Citation Nr: 1806825 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-17 949A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for a back disability, to include as secondary to left flank shrapnel wound. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Christine E. Grossman, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from January 1968 to April 1971. This matter comes before the before the Board of Veteran's Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which denied a petition to reopen a previously denied claim of entitlement to service connection for a back disability. Jurisdiction over this matter currently resides with the RO in Denver, Colorado. In June 2017, the Board reopened the claim and remanded this matter to obtain any other relevant treatment records as well as afford the Veteran a VA examination. The Board is satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141 146 47 (1999); Stegall v. West 11 Vet. App. 268, 271 (1998). This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing systems. Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records. FINDINGS OF FACT 1. The Veteran has a congenital defect in the spine that preexisted his military service. 2. There was no superimposed injury or disease that aggravated or worsened the Veteran's congenital low back defect during his military service. 3. The Veteran's non-congenital low back disabilities did not manifest during active service or within one year of separation therefrom, and is not otherwise related to service, to include as proximately due to or chronically aggravated by the Veteran's service-connected left flank shrapnel wound. CONCLUSION OF LAW The criteria for service connection for a low back disability, to include as secondary to left flank shrapnel wound, have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires competent evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition, service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. As types of arthritis are considered to be chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As an alternative to direct service connection and aggravation, service connection may be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Under C.F.R. § 3.304(b), the 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 to service and was not aggravated by such service. Only such conditions as are record in examination reports are to be considered as noted. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238 (1994); Hunt v. Derwinski, 1 Vet. App. 292 (1991). If a presumption of aggravation under section 1153 arises, due to an increase in a disability in service, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen v. Brown, 19 F.3d 1413 (Fed. Cir. 1994); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air 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. § 1153; 38 C.F.R. § 3.306(a). The presumption requires an increase in the severity of the preexisting condition, as distinguished from the mere recurrence of manifestations of the pre-service condition. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Analysis The Veteran contends that he has had back issues since he incurred a shell fragment would while in service in 1969. The evidence of record consists of service treatment records; VA and private treatment records; a May 2004 VA examination for the Veteran's low back and leg pain; lay statements from the Veteran and his sister; statements from the Veteran's representative; and a September 2017 VA examination for the Veteran's thoracolumbar spine (back) condition. The Veteran has been diagnosed with multiple low back conditions. The first which will be addressed is one which raised the question of whether the Veteran has a low back disability which preexisted service. A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active 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 and was not aggravated by such service. See 38 U.S.C. § 1111 (2012). In the Veteran's May 2004 VA examination, the examiner noted that the Veteran's lumbarization of S1 is congenital. As the VA examiner diagnosed the Veteran's low back disability as congenital and therefore present at birth, the Board finds that there is clear and unmistakable evidence that the Veteran's low back disability preexisted his military service. The question now turns to whether the Veteran's low back disability is classified as a congenital "defect" or "disease." VA distinguishes between congenital or developmental "defects" and "diseases" for service connection analysis. A congenital or developmental "defect" is not considered a disease or injury for VA purposes. As such, a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111. O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009). Nevertheless, if a congenital or developmental defect is subject to a superimposed disease or injury during service, service connection will be granted for any resultant additional disability. VAOPGCPREC 82-90 (July 1990), p. 3. In contrast, the presumption of soundness upon service entry does apply to congenital or developmental "diseases" that are not noted in the service entrance examination. Quirin, 22 Vet. App. at 396. Service connection is allowed for a congenital or developmental disease if it first manifested during service, or if it preexisted service and was aggravated by service. VAOPGCPREC 82-90, p. 2. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air 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 process of the disease. 38 C.F.R. § 3.306(a). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent service. 38 C.F.R. § 3.306(b). In the May 2004 VA examination, the examiner classified the Veteran's lumbarization of S1 as a congenital defect, not a disease. As the Veteran's low back disability is classified as a congenital defect, the presumption of soundness does not attach with regard to this condition. Therefore, the question is whether there was a superimposed injury or disease to the Veteran's congenital defect during service. The Veteran contends that his shell fragment wound to the left flank that he suffered in service constitutes a superimposed injury to his congenital defect of the low back. With respect to whether this event in service constitutes a superimposed injury to the Veteran's current back disability, the Board finds the Veteran's September 2017 VA examination highly probative. In the September 2017 examination, the examiner opined that it was less likely than not that the Veteran's shell fragment wound injury superimposed or aggravated his lumbarization of S1, as the congenital defect was not diagnosed until after several decades. Further, the Veteran's December 1969 separation examination indicated the Veteran's spine was normal and no back condition was reported at the time of the injury, or otherwise in service. The Veteran was not diagnosed with a back condition until 30 years after separation from active duty. In light of the above discussion, the Board finds that the most probative evidence of record does not show that the shell fragment wound the Veteran suffered in service caused a superimposed injury to the Veteran's congenital back condition or aggravated it. There is no indication of any increase in severity in service, as any problems from the left flank shrapnel wound did not result in aggravation or worsening of the back condition. As a result, there is no in service incurrence of an injury or event with respect to his diagnosed congenital defect, lumbarization of S1, and without an inservice injury or event, service connection cannot be granted. As noted above, aside from lumbarization of S1, the Veteran has been diagnosed with other back disabilities. The Board now turns to whether his diagnosed back disabilities other than lumbarization of S1, should be service-connected on either a direct basis or as secondary to his service-connected left flank shrapnel wound. In the September 2017 VA examination, the examiner noted that the Veteran has been diagnosed with degenerative arthritis of the spine, intervertebral disc syndrome, spinal stenosis, and extreme lateral interbody fusion at lumbar level 3-4 due to residuals of surgery. Thus, the first element of service connection, a current disability, has been met for both direct and secondary service connection purposes. Turning to service connection on a direct basis, the Veteran has an in-service event, as the Veteran contends that his back pain is the result of the shell fragment wound to his left flank that he incurred in 1969 while in service. With regard to a nexus between the current disability and in service event, the May 2004 and September 2017 examiners provided negative opinions. In the May 2004 VA examination, the examiner opined that there was no direct connection between his left back pain due to the shrapnel injury and his current right sided pain secondary to lumbar spine degenerative arthritis and herniated disc. The examiner reasoned that his right-sided back pain is partly due to the injury he sustained when, per his October 2003 examination, he was attempting to move an engine and felt a pulling sensation on his back. In September 2017, the VA examiner determined that the Veteran's back disabilities were less likely than not incurred in or caused by his military service. The examiner noted that the Veteran's spine was normal in his December 1969 separation examination. The record shows that the Veteran was not diagnosed with a back disability for over 30 years following his separation from active duty. With regard to secondary service connection, the Veteran contends that his back disabilities were caused by his service-connected left flank shrapnel wound. However, in the May 2004 VA examination, the examiner noted that the Veteran's right-sided low back pain and radiculopathy/neuropathy was not related to his service-connected left flank shrapnel wound. Rather, the right-sided back pain was due to the lumbarization of S1, a congenital defect. The degenerative joint disease was noted by the examiner to be hereditary and not secondary to the shell fragment wound sustained in service. The examiner also indicated that the herniated disc and spinal stenosis were in part related to a post-service back injury in October 2003, but also in part to the nonservice-connected congenital lumbarization of S1. In addition, the September 2017 VA examiner opined that it is less likely than not that the Veteran's intervertebral disc syndrome and spinal stenosis were related to the Veteran's shell fragment wound incurred in 1969. The Veterans and his sister have asserted that the Veteran's back condition is related to his active service, and specifically, to his shell fragment wound in and post service. While the Board has considered with sympathy the Veteran's and his sister's lay statements, it cannot afford probative weight to their assertions with respect to the etiology of his back disabilities in this case. While they are competent to report experiences and symptoms since service, they are not competent to provide a nexus opinion regarding the nature and etiology of his back disabilities. Jandreau v. Nicholson, 492 F. 3d 1372 (2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). The Veteran's reports of his back pains are relevant, competent, and credible; however, the question of the etiology of his back disabilities is a complex medical finding that is limited to the purview of someone with medical knowledge and training, such as the VA examiners in this case. Thus, the Veteran's assertions of the etiology of his back disabilities are not competent evidence. The VA examiners in May 2004 and September 2017 provided the most probative evidence as to the etiology of the Veteran's back disabilities. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). The rationale were sufficient and accurately portrayed the evidence and addressed the relevant facts. It is clear that the examiners reviewed the entire claims file and considered the Veteran's contentions. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). In sum, the preponderance of the evidence does not show that the Veteran's back disabilities are related to his active service; manifested within one year from the date of separation from service; or that they were caused by his service-connected disability. Since the preponderance of the evidence is against the claim, service connection for a back disability is not warranted. U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to service connection for a back disability, to include as secondary to a left flank shrapnel wound, is denied. ____________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs