Citation Nr: 20007433 Decision Date: 01/29/20 Archive Date: 01/29/20 DOCKET NO. 16-32 038 DATE: January 29, 2020 ORDER New and material evidence having not been received, the application to reopen the claim of service connection for orthostatic proteinuria is denied. Service connection for plantar warts is denied. Service connection for cervical spondylosis is denied. An effective date prior to March 9, 2012 for the award of a permanent and total disability rating for nonservice-connected pension is denied. REMANDED Entitlement to service connection for headaches, including migraine and tension variants and claimed as chronic headaches, is remanded. Entitlement to service connection for a left shoulder disability, claimed as left shoulder strain, is remanded. Entitlement to service connection for a lumbar spine disability, claimed as scoliosis, is remanded. FINDINGS OF FACT 1. An unappealed December 1976 Board decision denied the Veteran’s appeal for restoration of service connection for orthostatic proteinuria; the Veteran did not appeal or seek reconsideration of this decision. 2. Evidence received since the final December 1976 Board decision is cumulative, redundant, and does not relate to an unestablished fact necessary to substantiate the claim for service connection for orthostatic proteinuria; nor does it raise a reasonable possibility of substantiating that claim. 3. There is no current disability of plantar warts. 4. Cervical spondylosis was not shown in service, was not diagnosed within one year of separation, and the preponderance of the evidence fails to establish that the Veteran’s current cervical spondylosis is etiologically related to his active service. 5. Prior to March 9, 2012, it is not factually ascertainable that the Veteran filed a claim for entitlement to a nonservice-connected disability pension. CONCLUSIONS OF LAW 1. The December 1976 Board decision which denied the appeal for restoration of service connection for orthostatic proteinuria is final. 38 U.S.C. §§ 1110, 5107(b), 5108, 7104; 38 C.F.R. §§ 3.104, 3.156, 20.1100. 2. New and material evidence has not been received to reopen the claim for entitlement to for service connection for orthostatic proteinuria. 38 U.S.C. § 5108, 38 C.F.R. § 3.156. 3. The criteria for service connection for plantar warts are not met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 4. The criteria for service connection for cervical spondylosis are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), (b), (d), 3.307, 3.309(a). 5. The criteria for an effective date prior to March 9, 2012, for the award of a permanent and total disability rating for non-service-connected pension purposes, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1972 to May 1974. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision from the Department of Veterans Affairs (VA) Regional office (RO). The Veteran requested a videoconference hearing before the Board in his July 2016 VA Form 9 substantive appeal. That hearing was scheduled for March 2019; however, he failed to attend the hearing or offer any explanation for his absence. The Veteran’s hearing request is therefore considered withdrawn. See 38 C.F.R. § 20.704(e). 1. Whether new and material evidence has been received to reopen a claim for service connection of orthostatic proteinuria. New and Material Evidence-Legal Criteria A claim that has been denied in an unappealed RO decision or an unappealed Board decision may not then be reopened and allowed. 38 U.S.C. § 7104(b), 7105(c). Generally, a Board decision is final unless the Chairman of the Board orders reconsideration. 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA will reopen the claim and review it on the merits. New evidence means evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Board has jurisdictional responsibility to determine on its own whether there is new and material evidence to properly reopen a service-connection claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (citing 38 U.S.C. § 5108, 7105(c)). The submission of “new and material” evidence is a jurisdictional prerequisite to the Board’s review on the merits of a previously-denied claim. In determining whether evidence is new and material, the credibility of the new evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Merits In an October 1974 rating decision, the Veteran was granted service connection for orthostatic proteinuria. A rating decision dated March 1975 proposed to discontinue service connection on the basis that the condition was a medical finding and not a ratable illness or injury. Thereafter, and as proposed, service connection for orthostatic proteinuria was severed pursuant to a clearly and unmistakably erroneous finding by a July 1976 rating decision. It became effective September 1976. The Veteran appealed the issue of entitlement to restoration of service connection for orthostatic proteinuria to the Board, which denied the appeal. The Board found that protein in the Veteran’s urine during service and upon examination in the period immediately after separation from active duty, did not indicate that a chronic urinary or renal disease was present either in service nor had it manifested at any time post service. See December 1976 Board Decision. Of record at that time were service treatment records and post-service medical records that documented laboratory findings of protein in the Veteran’s urine. However, an uncontradicted March 1976 VA examination and medical opinion by a nephrologist indicated that the impression was multiple somatic complaints of unknown etiology, dysuria of unknown etiology and proteinuria of unknown etiology probably postural orthostatic in nature. Kidney studies further showed that the protein in the Veteran’s urine was only a trace amount. The Veteran did not appeal the December 1976 Board’s decision or request reconsideration. Therefore, it became final. 38 U.S.C. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a). In January 2012, the Veteran submitted a claim for service connection for orthostatic proteinuria. See January 2012, Statement in Support of Claim. This claim has been construed as a request to reopen his previously severed service connection claim for orthostatic proteinuria. The evidence received since the December 1976 Board decision includes a 1979 VA Emergency Department report, Miami Veteran’s Affairs Medical Center (VAMC) treatment notes from February 1998 through May 2018, and the Veteran’s Statement in Support of Claim. This evidence is new because it was not previously associated with the claims file. However, the evidence is not material because it does not relate to an unestablished fact necessary to substantiate the claim on appeal. In relevant part, these records are merely cumulative of the evidence at the time of the December 1976 Board decision because they do not establish that the Veteran has a ratable urinary or renal disorder. While the Veteran continues to report protein in his urine as part of his medical history, VA treatment records indicate that he has been told by his physicians that he does not have kidney problems. See e.g., May 2015 Primary Care Clinic Note. The Board acknowledges that by filing a this claim the Veteran’s has reiterated his contention that protein in his urine is a disability that should be service-connected. Nevertheless, this contention was previously considered in the Board’s December 1976 decision. Therefore, the Board finds that new and material evidence has not been received since the December 1976 Board decision that might substantiate the claim. Accordingly, reopening the claim for service connection for proteinuria, orthostatic is not warranted. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131. Generally, the evidence must show: (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, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). With any claim for service connection, it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (recognizing the disability could arise at any time during the claim); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (recognizing disabilities that occur immediately prior to filing of a claim). The requirement that a current disability exists is satisfied if the claimant had a disability at the time her claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Under 38 C.F.R. § 3.303(b), where the veteran asserts entitlement to service connection for a chronic condition but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). 2. Entitlement to service connection for plantar warts. The Veteran contends that he has plantar warts and that they are related to active duty service. However, after careful review the Board finds that service connection for plantar warts is not warranted. The Veteran’s service treatment records (STRs) document a plantar wart on his right foot which required debridement. See e.g., March 1973, April 1973, May 1973, August 1973 and September 1973 STRs. The Veteran was afforded a VA skin examination in February 2012. The VA examiner noted that the Veteran had been diagnosed with plantar warts during active military service. An in-person physical examination revealed a hardened callous on the plantar surface of the left foot at the base of the 5th toe. Significantly, he had no pertinent physical findings or symptoms of plantar warts. The examiner opined that it was less likely than not that the Veteran’s plantar warts were incurred in or caused by any in-service injury, event or illness because there was no documentation surrounding on going care for plantar warts. The examiner did note a referral to podiatry in January 2012, but no findings were indicated. The VA examiner proffered a provisional diagnosis of left foot callous. Nevertheless, the examiner opined that it was less likely than not that the Veteran’s claim of any skin condition of the foot could be attributed to his in-service diagnosis for plantar warts because his physical exam was negative for plantar warts and his medical records were silent for documentation of care for foot related skin conditions in any medical records contained in the Veteran’s claims file. VA treatment records subsequent to the February 2012 VA examination document the Veteran’s complaints of a wart on the plantar surface of his left foot which was painful to touch and with walking. See December 2014 Miami VA Medical Center Primary Care Clinic Note. Although podiatry was consulted, VA treatment records are silent for any diagnosis, assessment, or required medical intervention for the condition. The Veteran’s statements that he has plantar warts have been considered however the Board does not find them to be probative. Although he is competent to report treatment and symptoms of a disorder, he is not competent to diagnose a current disability or opine as to an etiology. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Significantly, there are no post service treatment records for plantar warts and the Veteran appears to have only sought to address the condition in light of the February 2012 VA examination and subsequent denial of his claim. The Board accords great weight to the VA examiner’s opinion which was based on an in-person examination of the Veteran and a review his claims file. The examiner is a medical professional who is both credible and competent to render an opinion in this matter. Further the examination findings are consistent with VA treatment records which suggest a past medical history of plantar warts during service but are silent for any treatment of plantar warts during the appeals period. Considering the foregoing, it is not shown that at any time during the pendency of this appeal the Veteran has had plantar warts. As such, the preponderance of the evidence is against a finding that the Veteran has current plantar warts. Since it is well-established that the existence of a current disability is the cornerstone of any claim for VA disability compensation, the Veteran’s claims for service connection for plantar warts must be denied. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 3. Entitlement to service connection for cervical spondylosis claimed as a knot in the left side of neck. The Veteran seeks service connection for cervical spondylosis claimed as a knot in the left side of the neck. The Veteran contends that he developed severe pain in 1973 after falling off the wing of an aircraft. See February 2010 VA Neck Conditions Examination. The Veteran’s service treatment records (STRs) show that in January 1973 he injured his neck playing basketball. A small knot was evident on the left side of his neck. See January 1973 Naval Hospital Annex Dispensary. Treatment plan for the condition consisted of hot soaks and minimal exercise. Id. The Veteran’s STRs are silent for any injury caused by falling off a jet’s wing or any other neck injury. The Veteran’s separation examination is negative for any findings or abnormalities of his spine. See Separation Examination, April 1974. With regard to a current disability, the Veteran was afforded a VA Neck Conditions examination in February 2012 and was diagnosed with cervical spondylosis. The question for the Board is whether the Veteran has a chronic disease that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran has a diagnosis of cervical spondylosis, which is a chronic disease under 38 U.S.C. § 1101(3); 38 C.F.R. § 3.309(a), it was not chronic in service nor did it manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. The Veteran’s service treatment records do not indicate a history of in-service neck complaints or treatment. The available post-service treatment records do not indicate that the Veteran complained of or sought treatment for any pain or degenerative changes to the Veteran’s neck until after he was diagnosed in the February 2012 VA examination. While the Veteran is competent to report having experienced symptoms of neck pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of degenerative changes to his cervical spine. The issue is medically complex, as it requires interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence. The February 2012 VA examiner conducted an in-person examination of the Veteran and reviewed his claims file. The VA examiner is a medical professional who is credible, independent and competent to render an opinion in this matter. The examiner opined that it was less likely than not that the Veteran’s neck disability was incurred in active duty service or caused by an in-service injury event or illness. The rationale for the examiner’s opinion was that there was no further evidence of a cervical spine condition with almost a 40-year gap of treatment between active duty and subsequent diagnosis of a cervical spine disorder. Significantly, no competent or credible evidence has been identified or submitted by the Veteran supporting a finding that has had continuous symptoms of or treatment for a cervical spine condition. Service connection for cervical spondylosis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran’s cervical spondylosis and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). The February 2012 VA examiner opined that the Veteran’s cervical spondylosis was less likely as not related to an in-service injury, event, or disease. The only post-service treatment records regarding the Veteran’s neck disability are dated after 2012. Although the records indicate a diagnosis of cervical radiculopathy, they give no indication as to the etiology of that diagnosis. While the Veteran may believe the degenerative changes to his neck are related to an in-service injury, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, and it requires medical expertise and training beyond the scope of a lay person. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight opinion of the February 2012 VA examiner which is uncontradicted and finds that service connection for cervical spondylosis is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. 4. Entitlement to an effective date earlier than March 9, 2012 for the grant of a nonservice-connected disability pension. The law provides that a Veteran of a period of war who meets service and income requirements, and who is permanently and totally disabled from disability not the result of his own willful misconduct, shall be paid a non-service-connected pension. 38 U.S.C. § 1521. Unless specifically provided otherwise, the effective date of an award of a disability pension shall be fixed in accordance with the facts found but shall not be earlier than the date of VA’s receipt of claim. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Initially the Board notes that effective March 24, 2015, a change in regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a) (2016). Prior to March 24, 2015, a “claim” was defined as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim was “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, were “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). It is otherwise provided that if the Veteran was prevented, by reasons of a disability which was so incapacitating, from applying for pension benefits for a period of at least 30 days beginning on the date on which he became permanently and totally disabled, the effective date will be the date of application for the benefits or the date on which he became permanently and totally disabled, provided that the Veteran applies for a retroactive award within one year from such date, whichever is to the advantage of the Veteran. The Veteran seeks a date earlier than March 9, 2012 for the grant of a nonservice-connected disability pension. He has, however, not provided any argument as to why he believes an earlier effective date is warranted. After careful review of the evidence of record, the Board finds that there is no basis upon which to grant an effective date prior to March 9, 2012 for the grant of a nonservice-connected pension. Regarding the above effective date provisions, it is neither claimed nor shown that there was incapacitation affecting the Veteran’s ability to file a pension claim. Accordingly, the effective date for the Veteran’s pension is to the date VA received the claim or, if later, the date entitlement arose (i.e., the date on which the Veteran is shown to have become permanently and totally disabled). The Board acknowledges that under 38 C.F.R. § 3.151(a), a claim for compensation may be considered a claim for pension and a claim for pension may be considered a claim for compensation, with the greater benefit awarded unless the claimant specifically elects the lesser benefit; however, VA “is not automatically required to treat every compensation claim as also being a pension claim or vice versa. Stewart v. Brown, 10 Vet. App. 15, 18 (1997); see also Willis v. Brown, 6 Vet. App. 433, 435 (1994). Here, the Veteran submitted a statement that was received in September 2003, in which he indicated that he would be filing a claim at a later date. He did not specify what type of claim he would be filing. Several days later, also in September 2013, VA responded by noting that they had received the Veteran’s “informal claim for service connected disability compensation/nonservice connected pension on September 10, 2003.” The letter enclosed a VA Form 21-526 and requested that he complete the form as soon as possible, preferably within 30 days. The letter further advised that if VA did not receive the form within one year of their letter, any benefits later established might not be able to be paid prior to the date of its receipt. The record does not show the Veteran responded to this September 2013 letter. Instead, the next communication from the Veteran was received on January 5, 2012, when he filed a VA Form 21-526 Veteran’s Application for Compensation and/or Pension. While the VA Form 21-526 enabled the Veteran to apply for compensation, pension or both, he explicitly stated that the benefit he was applying for was compensation. See January 2012 VA Form 21-526. The Veteran also noted that he had previously only applied for VA compensation. Id. Significantly, in addition to not providing the required employment and net worth information required to verify the income guidelines for a nonservice-connected pension, the Veteran drew lines through Part VII of the application entitled Nonservice-Connected Pension. He also submitted an accompanying statement to that form indicating that he was “filing a new Service Connected Disability Compensation claim.” The Board thus finds that the Veteran’s January 2012 application signified his unambiguous intent to file a claim for compensation and not a pension. Moreover, there was no additional evidence contained within the Veteran’s claims file that should have caused VA to construe an informal claim or application for a nonservice-connected pension had been filed. At the time the Veteran submitted his January 2012 claim, he did not indicate an inability to work. In February 2012, the Veteran was afforded four different VA examinations and each was silent for any report that he could not work. In March 2012 the Veteran filed VA Form 21-527 Income-Net Worth and Employment Statement, which was the first indication that he was unable to earn an income and wanted to be considered for a nonservice-connected pension. The RO properly construed this filing as an informal claim for a nonservice-connected disability pension. In light of the foregoing, the Board finds that the RO was correct in assigning the effective date of March 9. 2012, as the date the Veteran filed a claim for nonservice-connected pension benefits. REASONS FOR REMAND 1. Entitlement to service connection for headaches, including migraine and tension variants and claimed as chronic headaches, is remanded. The Veteran seeks service-connection for headaches. His service treatment records (STRs) reflected numerous complaints for migraines during active duty. See e.g., March 1974 Consultation Report. The Veteran has a current diagnosis of recurrent migraines. See e.g., April 2014 Homestead VA Outpatient Clinic Psychiatry Follow Up Note. The Veteran was afforded a VA examination in February 2012. The examiner indicated that while the Veteran reported a continuity of symptomatic headaches since separation there was no medical documentation that supported this contention. Accordingly, the VA examiner opined that the claimed condition was less likely than not incurred in or aggravated by active duty service. The Board notes, however, that of record is a March 1983 statement in which the Veteran referenced having headaches and indicated he was seeking treatment from a VA doctor in Loma Linda, California and was treating at the VA Outpatient Clinic (OPC) in Sacramento, California. See March 1983 VA 21-4138 Statement in Support of Claim. The Board thus finds that VA’s duty to assist is triggered and remand is warranted to obtain VA medical records disclosed by the Veteran in support of his claimed disability. He should also be afforded a new VA examination upon receipt of those records. 2. Entitlement to service connection for a left shoulder disability, claimed as left shoulder strain, is remanded. The Veteran seeks service connection for a left shoulder disability claimed as left shoulder strain. The Veteran’s service treatment records (STRs) document treatment of a left shoulder muscle strain. See March 1973 Naval Hospital Annex Dispensary Note. VA post service treatment records report degenerative changes of the Veteran’s shoulder bilaterally with a possible old chip fracture of the inferior glenoid of the left shoulder dated February 2012. See January 2018 Homestead VA Clinic Primary Care Preventative Medicine History. The Veteran was afforded a VA Shoulder and Arm Conditions examination in February 2012. At the VA examination the Veteran reported that his left shoulder symptoms were secondary to his neck and that he had no left shoulder joint issues. Consequently, the examiner did not complete a shoulder examination or offer a medical nexus opinion. In light of the foregoing, the Board finds that the February 2012 VA examination was inadequate, and remand is warranted for a new VA examination. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 3. Entitlement to service connection for a lumbar spine disorder, claimed as scoliosis, is remanded. The Veteran seeks service connection for a lumbar spine disorder claimed as scoliosis. An MRI of the lumbar spine indicates the presence of transitional vertebra (congenital spinal anomaly), inflammatory degenerative disc disease, inflammatory right facet arthropathy, and left foraminal disc herniations. See February 2012 Lumbar Spine MRI reported January 2018 Primary Care Note Homestead VA Clinic. The Veteran’s enlistment and separation examinations are silent for any back defects. A June 1974 VA Examination noted that the Veteran had severe back pain with difficulty walking which was believed to be associated with the Veteran’s orthostatic proteinuria. In a hospital admission three weeks after separation from the Navy, the Veteran was diagnosed with moderate upper lumbar scoliosis to the right, pursuant to lumbar spinal imaging. See June 1974 Discharge Summary VA Hospital Miami. A March 1976 VA examination diagnosed the Veteran’s lumbar spine disorder as residual low back syndrome due to trauma and indicated that the Veteran left military service with a back injury. Considering the foregoing, the Board finds that VA’s duty to assist is triggered and further development to include a VA examination is warranted. The matters are REMANDED for the following actions: 1. Contact the Veteran and ask him to identify any relevant outstanding VA and private treatment records. With any required assistance from the Veteran obtain any identified records, to include specifically include those VA treatment records from Loma Linda and Sacramento, California as identified by the Veteran in a March 1983 VA Form 21-4138 Statement in Support of Claim. 2. Obtain the Veteran’s medical records from the Social Security Administration to include relevant documents pertaining to the receipt of disability benefits and/or Supplemental Security Income (SSI). 3. After the above development is completed, schedule the Veteran for VA examinations for his claimed disabilities on appeal. The examiners should determine the nature and likely etiology of the Veteran’s claimed headaches, left shoulder and lumbar spine disabilities. The examiners should obtain a complete history from the Veteran, review his claims file (to include this remand), and arrange for any indicated studies. The following questions should then be answered: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s headache disability began during or was otherwise caused by the Veteran’s active service? Why or why not? The examiner must consider the STRs indicating complaints of and treatment for migraines in service as well as the Veteran’s March 1983 report of having headaches. (b) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s left shoulder disability began during or was otherwise caused by the Veteran’s active service? Why or why not? The examiner must consider the STR indicating treatment of a left shoulder muscle strain. (c) Does the evidence of record clearly and unmistakably (undebatable) demonstrate that the Veteran had a lumbar spine disorder prior to his active duty service? (d) If the answer to the above question (c) is “yes,” does the evidence clearly and unmistakably (undebatable) demonstrate that the Veteran’s lumbar spine disorder was not aggravated by his active duty service? In answering this question, the examiner should know that a lack of aggravation may be shown by establishing either that there was no increase in disability during service or that any increase in disability was due to the natural progression of the preexisting condition. The examiner must consider the STRs indicating complaints of and treatment for low back pain in service. (e) If the answer to either of the above questions (c) or (d) is “no,” is it at least as likely as not (50 percent or greater probability) that the Veteran’s lumbar spine disorder began during or was otherwise caused by the Veteran’s active service? Why or why not? The examiner should discuss the significance, if any, of the Veteran’s treatment for low back pain beginning in June 1974. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Alexander 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.