Citation Nr: 18154918 Decision Date: 12/04/18 Archive Date: 11/30/18 DOCKET NO. 04-36 871 DATE: December 4, 2018 REMANDED Entitlement to service connection for a low back disorder with neuropathy, to include a lumbosacral strain, spondylolisthesis and spondylosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from October 1966 to September 1968. This matter was previously addressed in an August 2017 decision, in which the Board denied the claim for service connection. The Veteran appealed the denial of his claim to the United States Court of Appeals of Veterans Claims (Court). In a June 2018 Order, the Court granted a Joint Motion for Remand, which moved to vacated the August 2017 Board decision, and remanded the underlying claim for compliance with the Joint Motion. 1. Entitlement to service connection for a low back disability with neuropathy, to include a lumbosacral strain, spondylolisthesis and spondylosis is remanded. The Veteran claims his current low back disorder is related to his active service. He contends that his current low back disorder is a result of a back injury sustained in April 1967 whiling lifting heavy projectiles. He reports that he has continued to experience low back pain since then. In the June 2018 Joint Motion for Remand, the parties asserted that the Board failed to provide adequate reasons and bases for why the presumption of soundness did not apply to the Veteran’s back, and further deemed that the July 2016 VA medical opinion to be inadequate, which warranted vacatur and remand for additional development. Specifically, the parties to the Joint Motion for Remand determined that there was conflicting medical evidence on whether the Veteran had a low back disorder that pre-existed his service that should be resolved. In addition, the partied found that the July 2016 VA examiner failed to consider the Veteran’s lay statements of in-service back pain and continuity of back pain since service. Accordingly, a remand is needed to obtain an addendum VA medical opinion in compliance with the directives of the Joint Motion for Remand. Notably, the record contains an August 1966 statement from the Veteran’s treating physician (Dr. A.) who recorded that the Veteran had fallen approximately three years previously and hurt his back, fractured his ribs, and dislocated his clavicle. Dr. A. noted that x-rays of the lumbar spine showed some sacralization at L4 and L5 and the spinal process of L4 was off center to the left. Otherwise, there was no bony pathology. The Veteran’s service treatment records reflect that, on his August 1966 induction medical history report, he marked that he had, or had been advised to have, a back operation. He also stated that he had recurrent back pain. The examining physician indicated that the Veteran had back pain with heavy lifting, which was not considered disqualifying. Pertinently, the Veteran’s spine was evaluated as normal on his August 1966 enlistment examination, despite his reported medical history of recurrent back problems. An August 9, 1968 service treatment records shows that the Veteran complained of a long history of back pain with radiation up the spine. Upon his August 13, 1968 separation examination, the Veteran’s spine was normal on clinical evaluation. The associated report of medical history shows he did report recurrent back pain as well as back trouble when he injured it in April 1967 in the field. The examining physician indicated that the Veteran had recurrent back pain since age 15 when he fell on ice and hit his back on concrete steps. It was further noted that he had injured his back in April 1967 by carrying projectiles and it had bothered him off and on since then, but he did not have pain at the present time. The Veteran’s date of separation from active military service was September 17, 1968. On the day before his separation from active service, September 16, 1968, the Veteran signed a statement of medical condition form on which he said that there had been no change in his medical condition since his medical examination for separation on August 13, 1968. Following the Veteran’s service discharge, there is lay evidence from the Veteran, some of his relatives, and some of his friends that the Veteran had continued complaints and treatment for recurrent back problems since his period of service. Notably, the Veteran initiated a claim for back problems in January 1975; however, the first available post-service medical evidence of record that shows chronic low back problems comes in 2002. VA regulations provide that 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 (2018); 38 C.F.R. § 3.304 (b) (2018). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The two parts of this rebuttal standard are referred to as the ‘preexistence prong’ and the ‘aggravation prong.’ Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). The aggravation prong may be met by establishing 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; see also 38 U.S.C. § 1153. If this burden is met, then the Veteran is not entitled to service-connected benefits, and, conversely, where the presumption is not rebutted, the Veteran’s claim is one for service connection, and not aggravation. Wagner, 370 F.3d at 1096. In accordance with the Joint Motion for Remand, the Board finds that a remand is needed to obtain another VA medical opinion on whether there is clear and unmistakable evidence that the Veteran had a low back disorder that pre-existed his period of service and was not aggravated therein, and if not, whether he has current low back disorder that is related to his period of service, to include in-service injury, with considerations the Veteran’s lay statements on continuity of back pain and treatment for back pain since service. The matter is REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding the etiology of the Veteran’s current low disorder. Based on a review of the electronic claims file, to include the Veteran’s service treatment records, lay statements and testimony, and treatment records, and previously VA examination and medical opinion reports, the examiner should provide opinions on the following: (a.) Whether there is clear and unmistakable evidence that the Veteran had a lower back disorder upon his entry into service, and if so, whether it was clear and unmistakable that such low back disorder was not aggravated by his service? Clear and unmistakable evidence means evidence that is undebatable or that cannot be mistaken or misunderstood. A pre-existing 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 the increase in disability is due to the natural progress of the disease. (b.) If the answer to that question is no, then the examiner is requested to opine whether it is at least as likely as not (probability of fifty percent or greater) that the Veteran’s current low back disorder had an onset during his service or within the first year after his separation from service, or is otherwise related to any in-service disease, event, or injury during that period? (Continued on the next page)   The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, a reason for doing so must be provided. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Murray, Counsel