsequent hospitalization and ultimate discharge from service for back problems within weeks of entry. The physician concluded that the Veteran, "had been able to do very physical work after his injury and before the military with no subsequent pain or need for repeat hospitalization. However, after only 15 days in the military he developed back pain requiring a week of hospitalization and was deemed no longer fit for continued military service. Therefore, it is more likely than not that this military service active duty either aggravated his back injury or caused a new back problem." The Veteran was afforded an additional VA examination in November 2012; however, as noted in the July 2015 remand, the Board has found multiple inconsistencies in the examiner's conclusion. Therefore, in December 2015 the Veteran was afforded another VA examination. The examiner concluded that the Veteran suffered pain in service, which was typical of the condition and not beyond the normal progression of the disorder. Based on the foregoing, the examiner concluded that there was no permanent aggravation beyond the natural progression identified. Moreover, in response to an April 2017 request for a medical specialist's opinion from the VHA, in August 2017 a medical specialist found that there was no permanent increase in the Veteran's fracture residuals in service. The medical specialist concluded that "it is less likely that the Veteran incurred significant long-term back problems related to active service, [and] [ . . .]that it is also less likely that any other current low back disability is related to his in-service occurrence of back pain." The medical specialist performed a thorough review of the Veteran's claims file and provided a thorough synopsis of the Veteran's medical and military history. The medical specialist explained that the Veteran has consistently reported pain first beginning at the time of the motor vehicle accident, during which he sustained lumbar fractures, and then his developing pain with the aluminum factory accident. The medical specialist asserts that although the Veteran likely did develop pain during his military service, "I do not believe that it was lasting permanent pain. There is other evidence that he did not have significant pain after military service." The medical specialist specifically points to several times in the medical reports where the Veteran reported that his back never really hurt him until he got hurt at Rollyson's. Furthermore, the medical specialist noted the discrepancies between the x-ray report from June 10, 1974 (which found marked old compression fracture of L2 and slight compression of L4 -traumatic- slight kyphosis at L2 - pedicles intact - minimal retrolisthesis of L5 on S1) and the x-ray report from June 12, 1974 (which found compression fractures of L2, L3, L4, with retrolisthesis of L5-S1, spina bifida of S1). The medical specialist explained that discrepancies can exist because "two people can look at one image and create different reports." He added that two images can also look different because of variabilities in imaging equipment, settings, and angulation, and that "it is not necessarily accurate to compare reports of different images unless the two images are side-by-side and the report of describes a comparison of the two images." In this case, the medical specialist found that the reason for the discrepancies are unclear. However, he found that one reported a fracture of L3, while the other did not, and that there are no other reports describing fracture of L3. Additionally, the medical specialist explained that the report of retrolisthesis can be variably interpreted between physicians, with subsequent reports in this case not finding this. The medical specialist reports that spina bifida of S1 is likely an overreading, as further scans do not indicate such, and explained that such is a congenital malformation that typically does not cause pain. The Board affords the August 2017 medical specialist's opinion significant probative weight and finds that, considering this opinion along with the other evidence of record described above, there is clear and unmistakable evidence that the Veteran's back disability was not aggravated in service beyond its natural progression. Although the Board acknowledges that the August 2017 medical specialist's opinion did not use the specific legal language of "clear and unmistakable evidence," the overall meaning in the report is clear. In response to the questions posed to him, the examiner expressed his opinion that the back disability preexisted service and did not permanently worsen in service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a VA examination report "must be read as a whole" to determine an examiner's rationale). Medical reports must be read as a whole, and the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012). The August 2017 medical specialist did not equivocate in his belief that there was no lasting permanent pain in the Veteran's back as a result of service. Additionally, the Board notes that it has considered the private positive medical opinion of record, but finds the August 2017 VHA opinion to be more probative. The medical specialist reviewed the Veteran's medical and military history and provided an opinion supported by thorough rationale that includes facts and medical knowledge. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (referring to the need for medical opinions to be supported by sufficient facts and data); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also finds that the August 2017 VHA opinion is supported by particular facts in the record that indicate the Veteran's disability was clearly and unmistabily not aggravated in service. For instance, the evidence indicates that post-service, the Veteran initially worked on the family farm and in June 1978 began working in a physically demanding job at an aluminum manufacturer, until injuring his back in 1984. Private treatment reports from April 1985, October 1989, and March 1996 all show that the Veteran reported that he sustained an injury to the low back during a motor vehicle accident at age 17, but indicate that subsequent to the motor accident he did well. Similarly, in a June 1986 statement to SSA, the Veteran stated, "About 13 to 14 yrs. ago I was in a car wreck and got my back hurt. I have at least one fractured vertebrae that I know of. My back never really bothered [me] very much until I got it rehurt at [work in 1984]. Now it bothers me ever[y] day." An April 1989 SSA decision found that the Veteran's back condition had been disabling since June 1984. Medical records submitted by the Veteran, and medical records associated with his SSA claim, indicated that he became disabled when he was injured in June 1984 while working for Rollyson Aluminum. Medical records also indicated that the Veteran had an old compression fracture of L2 stemming from an April 1973 automobile accident. Therefore, the Board finds that such reports and recollections of the Veteran, as noted above, are not entitled to great probative weight. Although the Veteran asserts back pain since service, and the Veteran is credible to report such pain he experienced, the Veteran's statements throughout the record are inconsistent with such assertions. Moreover, while the Veteran may have experienced pain in service, such pain did not constitute a permanent increase in severity, as indicated by the August 2017 VHA medical opinion's analysis and the Veteran's post-service assertions and occupations. Again, the Board is reminded that "[t]emporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002). In conclusion, and according to the most probative evidence of record, the Veteran's back disability preexisted service and the Veteran's in-service occurrence did not constitute a permanent increase in severity of the underlying back disability beyond the natural progression of the disability. Accordingly, the Board finds that there is clear and unmistakable evidence that the Veteran's back disability was not aggravated in service beyond its natural progresson, and service connection for a back disability is not warranted. ORDER Entitlement to service connection for a back disability is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs