Citation Nr: 19174176 Decision Date: 09/24/19 Archive Date: 09/24/19 DOCKET NO. 15-04 961 DATE: September 24, 2019 ORDER Entitlement to service connection for a low back disability is denied. Entitlement to service connection for a right lower extremity disability, to include as secondary to low back disability (claimed as right hip condition) is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran clearly and unmistakably had a pre-existing lumbar spine disability and that it was clearly and unmistakably not aggravated beyond its natural progression by his service. 2. The Veteran’s right lower extremity disability, to include as secondary to low back disability (claimed as right hip condition) is not attributable to the Veteran’s military service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 2. The criteria for entitlement to service connection for a right lower extremity disability, to include as secondary to low back disability (claimed as right hip condition) have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in United States Army from October 1969 to April 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the September 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to service connection for a low back strain and service connection for a right hip condition. The Veteran testified at an October 2017 Board videoconference hearing before the undersigned Veterans’ Law Judge. A transcript of the hearing is associated with the electronic claims file. Previously, the Board remanded the issues on appeal for additional development in June 2018 and December 2018. This appeal has been advanced on the Board’s docket pursuant to 38 U.S.C. § 7107(a)(2) (2012); 38 C.F.R. § 20.900(c) (2018). Duty to Notify and Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2018). The Board notes that in January 2019, the Veteran requested a new examination because the September 2018 examiner “told me to sit down, stand up, touch my toes, and to have a nice day.” See VA Form 27-0820, January 2019. The Board finds that a new physical examination is not necessary in order to determine this decision. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When determining service connection, a presumption of soundness ordinarily applies. 38 C.F.R. § 3.304 (b). Pursuant to such presumption, 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 and was not aggravated by such service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Only such conditions as are recorded in examination reports are to be considered as noted. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. The government may show a lack of aggravation 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. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1096. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 1. Entitlement to service connection for a low back disability The Veteran asserts that as a heavy wheel mechanic, he was required to do heavy lifting (over 100 pounds) on an occasional basis with frequent or constant lifting in excess of 50 pounds every day, which aggravated his pre-existing low back condition. See VA Form 21-4138, May 2012. In an October 1969 enlistment medical history questionnaire, the Veteran reported that he had injured his lower back in December 1968 and February 1969 and had worn a back support brace until July 1969. However, the examiner found that the Veteran was asymptomatic at the time of the examination and noted no spinal abnormalities. Therefore, the Veteran was noted to have been in sound condition with respect to the lower back at entry on active duty. Records were obtained in May 2012 that showed pre-service injuries in 1968 and 1969 as a logger when a log hit him on the right back and hip. A March 1969 record noted “I think [the Veteran] has had an acute lumbosacral sprain from which he is recovering” and that x-rays “show no evidence of bone injury.” A May 1969 record noted an impression of “[m]inimal objective findings.” A June 1969 record noted that the Veteran “continues to complain of pain and discomfort in his leg, hip and back.” It was noted that the Veteran had “[m]inimal physical disability demonstrable” but that that the Veteran “should not return to his former type of work because of the probability of reaggravation of his back condition and recurrence of symptoms.” An August 1969 workman’s compensation record referenced a permanent partial disability of 40 “degrees” and referenced disability payments, to include in October 1969. As such, the presumption of soundness is rebutted by clear and unmistakable evidence of a pre-service back disability, notwithstanding that he appeared to have recovered at the time of enlistment. The Veteran’s service treatment records (STRs) reflected several episodes of complaints and treatment for back strain. X-rays obtained in January 1971 and November 1971 were normal. An April 1972 discharge physical examination noted no spinal abnormalities but with little explanation and no history taken from the Veteran. In July 1972, a VA examiner provided a more detailed report, noting normal mobility, no irregularities, no tenderness, and no instability, and concluded that the Veteran had none of the symptoms that he had prior to service. However, a concurrent X-ray showed “very hazy appearance to the sacroiliac joints, the appearance very likely indicating rheumatoid spondylitis. The lumbosacral spine is otherwise normal.” In September 2012, a VA physician’s assistant (PA) determined that there was no aggravation in service because the symptoms in service were the same as after the injury prior to service and because none were noted in the 1972 VA examination. Moreover, the Veteran sustained additional injuries after service. In March 2015, private treatment records were added to the Veteran’s claims file. See Medical Treatment Record-Non-Government Facility, March 2015. In August1990, the Veteran was seen after falling while water skiing. Id. at p.15 of 15. In June 1999, the Veteran reported low back pain after attempting to catch a falling metal insert weighing about 40 to 50 pounds. Id. at p.13 of 15. The Veteran reported that he had back surgery in 1984 and since that time his back had been doing pretty well with occasional episodes of back pain. Id. In June and December 2018, the Board sought additional medical opinions to determine whether there was clear and unmistakable evidence of a pre-service back disability and if so, whether it was clearly and unmistakably not aggravated during active duty. In a September 2018 VA examination and in an April 2019 addendum, the VA PA noted a review of the file including the STR episodes of low back strain and his duties involving lifting and carrying. The PA also cited the July 1972 VA examination including the X-ray that likely indicated rheumatoid spondylitis. The PA found that there was clear and unmistakable evidence of a pre-service back disorder and that it would be expected that he would experience residual soreness and pain that would progress over time during service. The Veteran’s complaints were consistent with this progression, and that he had no limitations shown in the July 1972 VA examination shortly after service. The PA also noted that because the suggestion of rheumatoid disease was not diagnosed and confirmed for decades after service, the X-ray report in service was not accurate. The PA found that the pre-service back disorder was clearly and unmistakably not aggravated by service. In September 2018, Social Security Administration records were added to the Veteran’s claims file. See Medical Treatment Records-Furnished by SSA, September 2018. In a 2008 disability report, the Veteran reported working as a plant manager at a concrete plant from 1977 to January 2007 where he lifted 85 pounds of cement, 35 pound buckets of sealant, and at times lifting 100 pounds or more. Id. at p.33 of 48. The Board finds that the evidence weighs against a finding that the Veteran’s pre-existing low back injury was aggravated by service. While he has provided many statements indicating that his level of activity significantly worsened after service, the Board does not find these statements as credible as the contemporaneous evidence which does not show aggravation. The evidence of record reflects that five years after his military service, the Veteran was working at a job that required him to carry 35-50 pounds on a regular basis and at times, loads of 100 pounds or more. Additionally, the Veteran remained at that job for almost thirty years. Furthermore, although the Veteran reported having back surgery in 1984, during the September 2012 VA examination, the Veteran reported that he reached for a falling oxygen bottle and ruptured a disc in his back. See VA Examination, September 2012 at p.2 of 17. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s pre-existing low back injury was aggravated by service, and service connection is therefore denied. 2. Entitlement to service connection for right lower extremity disability, to include as secondary to low back disability (claimed as right hip condition) The Veteran asserts that his right hip condition is secondary to his low back condition. See VA Form 21-4138, May 2012. In September 2012 the Veteran was diagnosed with lumbar spine degenerative changes with right lower extremity radiculopathy. See VA Examination, September 2012. The Veteran denied any injury to his right hip and reported that all issues associated with the right hip was radiating pain when is back is in a flared up state. Id. The Board notes that there is no evidence of record to suggest that the Veteran was treated for or reported any symptoms that would suggest an in-service right hip injury. Since the second element of direct service connection has not been met, direct service connection is not warranted and is therefore, denied. A disability may be service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service connected disease or injury, 38 C.F.R. § 3.310(a) or (2) aggravated by an already service connected disease or injury, 38 C.F.R. § 3.310(b). The Veteran’s right hip condition has been determined to be a symptom of his non-service connected low back radiculopathy, the criteria for secondary service connection have not been met. Therefore, service connection for right lower extremity radiculopathy (claimed as right hip condition) on secondary basis is not warranted and is therefore, denied. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.