Citation Nr: 19115437 Decision Date: 03/01/19 Archive Date: 03/01/19 DOCKET NO. 15-34 109 DATE: March 1, 2019 ORDER Entitlement to service connection for a low back disability, diagnosed as spondylolisthesis with bilateral foraminal narrowing, is granted. FINDING OF FACT The Veteran’s low back disability, diagnosed as spondylolisthesis with bilateral foraminal narrowing, is etiologically related to service. CONCLUSION OF LAW The criteria to establish service connection for a low back disability, diagnosed as spondylolisthesis with bilateral foraminal narrowing, have been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1987 to May 2007. The Veteran appeals a January 2013 rating decision by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in June 2018. A transcript is of record. A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). When no pre-existing medical condition is noted upon entry into service, a Veteran is presumed to have been in sound condition upon entry. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both pre-existing and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. “The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition.” Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing to Wagner, 370 F.3d at 1096). Here, service treatment records (STRs) do not reveal a pre-existing low back disability prior to the Veteran’s entry into active service. The Veteran’s March 1987 entrance examination in the STRs detail the Veteran’s 1980 motorcycle accident. However, the March 1987 reviewing medical officer stated the Veteran’s back was normal. Furthermore, the Veteran’s private physician at the time provided a letter stating his back injury healed and there were no restrictions on his activity. See April 1982 Dr. W.C. opinion. Thus, as it specifically pertains to the Veteran’s low back disability, he is presumed to be in sound condition at entry. To that end, VA would be required to rebut that presumption by clear and unmistakable evidence. The Veteran was afforded an November 2012 VA examination and the report emphasized the Veteran’s 1980 motorcycle accident. However, the Board notes that the motorcycle accident only dealt with the L1 vertebrae and not the current vertebrae at issue. Additionally, the November 2012 VA examiner ignores the opinions of the entrance reviewing medical officer and Dr. W.C. who generally found the Veteran’s back to be within normal limits. The Board finds that the November 2012 examination does not rebut the presumption of soundness as the examiner did not otherwise explain that the Veteran’s low back disability clearly and unmistakably pre-existed service. As the presumption of soundness has not been rebutted by clear and unmistakable evidence, the question becomes one of direct service connection. The Veteran has a current low back disability. See November 2012 VA examination report. There are several notations of low back injuries and pains in the Veteran’s STRs. See, e.g., November 1994, February 1996, and March 1999 STRs. The lay and medical evidence is competent and credible to show recurrent back pain since sustaining in-service injuries. The Veteran has consistently held he did not have back pains until 1999 while in service. See June 2018 Board Hearing Transcript, at p.3. Furthermore, the Veteran began seeking treatment for his low back pain within a year of separating from service. See April 2008 Dr. S.Z. treatment records. Although the November 2012 VA examiner submitted a negative opinion, the Board does not consider the opinion probative since the examiner inaccurately stated that a low back disability was noted on the Veteran’s enlistment examination and therefore applied the incorrect standard. For the above reasons, the evidence is at least evenly balanced as to whether the Veteran’s current low back disability is related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for a low back disability, diagnosed as spondylolisthesis with bilateral foraminal narrowing, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Zheng, Associate Counsel