Citation Nr: 1805530 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 14-17 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Keyvan, Counsel INTRODUCTION The Veteran had active service from March 1996 to June 1996 from August 2008 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran filed a notice of disagreement (NOD) with this rating decision in July 2012 and perfected a timely appeal of this claim in May 2014. FINDING OF FACT The Veteran's current low back disability had its onset during his period of active service. CONCLUSION OF LAW The criteria for service connection for a low back disability have all been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he injured his low back during service, and most predominantly, during his deployment in Iraq. According to the Veteran, his current low back disability is related to these in-service injuries. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110 (2012); 38 C.F.R. § 3.303 (a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(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 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2017). A veteran is presumed to be in sound condition upon entrance into service, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service, or where evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment. 38 U.S.C. § 1111 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b) (2017). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, 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. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Turning to the service treatment records, the Board notes that at the March 1996 enlistment examination, the clinical evaluation of the Veteran's spine was shown to be normal. In addition, the Veteran denied a medical history of recurrent back pain, arthritis, rheumatism or bursitis. An April 1996 orthopedic consultation report documented the Veteran's complaints of left hip pain, and the April 1996 Physical Profile report reflects that the Veteran had a painful left hip that originated and radiated from his lumbar spine. It was also noted that he had a history of pelvic fracture three to four years prior. Based on his evaluation of the Veteran, as well as his review of the hip x-rays, the in-service clinician diagnosed the Veteran with having a hip contusion. Review of the April 1996 Physical Profile report reflects that the Veteran was assigned a profile of L3 and instructed to refrain from certain activities such as running, jumping and doing sit-ups. The Veteran presented at the military clinic again in May 1996 with complaints of left knee and hip pain. In the comments section, it was noted that he had been involved in a motor vehicle accident (MVA) three years prior and had experienced some problems since this accident. The in-service clinician further noted that physical examination of the knee was within normal limits, and that the hip pain was actually lumbar pain that radiated to the left buttock region. Based on his discussion with, as well as his evaluation of, the Veteran, the in-service clinician diagnosed the Veteran with having subjective knee, back and hip pain. The May 1996 Physical Profile Report reflects that the Veteran was assigned a physical profile of L3 as a result of his back/hip pain, and instructed to walk at his own pace and to undergo physical therapy. Despite receiving physical therapy, a clinical report reflects that the Veteran was seen soon thereafter with continuing complaints of back pain that had not subsided. After evaluating the Veteran, the treatment provider assessed him with subjective lumbar pain of unknown etiology and recommended that he continue seeking follow-up treatment and care for his symptoms. Subsequent clinical records dated throughout the remainder of May 1996 reflect that the Veteran continued receiving follow-up treatment and care for his low back symptoms. After his separation from service in 1996, the Veteran enlisted in the Army National Guard in 2006 and had active service from August 2008 to August 2009. An informal line of duty (LOD) report reflects that he injured his back and was assessed with a low back sprain in November 2008 during his deployment to Iraq. In a November 2008 Sworn Statement, the Veteran provided the details surrounding this injury and reported that he initially felt a slight pain in his back in October 2008 when the bus he was in hit a speed bump and caused him to be lifted off his seat while he was wearing a fully loaded Interceptor Body Armor (IBA). According to the Veteran, about a month later, he was instructed by his commanding officer to perform several exercises, and while performing push-ups and flutter kicks, he felt a sharp pain in his lower back and had a difficult time standing up due to the pain. Upon reporting to the medical clinic, and undergoing a physical evaluation, he was diagnosed with having a low back strain and placed on a Profile for a month. Review of the service treatment records associated with the 2008-2009 period of service reflects that the Veteran was referred to the rehabilitation department in December 2008 with complaints of low back pain. Treatment records reflected an assessment of "back strain lumbar." Subsequent clinical records dated in December 2008 reflect that he was seen at the military clinic and underwent a number of physical therapy sessions, to include assisted exercises for range of motion movement, heated hot packs and cryotherapy cold packs on the lumbar area, for treatment of his low back symptoms. In the June 2009 Statement of Medical Examination and Duty Status, the medical examiner noted that the Veteran was participating in the physical training exercises, and specifically doing flutter kicks, when he felt a sharp pain in his lower back. According to the medical examiner, the Veteran injured and strained his lower back in the line of duty. In the August 2009 Post-Deployment Health Assessment report, when asked to rate his current health, the Veteran indicated that his health was somewhat worse now than it was prior to his deployment. With regard to his symptoms, the Veteran indicated that he was seen at sick call, placed a on Profile, and still experienced problems due to his back pain. He also reported to have ongoing concerns regarding his low back pain. In the August 2009 Report of Medical Assessment, when asked to compare his overall health to his health at his last medical assessment, the Veteran indicated that his health had worsened and that he continued to experience back problems. He also indicated that he intended to seek VA disability benefits due to his back problems. In the comments section, the in-service clinician noted that the Veteran had experienced low back pain since 1994 as a result of his MVA, and the pain was aggravated during his deployment. The Veteran filed a claim seeking service connection for his low back disability in August 2009 prior to his separation from active service. He was afforded a VA examination in connection to his low back condition in October 2009. During the examination, the Veteran provided his medical history and described the circumstances surrounding his in-service back injury. Based on his discussion with, as well as his evaluation of the Veteran, the VA examiner diagnosed him with having mechanical lower back pain likely related to service with congenital partial sacralization at L-5. In light of the fact that the Veteran reported on several occasions that he injured his back prior to his enlistment into service in 1996, his claims file was referred to another VA examiner for an additional opinion addressing whether his current back disability was due to a pre-service injury that occurred in 1993, or to the injuries that occurred in the line of duty in either in May 1996 or November 2008. If the examiner found that the Veteran's low back condition pre-existed his service, he/she was also asked to address whether this disorder was aggravated beyond normal progression during his military service. In the May 2011 VA addendum opinion, the VA examiner, after reviewing the pertinent service treatment records , determined that the Veteran's diagnosed mechanical low back pain with congenital partial sacralization at L5 is at least as likely as not caused by, or a result of, a pre-service injury that occurred in 1993 as well as a congenital anomaly. According to the VA examiner, it is at least as likely as not that the initial back injury was due to the 1993 MVA and the service treatment records from 1996 are consistent with a flare-up of back pain secondary to the increased activities required in training. The examiner further determined that the Veteran's pre-existing back pain is less likely as not permanently aggravated beyond normal progression by his military service. In reaching this determination, the examiner noted that the Veteran's complaints of back pain during service were consistent with that of a flare-up, and motions such as bending, walking and even flutter kicks were consistent mechanisms that would trigger a flare-up of a pre-existing back condition. In a subsequent addendum opinion dated in March 2014, the VA physician determined that the Veteran's low back disability clearly and unmistakably pre-existed his first period of service (March 1996 - June 1996) and his second period of service (August 2008 - August 2009). The VA physician noted that based on the Veteran's own admissions which he made on multiple occasions; he had a pre-existing congenital sacralization of the lumbar spine and back condition which started in 1993/1994 following his MVA. The VA physician also took note of the May 1996 progress note which indicated that the Veteran's symptoms were reactivated or flared-up when he jumped off his bunk. After his June 1996 separation from service, he was called to active duty in August 2008, which according to the VA physician, meant his back pain in 1996 was "a mere flare up" of his pre-existing back condition. In 2008, the Veteran's back pain flared up once again while he was doing flutter kicks. Based on her review of these records, the VA physician determined that the Veteran's back condition "pre-existed prior to joining [the] military in 1996" and he experienced "a flare up that subsided and...rejoined military and had a second flare up in 2008." The VA physician also agreed with the May 2011 examiner that the Veteran's back condition is less likely than not permanently aggravated beyond normal progression by his military service. Although both the May 2011 and March 2014 VA physicians determined that the Veteran had a back disability prior to service, they based this determination on the Veteran's reported statements during his in-service treatment visits and at his examination. Indeed, the only evidence that the Veteran had a low back disability prior to service are reports made by the Veteran to his in-service clinicians and his post-service treatment providers many years after the fact. However, as noted above, his March 1996 enlistment examination reports reflects that he was fit for duty. The Veteran was also presumed sound prior to his second period of service, and specifically prior to his deployment to Iraq. Indeed, in the April 2008 and October 2008 pre-deployment health assessment reports, the Veteran described his health as good, and no referrals were indicated for any orthopedic problems. History provided by the Veteran of the pre-service existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition. 38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995). To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, 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. VAOPGCPREC 3-2003 (July 16, 2003). Based on the totality of the evidence, the Board finds that the evidence does not rebut the presumption of soundness. In this regard, there is no clear and unmistakable evidence that the Veteran's low back disorder pre-existed his entry into service. Not having found clear and unmistakable evidence of a pre-existing disability, the claim becomes one of direct service connection, and the May 2011 and March 2014 VA medical opinions are of limited probative value. Given the nature of the Veteran's condition and its observable symptoms, the Board finds that the Veteran is competent to report that he injured his low back in service, and has experienced ongoing pain and discomfort in the lower back since service. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). The Board also finds the Veteran's statements with respect to his symptomatology to be credible. In light of the service treatment records which documented the Veteran's low back injury, his diagnosed low back strain, and treatment he received for any associated symptoms; the June 2009 Statement of Medical Examination and Duty Status report which reflected the medical examiner's determination that the Veteran's low back injury was incurred in the line of duty; the August 2009 Post Deployment Assessment and Report of Medical Assessment reflecting the Veteran's complaints of worsening back symptoms, as well as his credible account of ongoing back pain since these in-service incidents, and given that the Veteran first filed a claim seeking service connection for his back condition before his separation from active service, and the October 2009 VA examiner's opinion relating the Veteran's low back disability to his service, the Board finds the evidence for and against his claim to be at least in relative equipoise. Resolving reasonable doubt in favor of the Veteran, the Board finds that the Veteran's current low back disability is due to injury occurred in the line of duty in active military service. Accordingly, service connection for a low back disorder must be granted. See 38 U.S.C. §5107 (b); Gilbert, 1 Vet. App. At 53-56. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for a low back disability is granted. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs