Citation Nr: 18158475 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 14-27 981 DATE: December 17, 2018 ORDER Entitlement to service connection for a back disability is denied. FINDINGS OF FACT 1. The Veteran was not provided with an examination on his entry onto active duty in November 1975 and September 1977. 2. The preponderance of the evidence shows a back disability diagnosed as scoliosis was not aggravated by either of the Veteran’s periods of active duty. 3. The preponderance of the evidence shows that all back disabilities other than scoliosis did not pre-exist either period of the Veteran’s active duty, were not present during either period of active duty or until many years thereafter, and were not related to either period of active duty or to an incident of service origin. CONCLUSION OF LAW The criteria for service connection for a back disability have not been met. 38 U.S.C. §§ 101, 106, 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 4.9. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from November 1975 to December 1975 and from September 1977 to December 1977. The Veteran also had service with a Reserve component. In October 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Video Conference hearing. A transcript of this hearing is of record. In a February 2016 decision, the Board of Veterans’ Appeal (Board) reopened and remanded the claim of entitlement to service connection for an acquired psychiatric disability, to include schizophrenia and depression, and denied service connection for a back disability. In a May 2016 rating decision, the regional office (RO) granted the Veteran service connection for a schizoaffective disorder. As this represents a total grant of benefits sought on appeal, the Board finds that the issue of entitlement to service connection for an acquired psychiatric disability is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The Veteran appealed the February 2016 Board decisions that denied of service connection for a back disability to the United States Court of Appeals for Veterans Claims (Court). In December 2016, the Court issued an order granting a November 2016 Joint Motion for Partial Remand which served to vacate and remand the claim back to the Board for action in compliance with the Joint Motion. In April 2017, the Board remanded the claim for development in accordance with the Joint Motion for Partial Remand. Specifically, the Board remanded the appeal to obtain an additional statement from the Veteran regarding any in-service back injury and another nexus opinion. Tellingly, in substantial compliance with the Joint Motion for Partial Remand and Board remand, the Veterans' Administration (VA) in September 2018 obtained the requested etiology opinion and in October 2018 obtained the requested back injury statement from the Veteran. See 38 U.S.C. §§ 5103, 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Service Connection Claim Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Additionally, service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing active duty for training (ACDUTRA) or from injury incurred or aggravated while performing inactive duty training (INACDUTRA). 38 U.S.C. §§ 101(24), 106, 1110, 1131. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. However, presumptive periods do not apply to ACDUTRA or INACDUTRA. See Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of INACDUTRA during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C. §§ 101(21) and (24); 38 C.F.R. §§ 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty performed by member of the National Guard of any State. 38 C.F.R. § 3.6(c)(3). Moreover, the law provides that a Veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed to be in sound condition when he or she entered into military service, except for conditions noted on the entrance examination. See 38 U.S.C. §§ 1111, 1132. Only such conditions as are recorded in entrance examination reports are to be considered as “noted,” and a history of pre-service existence of conditions recorded at the time of examination does not constitute a “notation” of such conditions. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). In this regard, in order to establish service connection for the claimed disorders, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is “satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim.” See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). With the above laws and regulations in mind, the record shows the Veteran’s back disability being diagnosed as scoliosis (see, e.g., VA treatment records dated in August 2010 and September 2010; VA examination dated in September 2018) as well as spinal stenosis, degenerative disease, lumbosacral strain, and neurogenic claudication from lumbar stenosis status post L2 to L5 laminectomy (see, e.g., treatment records dated in September 2013, October 2013, and November 2015; lumbar spine magnetic resonance imaging evaluations (MRIs) dated in September 2013, January 2014, April 2014, and June 2015; operate report dated in July 2015; and VA examinations dated in July 2014 and September 2018). a. Scoliosis Given the fact that scoliosis is a congenital disability (see 38 C.F.R. §§ 3.303(c), 4.9), the Board will first address the question of whether this disability pre-existed either of the Veteran’s periods of active duty and was aggravated by that military service. In this regard, while the record contains May 1975 and June 1977 service examinations which noted that the Veteran’s spine was normal, it is negative for an examination upon his entry onto active duty in November 1975 and September 1977. The statute provides that the presumption applies when a Veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Thus, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010) (citing Crowe v. Brown, 7 Vet. App. 238, 245 (1994)) (holding that the presumption of sound condition “attaches only where there has been an induction examination in which the later-complained-of disability was not detected”). In the absence of such examinations, there is no basis from which to determine whether the claimant was in sound condition upon entry into either of his periods of active duty. See Smith v. Shinseki, 24 Vet. App. at 45; see also Crowe. Therefore, the Board finds that the presumptions of soundness and aggravation do not apply to the claim of service connection for a back disability diagnosed as scoliosis. Id. Accordingly, the Board will next consider if his back disorder diagnosed as scoliosis was aggravated by either of his periods of active duty. See 38 U.S.C. §§ 1111, 1132. In other word, as to scoliosis, the Board finds that to establish service connection for this back disability the burden falls on the appellant to show aggravation once the record showed that the Veteran was not afforded an examination upon entry onto his two periods of active duty. See Smith, supra. In this regard, service treatment records during both Veteran’s periods of active duty are negative for a back injury as well as negative for complaints, diagnoses, or treatment for scoliosis. Furthermore, the Board notes that the record is negative for medical evidence showing that the Veteran’s pre-existing scoliosis was aggravated beyond its’ normal progression by either of the appellant’s periods of active duty. See 38 U.S.C. §§ 1111, 1131, 1132; Also see Owens, supra. In fact, the September 2018 VA examiner opined that the Veteran’s scoliosis was not aggravated by either of his periods of active duty service. Moreover, the Board finds this opinion the most probative evidence of record because it is supported by a review of the record on appeal, an examination of the Veteran, and citation to evidence found in the record. See Owens, supra. The medical opinion is also not contradicted by any other medical evidence of record. See Colvin, supra. In addition, the Board notes that in many writings to VA, including the post-remand statement received in October 2018, the Veteran reported that he had problems with his back while on active duty due to dextroscoliosis as evidence by the fact that he was unable to pull up on bars. However, the Board finds that the Veteran is not competent to provide an aggravation opinion because he does not have the required medical expertise to provide an answer to this complex medical question (such as the issue he is attempting to address). See Davidson, supra. Accordingly, while a back disability diagnosed as scoliosis pre-existed both his periods of active duty, the Board finds that the preponderance of the evidence shows that it was not aggravated by either period of active duty and service connection for this disability is therefore denied. 38 U.S.C. §§ 1111, 1131, 1132, 5107(b); 38 C.F.R. §§ 3.102, 3.303. b. All other Back Disabilities As to the Veteran’s other back disabilities (i.e., spinal stenosis, degenerative disease, lumbosacral strain, and neurogenic claudication from lumbar stenosis status post L2 to L5 laminectomy), the first question for the Board to consider is whether they are directly due to an injury while on INACDUTRA or a disease or injury while on ACDUTRA or active duty. See 38 U.S.C. §§ 101(24), 106, 1110, 1131; 38 C.F.R. § 3.303; Hickson, supra. In this regard, the Board finds that the Veteran is competent to report on events he experienced like injuring his back and symptoms of a disability like pain and lost motion because they come to him via his own senses. See Davidson, supra. Moreover, and as noted in the November 2016 Joint Motion for Partial Remand, the Veteran appears to relate his current back disabilities to an in-service injury. Specifically, in a September 19, 2013, treatment record the Veteran reported that he recalled vaguely that he injured his back in the military. Similarly, at his October 2015 personal hearing the Veteran testified about a possible in-service back injury-“I didn’t go to sick call for my back but I had to carry heavy equipment’s back to (...inaudible) . . . So when they discharged me they gave me an honorable medical discharge of physical disability.” The Board also notes that in many writings to VA, including the post-remand statement received in October 2018, the Veteran reported that he had problems with his back while on active duty as evidence by the fact that he was unable to pull up on bars. However, service treatment records are negative for a back injury while on INACDUTRA as well as negative for a back injury or disease as well as negative for complaints, diagnoses, or treatment for a back disability while on ACDUTRA and/or active duty. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). In other words, notwithstanding the Veteran’s reports of an in-service back injury as well as problems carry out physical training because of his back while on active duty (i.e., reporting he remembered hurting his back as well as having problems pulling up on a bar all while on active duty) (see Davidson, supra), the Board finds that the most probative evidence of record are the service treatment records which are negative for a back injury while on ACDUTRA, INACDUTRA, or active duty as well as negative for an injury or disease that caused as back disability while on ACDUTRA or active duty. Therefore, service connection is denied based on in-service incurrence under 38 C.F.R. § 3.303(a). See 38 C.F.R. §§ 101(24), 106, 1110, 1131; Owens, supra. The record also does not show the Veteran being diagnosed with arthritis in the back in the first post-service year following either of his periods of active duty. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Similarly, the record does not show that the Veteran had a continued problem with his other back disabilities in and since either period of his active duty service. In fact, as reported above, the service treatment records are negative for a back injury as well as negative for diagnosis of a back disability. Likewise, the post-service record, including April 1976 and April 1979 hospitalization summaries (psychiatric hospitalizations), is negative for any complaints, diagnoses, or treatment for his other back disabilities until 2005 or latter; decades after his 1977 separation from his second period of active duty. See 38 U.S.C. §§ 101(24), 106, 1110, 1131; 38 C.F.R. § 3.303(b). Simply stated, both service and post-service medical records provide evidence against this claim that he has had a back problem for forty years, outweighing his recollections of events. The best evidence of record indicates a back problem that began many years after service, with no connection to service. Furthermore, the record is negative for a competent and credible opinion that shows that any of the Veteran’s other back disabilities are due to his military service. See 38 U.S.C. §§ 101(24), 106, 1110, 1131; 38 C.F.R. § 3.303(d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein). In fact, the July 2014 and September 2018 VA examiners opined that the Veteran’s other back disabilities were not due to his military service. The Board finds these opinions are the most probative evidence of record because they are supported by a review of the record on appeal, an examination of the Veteran, and/or citation to evidence found in the record. See Owens, supra. The medical opinions are also not contradicted by any other medical evidence of record. See Colvin, supra. In addition, as above, the Board finds that the Veteran is not competent to provide a nexus opinion because he does not have the required medical expertise to provide an answer to this complex medical question. See Davidson, supra. There is simply now a large amount of evidence against the claim that the current back disability began during service that the Board can not, unfortunately, ignore. Accordingly, the Board finds that the preponderance of the evidence is also against the Veteran’s claim of service connection for his other back disabilities. 38 U.S.C. §§ 101(24), 106, 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel