Citation Nr: 18144472 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 15-03 786A DATE: October 24, 2018 ORDER Service connection for a back disability, to include thoracolumbar scoliosis, is denied. REMANDED Timeliness of notice of disagreement for vulval intra-epithelial neoplasia is remanded. FINDING OF FACT 1. The Veteran’s back disability, to include thoracolumbar scoliosis, pre-existed her active service from August 2009 to June 2011. 2. The Veteran’s back disability, to include thoracolumbar scoliosis, did not have its onset during her period of active service and was not chronically worsened beyond its natural progression by her period of active service. CONCLUSION OF LAW The criteria for establishing service connection for a back disability, to include thoracolumbar scoliosis, have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Army from August 2009 to June 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a back disability, to include thoracolumbar scoliosis. The Veteran filed a notice of disagreement (NOD) in July 2013. A statement of the case (SOC) was issued in September 2014. The Veteran perfected her appeal in February 2015. A supplemental statement of the case (SSOC) was issued in July 2016. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in July 2018; a transcript of that hearing is associated with the claims file. Service Connection The Veteran contends that her back disability, to include thoracolumbar scoliosis, existed prior to service and was worsened beyond its natural progression by her military service. In considering the evidence of record, the Board finds that the Veteran’s claim of entitlement to disability compensation benefits for a back disability, to include thoracolumbar scoliosis, must be denied. 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, 1131; 38 C.F.R. § 3.303(a). “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)). Here, in a medical examination from June 2018, the Veteran was examined for scoliosis, and the examiner, using the Cobb method, found that the Veteran has a gentle dextroscoliosis of the thoracolumbar spine region. Scoliosis is a deformity of the spine that results in a sideways curve of the spinal column. See Dorland’s Illustrated Medical Dictionary 1681 (32nd ed. 2012). Dextroscoliosis is a form of scoliosis where the spinal column curves to the right. The term “thoracolumbar” relates to conditions concerning the thoracic (chest) and lumbar (lower back) parts of the spine. Therefore, the Veteran fulfills the first of the three requirements for service connection – a current disability. A veteran is presumed 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 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 sound condition except for defects noted when examined and accepted for service. 38 U.S.C. § 1111. As to disorders noted at entrance into service, the law for determining if VA disability compensation benefits are warranted is 38 U.S.C. § 1153, as implemented by 38 C.F.R. § 3.306 To be “noted” upon entry into service within the meaning of the relevant 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. The Veteran’s scoliosis was noted upon entry into service. In the Veteran’s March 2009 Report of Medical Examination at enlistment, the examination lists lumbar scoliosis among the Veteran’s diagnoses in both the “Notes” section and the “Summary of Defects and Diagnosis” section. The selection for abnormal is indicated for the Veteran’s spine with a reference to scoliosis. Additionally, in an April 2009 medical report from Diagnosis Medical Imaging Associates, PSC, that is included among her service treatment records, the examiner diagnosed the Veteran with 3 levels of idiopathic thoracolumbar scoliosis. “[I]f a preexisting disorder is noted upon entry into service, the veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder.” Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In such claims, the Veteran has the burden of showing that there was an increase or worsening of the disability during service in order to establish the presumption of aggravation. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Aggravation may not be found where the disability did not have an increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.C.S. § 1153; 38 C.F.R. §§ 3.304, 3.306. If the veteran meets the burden of demonstrating an increase or worsening of the disability in service, the disability is presumed to have been aggravated in service, and the burden is then on the government (the VA) to rebut that presumption. Horn, 25 Vet. App. at 234-5; 38 U.S.C. § 1153; 38 C.F.R. § 3.306. To rebut that presumption of aggravation, the VA must show by clear and unmistakable evidence that the worsening of the condition was due to the natural progress of the disease. Wagner, 370 F.3d at 1096; Horn, 25 Vet. App. at 235, n. 6; 38 U.S.C. § 1153. A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a). The occurrence of symptoms alone, without an increase in the underlying severity of the diagnosed disability, does not constitute aggravation of a disability. Id. Temporary or intermittent flare-ups of a pre-existing disease during service are not sufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). Consequently, to the extent the Veteran seeks compensation for aggravation of her back disability, to include thoracolumbar scoliosis, the burden is on her to demonstrate an in-service increase or worsening of her disability, which would serve to establish the presumption of aggravation. See Wagner, 370 F.3d at 1096; Jensen, 19 F.3d at 1417; Horn, 25 Vet. App. at 235, n. 6. Service treatment records (STRs) include a March 15, 2011 entry documenting the Veteran’s chief complaint of her lower back pain. The clinician diagnosed the Veteran with scoliosis and noted that her thoracic spine had an abnormal appearance. The examiner noted that the pain in the Veteran’s thoracolumbar spine was elicited by motion and that the Veteran experienced pain during standing movement. STRs include a March 29, 2011 entry documenting that the Veteran had “possible scoliosis of rotary fashion” and somatic dysfunction of the thoracolumbar regions. X-ray confirmation was not done because the Veteran pregnancy at the time. At a December 2011 VA examination, the Veteran stated that her scoliosis began in January 2010 and that she was diagnosed as she became further along in her pregnancy – at about the 4-month mark in March 2010. Specific maneuvers were performed during the examination to assess for scoliosis, but again, because of the Veteran’s pregnancy, the examiner was unable to obtain an x-ray at the time. Thus, there was no objective evidence of the progression or severity of the Veteran’s thoracolumbar scoliosis at this examination. At the same December 2011 examination, the Veteran reported experiencing pain, stiffness, and spasms. She said that the pain was moderate and localized and that she experienced the pain about three times a week, each time lasting for an hour. She said the pain could be exacerbated by physical activity, but it was relieved by rest. She also reported that she experienced flare-ups of her back condition that impacted the ability of her back to function, specifically that she had decreased ability to bend and lift. Because of her back condition, she was unable to perform gardening activities or push a lawnmower. The examiner noted a decreased range of motion with pain, tenderness, and spasms, but the examiner also noted that the Veteran’s thoracolumbar spine condition did not impact her ability to work. The Veteran said that, when she experienced the pain, she could function without medication. The Board acknowledges the Veteran’s statements that she experienced pain, stiffness, spasms, and limited ability to perform certain physical activities like bending or lifting. The Veteran is competent to give evidence where she has knowledge of facts or circumstances and where she conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). However, these statements speak only to symptoms of the Veteran’s back condition, not to the nature or status of her underlying diagnosed disability nor to whether the Veteran’s thoracolumbar scoliosis was chronically worsened beyond its natural progression by her active service. As discussed earlier, the occurrence of symptoms alone, without an increase in the underlying severity of the diagnosed disability, does not constitute aggravation of a disability. See Davis, 276 F.3d at 1345; 38 C.F.R. § 3.306(a). While the Veteran, as a lay person, is competent to speak to the pain and other symptoms she experienced in service, the question of whether the underlying disability worsened is a medical determination. See 38 C.F.R. § 3.159(a)(2). The Veteran lacks the adequate medical expertise in this case to render a medical opinion as to the nature or status of her diagnosed disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Jones v. West, 12 Vet. App. 383, 385 (1999). In the May 2013 VA examination, the VA examiner determined that the Veteran’s scoliosis clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The VA examiner reviewed the Veteran’s VA claims file and available records and noted that at two of the Veteran’s in-service examinations – in March 2011 and December 2011 – the examiners were unable to obtain x-rays to confirm the progression or severity of the Veteran’s scoliosis because she was pregnant at the time. Thus, the VA examiner found that there was insufficient objective in-service evidence of the progression of the Veteran’s pre-existing scoliosis. The VA examiner also determined that the condition was not aggravated beyond its natural progression by her military service. The Board finds the May 2013 VA examiner’s opinion to be the most probative evidence of record concerning whether the Veteran’s thoracolumbar scoliosis disability was aggravated by her time in service. The examiner’s rationale is logical and well-reasoned and based on consideration of the Veteran’s reported history, service treatment records, and post-service history. Thus, the Board is satisfied that the VA examiner’s opinion is competent, credible, persuasive, and probative for deciding this appeal. The Veteran stated in her July 2013 notice of disagreement (NOD) that she believes the long rucksack marches she was required to do in military training aggravated her back condition. In an April 2016 written statement, she said she believes her scoliosis was aggravated due to heavy lifting and over use of muscles during training, and she said she was not aware of her scoliosis until she entered the military. The Veteran noted on her February 2015 Form 9 that, at the time of her service, she weighed 100 pounds, while the average weight of a rucksack is 30 to 40 pounds. At an April 2016 hearing before the RO, the Veteran said the pain has been worsening now that she is off active service, and she had a hard time with physical activity, including doing sit-ups. However, she said her condition did not restrict her from doing her job. At a July 2018 hearing before the undersigned, the Veteran said she was diagnosed with scoliosis in 2009 after an examiner did the “bend over and touch your toes” test and saw a curvature in her spine. The Veteran said she started noticing aggravation of her scoliosis a little bit after basic training around 2010. She reported that, during basic training, she did a lot of heavy-duty things she was not used to, including the rucksack marches. She said that during the rucksack marches, she also had to wear boots, a helmet, Kevlar, and an IBA vest, which she says aggravated her back condition further. She says she developed a lump in her lower back where the rucksack was sitting on her back for long periods of time, and she noted that the lump was still there as of the date of the hearing. She also reported that, when she was deployed in 2010, she went to the M-9 range a few times and had to wear the heavy IBA vest and Kevlar, in addition to doing regular PT, walking, running, and lifting weights. She stated that she did not seek treatment at the time because the pain was inconsistent at first. The Veteran said she went on sick call in 2011 when the back spasms became more consistent. This is in line with the record, which includes notations from March 2011 and December 2011. The Veteran said her back condition has been bothering her since her time in service, and the pain has always been the same since then. She also said she is now unable to certain physical activities, such as lifting weights or carrying a lot of extra weight on her body, partly because she also has bad knees. Since service, she has stopped doing the activities she was doing in service, but her back continues to bother her. The Board acknowledges that these statements just described were made subsequent to the Veteran’s May 2013 VA examination. However, these statements again speak only to symptoms of the Veteran’s thoracolumbar scoliosis, not to the nature or status of her underlying diagnosed disability. See Davis, 276 F.3d at 1345; 38 C.F.R. § 3.306(a). The Veteran lacks the adequate medical expertise in this case to render a medical opinion as to the nature or status of her diagnosed thoracolumbar scoliosis. See 38 C.F.R. 3.159(a)(2); Jandreau, 492 F.3d at 1376-77; Jones, 12 Vet. App. at 385. The Board also recognizes that, at the July 2018 Board hearing, the Veteran submitted documentary evidence meant to additionally support her claim. However, the majority of the evidence and information she submitted at the hearing was duplicative and not new to the record. Most of the evidence submitted was already in the Veteran’s service treatment records and acknowledged by the VA examiner in the May 2013 VA examination. The submission of these items already of record does not affect the adequacy or probative weight of the VA examination and other evidence previously discussed. The Board acknowledges that the Veteran submitted a report from a June 2018 medical examination where the examiner found that the Veteran has a gentle dextroscoliosis of the thoracolumbar spine region. The examiner used the Cobb method and determined that the curvature in the thoracic spine as measured from the top of T8 through the bottom of L1 is 13.5 degrees. This examination, which was acknowledged earlier in this decision, speaks to the existence of the Veteran’s current disability. However, it does not speak to whether the Veteran’s thoracolumbar scoliosis disability was aggravated or worsened during or as a result of her time in service, which is the pertinent question at hand. In short, based on the foregoing, although the Veteran may have a current disability of gentle dextroscoliosis of the thoracolumbar spine region and she experienced symptoms of back pain during her service, the Board finds that the evidence does not show a worsening or increase in severity beyond its natural progression during the Veteran’s active service In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for service connection for a back disability, to include thoracolumbar scoliosis, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim for entitlement to service connection for aggravation of a back disability, to include thoracolumbar scoliosis, must be denied. See 38 U.S.C. §§ 1110, 1111, 1131, 1132, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306; Holton, 557 F.3d at 1366. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND In October 2011, along with the previously discussed claim of service connection for scoliosis, the Veteran also filed a claim for service connection for vulval intra-epithelial neoplasia (VIN 3). In a May 2012 rating decision, service connection for neoplasia was denied, while service connection for scoliosis was deferred. As mentioned earlier, service connection for scoliosis was denied in a May 2013 rating decision. In the July 2013 notice of disagreement (NOD) the Veteran appealed both the decision on her scoliosis and the decision that denied service connection for neoplasia. The RO adjudicated and denied service connection for both scoliosis and neoplasia in the September 2014 statement of the case (SOC). In the Form 9 received in February 2015, the Veteran noted that she was appealing the issues of her scoliosis and her neoplasia. At an April 2016 hearing before the RO, the parties discussed both the scoliosis and the neoplasia. In a July 2016 notification letter, the RO determined that they could not accept the Veteran’s July 2013 NOD on the neoplasia issue because it was received more than one year after the date the Veteran was notified of the May 2012 rating decision in which the RO denied service connection for neoplasia. The RO noted that the September 2014 SOC addressed the neoplasia issue but that the decision on that issue was in error because the Veteran’s July 2013 NOD was untimely. Thus, the RO removed the neoplasia issue from the appeal. In correspondence received on September 16, 2016, the expressed disagreement with the decision on the timeliness of notice of disagreement for vulval intra-epithelial neoplasia. In correspondence from September 29, 2016, the RO noted that the Veteran had expressed disagreement on the specific issue of timeliness of notice of disagreement for vulval intra-epithelial neoplasia, but asked the Veteran to submit her disagreement on the standardized NOD Form 21-0958. As requested, the Veteran then submitted an NOD on the specific issue of timeliness of notice of disagreement for neoplasia in November 2016. The RO issued a letter in December 2016 saying they could not accept the Veteran’s November 2016 NOD. However, this letter erroneously related the November 2016 NOD to the RO’s May 2012 decision denying service connection for neoplasia. In the November 2016 NOD, the Veteran was expressing disagreement with the RO’s July 2016 decision on the specific issue of timeliness of the July 2013 NOD for neoplasia. Because the November 2016 NOD on the specific issue of timeliness of notice of disagreement for neoplasia was submitted within a year of the July 2016 notification letter in which the RO notified the Veteran of their decision on that specific issue, the November 2016 NOD is timely on that issue. However, as of this decision, no statement of the case has been issued with respect to the issue of timeliness of notice of disagreement for neoplasia. Consequently, the Board must remand that issue at this time in order to issue that statement of the case on that issue. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9(c) (2017). Accordingly, the case is REMANDED for the following action: Furnish the Veteran and her representative an SOC with regard to the specific issue of timeliness of notice of disagreement (NOD) for vulval intra-epithelial neoplasia. The issue should be returned to the Board only if a timely substantive appeal is received. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Dawn A. Leung, Associate Counsel