Citation Nr: 20072016 Decision Date: 11/06/20 Archive Date: 11/06/20 DOCKET NO. 10-20 872 DATE: November 6, 2020 ORDER Service connection for cervical spine disability is denied. Service connection for right shoulder disability, secondary to a cervical spine disability is denied. Service connection for lumbar spine disability is denied. Service connection for left leg disability, secondary to a lumbar spine disability is denied. REMANDED Service connection for dystonia/muscle spasms of the upper extremities, to include as secondary to a cervical spine disability, or as due to Gulf War Illness or due to an Anthrax vaccination is remanded. FINDINGS OF FACT 1. Currently diagnosed degenerative joint disease of the cervical spine was not incurred in service, did not manifest to a compensable degree within one year of service separation, and symptoms of arthritis were not chronic in service and continuous since service. 2. The Veteran does not have a currently diagnosed right shoulder disability that was incurred in or caused by service. 3. Currently diagnosed degenerative joint disease of the lumbar spine was not incurred in service, did not manifest to a compensable degree within one year of service separation, and symptoms of arthritis were not chronic in service and continuous since service. 4. A left leg disability was caused by a non-service connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for cervical spine disability have not been met. 38 U.S.C. §§ 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). 2. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). 3. The criteria for service connection for lumbar spine disability have not been met. 38 U.S.C. §§ 1112 , 1113, 1131 (2012); 38 C.F.R. §§ 3.102 , 3.303, 3.307, 3.309 (2019). 4. The criteria for service connection for a left leg disability, to include as due to a lumbar spine disability have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.310 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to June 2001. He also had additional verified periods of active duty for training. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in April 2009 of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. Jurisdiction was subsequently transferred to the RO in Phoenix, Arizona. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2016. A copy of hearing transcript has been associated with the record. The appeal was previously remanded in June 2016 for VA examinations and medical opinions. The Board again remanded the appeal in February 2018 for the same. The Board finds that the VA examinations and medical opinions are adequate for decisional purposes and the Board may proceed with a decision at this time. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). However, the Board finds that remand is necessary for service connection for dystonia prior to rendering a decision on the appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2019). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d) (2019). As a general matter, service connection for a disability requires evidence of (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2019). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310 (b) provides that any increase in severity of a nonservice-connected disease or injury proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the disease, will be service connected. In reaching this determination as to aggravation of a nonservice-connected disability, consideration is required as to the baseline level of severity of the nonservice-connected disease or injury (prior to the onset of aggravation by service-connected condition), in comparison to the current level of severity of the nonservice-connected disease or injury. These evaluations of baseline and current levels of severity are to be based upon application of the corresponding criteria under the VA rating schedule for evaluating that particular nonservice-connected disorder. Arthritis is a “chronic disease” under 38 C.F.R. § 3.309 (a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. 38 C.F.R. § 3.303 (b). Where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. 38 U.S.C. § 1154 (a) (2012); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A veteran is entitled to the benefit of the doubt when there is an approximate balance of evidence for and against the claim. See 38 C.F.R. § 3.102 (2019). When a veteran seeks benefits and the evidence is in relative equipoise, the veteran prevails. See Gilbert, 1 Vet. App. 49. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Service connection for cervical spine disability During the March 2016 Travel Board hearing, the Veteran testified that he believed his current cervical spine disability was related to the general wear and tear of his military occupation, which required him to squat beneath planes upwards of 50 times a day, in which he would hit his head on the bombs or wings of planes. He also reported that he had walked into the wing of an airplane once and got whiplash so bad that it could have caused his current neck disability. The Veteran indicated that he had surgery on his neck two years after service separation which could have been the result or outgrowth of these incidents. Service treatment records do not show complaints, treatment or diagnosis of a cervical spine disability. Private treatment records include October 2005 and December 2006 operation reports of the cervical spine. An October 2005 pre-operative letter shows the Veteran, a month prior, ran into a tree while bike riding and developed neck pain. Private treatment notes include a January 2007 note, the Veteran was establishing care, and a cervical neck fusion on “12/27” presumably from the year before is recorded. A subsequent January 2007 follow-up shows the Veteran was wearing a neck brace. In an attached progress record, it is recorded that the Veteran had a neck fusion due to damage from surface air driving and downhill bike racing accident. The Veteran had a C4-5-6 fusion done on December 12, 2006. The Veteran was presently wearing a soft collar and reported minimal pain. An April 2007 neurological consultation shows that the Veteran reported a history of neck surgery. The Veteran had a surgery in December 2006, which involved a fusion. He indicated that he had a bicycle accident in August 2005 and reported he had a bone fragment removed from his neck in October 2005 from the accident. VA treatment notes from October 2007 show an examination of the Veteran’s neck motor function was within normal limits but there was a restriction in neck range of motion. A November 2007 note shows a neck X-ray was ordered upon complaints of severe bilateral upper extremity spasms. The November 2007 X-ray report shows status post anterior cervical fusion from C-4 through C-6. There were mild changes of disc degeneration at C3 and C4. A January 2008 note shows the Veteran complained of neck pain which was on and off for several years. He still had neck pain, which was getting worse, after his spinal fusion surgery a year prior. In November 2008, the Veteran was consulted at VA for a third cervical spine surgery. The Veteran reported that his symptoms began in 1998 with an accident on the flight deck of a carrier in the Navy, which have progressively worsened until 2005 when he began to lose the use of his left arm. He had undergone an MRI at that time and had an operation in December 2006. In December 2008, the Veteran had his third cervical spine surgery. The Veteran had gone to physical therapy from January 2009 through March 2009, which also involved injections for pain management. Within a March 2009 report generated to establish Social Security Administration disability benefits, the Veteran, within an interview, reported that he began having increased pain in his neck in 1999 or 2000, with cramping in his arms and left hamstring. He had x-rays and MRIs with former physicians and was found to have degenerative disc disease. He had surgery on his neck in 2005 and 2006 with private physicians and had a third cervical spine fusion surgery, which improved the use of his arms. He reported that he was currently experiencing severe pain and burning in the center of his spine to the bottom of his neck, which radiates up and outward, decreasing the range of motion of his neck. A March 2010 VA examination for the lower back, right knee and left ankle, the VA examiner denoted the Veteran’s medical history regarding his cervical spine. The Veteran had reported that he was unable to work due to his chronic neck problems. He had a number of cervical spine fusion surgeries, one in 2005, 2006, 2007 and 2008 but continued to have chronic severe pain with some neurologic symptoms in the upper extremities with radiation of pain into the upper extremities. The Veteran was on various pain medication but still had chronic pain around the neck. A July 2016 VA examination shows the Veteran had diagnosed degenerative disc disease of the cervical spine. The Veteran reported that he was on the USS Enterprise and USS Harry Truman serving in six tours in the Persian Gulf from 1996 through 2001. He worked as a flight deck trouble shooter and was required to move quickly to repair and inspect aircraft on the flight deck. He reported that he had multiple injuries to his neck and head despite wearing a helmet. A June 2018 addendum opinion indicates that the Veteran’s neck disability was at least as likely as not related to service. The VA examiner quoted the Veteran’s reports of an in-service neck injury made within his July 2016 VA examination. An August 2019 VA addendum opinion indicates that the Veteran’s neck disability was at least as likely as not related to service or was manifest to a compensable degree within one year of service separation. The VA examiner reasoned that the Veteran had reported neck pain after a head injury in service, with post-service records noting chronic pain with evidence of degenerative joint disease and arthritis resulting in surgery. The examiner noted that a neurosurgeon had related the Veteran’s condition began in 1997. A December 2019 VA examination shows the Veteran had diagnosed cervical degenerative disc disease. The VA examiner noted that the veteran had extensive records relating to his cervical spine however they are outside of his military service. His medical records regarding his cervical spine report that the cervical spine complaints occurred after a bicycle accident in 2005, which was well documented. Upon interview, the Veteran reports that these records are incorrect and his neck problems started while in service and had nothing to do with the accident or wearing a diving helmet. The examiner indicated that the Veteran’s service records appeared to be complete and well documented, with history and physicals specifically with associated self-reporting from years 2001, 1999, 1998, 1997 and 2003 have no reports at all of any type of complaints, problems, issues, imaging related to his cervical spine or neck. There are other medical records where he went in for other ailments and on the review of systems there are no reports of cervical or neck issues. The VA examiner concluded that medical reports do not support that his current neck diagnoses are related to his claimed in-service injury. Therefore, the VA examiner opined that the Veteran’s current neck disability was less likely than not incurred in or caused while working with aircraft during service. The VA examiner was prompted that a prior VA examiner provided a positive nexus opinion. Upon review of all the evidence, lay and medical, the Board finds that the Veteran’s currently diagnosed neck disability was incurred in or caused by active service. While an August 2019 and June 2018 VA examiners opined that the Veteran’s neck disability was as likely as not related to service, the Board finds that the rationale provided for these medical opinions were not adequate. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The medical opinions merely cited to the Veteran’s own self reported statements as to the onset of his neck disability in service to include the Veteran’s history as to his neck disability which was relayed through a neurosurgeon. The Board finds probative private treatment records, which include an October 2005 pre-operative letter which shows the Veteran, a month prior, ran into a tree while bike riding and developed neck pain, resulting in the need for his first cervical spine surgery. As discussed within the December 2019 VA examination, the Veteran’s service records appeared to be complete and well documented, with history and physicals specifically with associated self-reporting from years 2001, 1999, 1998, 1997 and 2003 have no reports at all of any type of complaints, problems, issues, imaging related to his cervical spine or neck. The Board assigns more weight to the December 2019 VA medical opinion, as it is based on a thorough review of the claims file and included a robust discussion in analyzing the evidence of record in arriving at a conclusion. Given the above, degenerative joint disease did not manifest to a compensable degree within one year of service separation, and symptoms of arthritis were not chronic in service and continuous since service. Insomuch as the Veteran contends that a neck disability is related to his in-service injury, the Board finds that he is not competent to opine as to the etiology of his neck disability, as he lacks the medical training and expertise to provide a complex medical nexus opinion. Jandreau v. Nicholson, 492 F.3d 1372, (Fed. Cir. 2007). For the above reasons, the Board finds that the weight of the evidence is against the finding of service connection for a cervical spine disability. Because the preponderance of the evidence is against the claim, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 2. Service connection for a right shoulder disability, to include as due to a cervical spine disability The Veteran has generally stated, within the March 2016 Travel Board hearing, that his right shoulder disability is related to his cervical spine disability. Service treatment records include notes in November 1996, showing the Veteran had diagnosed right bicep tendonitis. A July 2016 VA examination of the right shoulder shows the Veteran did not have a diagnosed shoulder disability. The Veteran reported a history of neck pain with referred pain to the right shoulder. He did not endorse a right shoulder injury in service. On range of motion testing, the Veteran’s right shoulder range of motion was normal. The Veteran had normal range of motion testing of the right shoulder, without ankylosis and without rotator cuff conditions. An August 2016 VA examination shows the Veteran did not have a current diagnosis of a right shoulder disability. On examination, the Veteran had normal range of motion testing and muscle strength testing of the right shoulder. The VA examiner found that the Veteran did not have any functional impairment due to the claimed right shoulder disability. A June 2018 addendum opinion indicates that the Veteran’s right shoulder disability was at least as likely as not related to service. The VA examiner cited to the Veteran’s service treatment records, showing a diagnosis of right bicep tendonitis in November 1996. A May 2019 VA examination shows that the VA examiner, on review of the Veteran’s claims file, found that service treatment records indicate that the Veteran had left shoulder biceps tendonitis, then another record said it was the right shoulder, and that there was no further follow up with this condition. Separation exam shows no evidence of any chronic shoulder condition bilaterally. Post service VA treatment records show no evidence of any treatments related to any shoulder condition including biceps tendonitis. Lay statement by the veteran in 2009 does note right shoulder pain from the service for which he didn’t seek treatment for and states his pain worsened in 2005. However, VA treatment records in 2008 also show no evidence of chronic right shoulder pains as stated by the examiner. Due to the lack of continuity of treatment for biceps tendonitis since 1996 and no records one year post service and after, it is less likely than not that there is a right shoulder condition related to any in-service disease, event, or injury or was manifest to a compensable degree within one year after discharge from active service. Based on review of all the evidence, lay and medical, the Board finds that the Veteran does not have a current diagnosis of a right shoulder disability that was incurred in or caused by active service. The Board notes that the United States Court of Appeals for the Federal Circuit recently decided the case of Saunders v. Wilkie, No. 2017-1466 (Fed. Cir. 2018). The Federal Circuit found that “pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability.” The Federal Circuit stated that for service connection purposes, a disability “refers to the functional impairment of earning capacity” and that “pain in the absence of a presently-diagnosed condition can cause functional impairment.” While the Veteran has disclosed complaints of right shoulder pain during the period on appeal, an August 2016 VA examiner found that the Veteran did not have any functional impairment due to the claimed right shoulder disability. Regardless, a May 2019 VA examiner competently opined that any such right shoulder disability would be less likely than not related to service. Insomuch as the Veteran contends that he has a right shoulder disability, the Board finds that he is not competent to diagnose himself with such a disability, as he lacks the medical training and expertise to provide such an opinion. Jandreau, 492 F.3d 1372. Therefore, the Board finds that no current disability is shown throughout the appellate period. The threshold requirement for service connection to be granted is competent evidence of the current existence of a claimed disorder. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without a current diagnosis a right shoulder disability at any time during the period on appeal, service connection for such is not warranted. Even assuming for argument purposes that the Veteran does have a right shoulder disability, there is no evidence linking it to service. Because the preponderance of the evidence is against the claim for service connection for a right shoulder disability, the claim must be denied, and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019) 3. Service connection for lumbar spine disability Similar to his contentions as to the etiology of his cervical spine disability, the Veteran, within the March 2016 Travel Board hearing, testified that his lumbar spine disability was due to the head impact injuries he received during his work under planes while in service. Service treatment records show a March 1999 note in which the Veteran was assessed with lower back strain. Private treatment notes include a July 2007 note in which the Veteran complained of back pain and reported that he had a job in heavy labor. VA treatment notes show the Veteran complained of back pain in October 2007. An examination of the back was within normal limits. A March 2010 VA examination for the lower back shows the Veteran reported back pain in service from working on the flight deck for 12 hours a day and that he had back pain since 1997. A November 2009 x-ray of the lumbar spine showed that the Veteran had compression deformities of the thoracolumbar spine. The Veteran reported that the back pain caused cramping in the lower extremities with occasional radiation towards the knees. Upon examination, the Veteran was diagnosed with degenerative joint disease of the lumbar spine with some compression deformities. The VA examiner indicated that while the Veteran had a lower back strain in service, he had no complaints on separation and the claims file does not show back pain until more recently. The VA examiner stated that it would be mere speculation to make a connection of his current diagnosis to a one-time occurrence of low back strain in service. A July 2016 VA back examination shows a diagnosis of degenerative joint disease of the lumbar spine with intervertebral disc syndrome. During the examination, the Veteran reported that he injured his back during service. Medical records show an onset of a low back condition in 2006 with bilateral sciatica pain, status post laminectomy in 2012. The VA examiner opined that it was less likely than not that the Veteran’s back disability was related to service, reasoning that service treatment records were silent for arthritis. A June 2017 VA medical clarification opinion shows that the Veteran reported he did not have a back injury while in service. The onset of the low back disability was about 2006, with surgery in 2012. The VA examiner stated that the back disability began after active duty and was less likely than not related to active duty. A June 2018 VA addendum opinion indicates that a low back disability was less likely than not incurred in or caused by service. The VA examiner cited to evidence within the claims file, to include service treatment records reports of medical history in which the Veteran reported no recurrent back pain in October 1997 and on separation in March 2001. A May 2019 VA medical opinion shows that the Veteran’s currently low back disability was less likely than not related to active service. The VA examiner indicated that service treatment records show the Veteran had a back strain in March 1999 with no further follow up with this condition. The Veteran’s separation examination in 2001 and National Guard enlistment examination two years later showed no evidence of any chronic recurring back pain. Post service VA treatment records from show that the veteran does have chronic back pain but there is no relation to service. There are no lay statements showing continuity of back problems since service. Due to the lack of continuity of treatment for back strain since 1999 and no records one year post service and after showing any connection between the veteran’s back arthritis, the VA examiner opined that it was less likely than not that low back arthritis was related to any in-service disease, event, or injury or was manifest to a compensable degree within one year after discharge from active service. The Board finds that based on all the evidence, lay and medical, that currently diagnosed lumbar spine degenerative joint disease was not incurred in or caused by active service. The Board finds probative the May 2019 VA medical opinion, in which the VA examiner found that there was no evidence of chronic recurrent back pain since service, without continuity of symptoms since service separation. While the Veteran had current back pain, it was not related to service. The May 2019 VA medical opinion was based on a thorough review of the claims file and included a robust discussion in analyzing the evidence of record in arriving at a conclusion. Further, degenerative joint disease of the lumbar spine did not manifest to a compensable degree within one year of service separation, and symptoms of arthritis were not chronic in service and continuous since service. The May 2019 VA examiner cited to a lack of continuity of treatment for back strain since 1999 and no records one year post service and after showing any connection between the veteran’s back arthritis, the VA examiner opined that it was less likely than not that low back arthritis was related to any in-service injury. Insomuch as the Veteran has asserted that his lumbar spine disability is related service, absent chronic symptomatology in the lumbar spine, the Board finds that his lay assertions with regard to causation are outweighed by medical opinion evidence provided by a physician on this issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). For the above reasons, the Board finds that the weight of the evidence is against the finding of service connection for a lumbar spine disability. Because the preponderance of the evidence is against the claim, the claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). 4. Service connection for a left leg disability, to include as due to a lumbar spine or cervical spine disability The Veteran has generally claimed, within the March 2016 Travel Board hearing, that his left leg disability is related to his lumbar or cervical spine disability. A September 2007 letter from the Veteran’s private physician indicates that the Veteran had spasms in his leg. VA treatment records in October and November 2007 show the Veteran had complained of restless leg syndrome, with pain in his leg joints. Within a March 2009 report generated to establish Social Security Administration disability benefits, the Veteran, within an interview, the Veteran reported he had severe burning in the left thigh down his hamstring to his left ankle. He described the pain as going down his left lower extremity. An April 2013 VA examination shows the Veteran was diagnosed with right knee arthritis and patellofemoral syndrome. On examination of the knees, the Veteran had normal range of motion of the left knee with normal muscle strength testing results and joint stability test results. An August 2016 VA medical opinion shows that the Veteran’s current leg disability was at least as likely as not caused by a low back disability. The Veteran’s leg disability was diagnosed as lumbar radiculopathy, affecting the left lower extremity. The Board finds that the Veteran’s leg disability was not incurred in or caused by active service but is rather caused by a low back disability, which, per this decision, is not service connected. The Veteran has not otherwise reported an incident in service, such as an injury, that could have caused his current leg disability outside of his spine disabilities. Insomuch as the Veteran contends that a right knee disability is related to his in-service injury, the Board finds that he is not competent to opine as to the etiology of his right knee strain, as he lacks the medical training and expertise to provide a complex medical nexus opinion. Jandreau, 492 F.3d 1372. Accordingly, service connection for a right knee injury is not warranted. Because the preponderance of the evidence is against the claim, the doctrine of the benefit of the doubt is not for application. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2019). REASONS FOR REMAND 1. Service connection for dystonia/muscle spasms of the upper extremities, to include as secondary to a cervical spine disability, or as due to Gulf War Illness or due to an Anthrax vaccination is remanded. After the most recent February 2018 Board remand, a June 2018 addendum opinion indicates that the Veteran’s muscle spasms were less likely than not related to service but instead were pre-existing since childhood. A veteran is 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, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term “noted” denotes “[o]nly such conditions as are recorded in examination reports,” 38 C.F.R. § 3.304 (b), and that “[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” Id. at (b)(1). If a disorder was not “noted” on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the “increase in disability [was] due to the natural progress of the preexisting condition.” 38 C.F.R. § 3.306 (2012); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In this case, the Veteran did not have muscle spasms denoted on his April 1996 entrance examination, but rather had a normal clinical evaluation of the upper extremities. The Board therefore finds that the Veteran did not have a muscle spasm disability “noted” on service entrance. 38 C.F.R. § 3.304 (b) (2019). Therefore, the Board must determine whether clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). The Veteran has not yet been afforded a presumption of soundness medical opinion and therefore, the Board finds that remand is necessary to obtain such an opinion prior to rendering a decision on the appeal. The matters are REMANDED for the following action: 1. Refer the Veteran’s case for a VA addendum opinion to determine the nature and etiology of bilateral upper extremity dystonia/muscle spasms. The evidence of record should be made available to the examiner for review. All required testing must be performed. The VA examiner is requested to give the following opinions: a. Whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that the Veteran’s muscle spasms pre-existed his military service. The Board notes that the Veteran does not have a muscle spasm disability “noted” on his enlistment examination. The term “clear and unmistakable” is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. b. If it is determined that the Veteran’s muscle spasms clearly and unmistakably pre-existed his military service, determine whether there is clear and unmistakable evidence (obvious, manifest, undebatable) that any such pre-existing right foot disability was NOT aggravated in service. c. If it is found that there is clear and unmistakable evidence that the Veteran’s muscle spasms existed prior to service AND that there is clear and unmistakable evidence that the condition was NOT aggravated by service, the examiner should clearly indicate the clear and unmistakable evidence supporting his/her conclusions. d. If, however, it is determined that there is no clear and unmistakable evidence establishing that the Veteran’s muscle spasms disability pre-existed military service and that the pre-existing condition was NOT aggravated in service, the examiner must take as conclusive fact that the Veteran was sound on entrance into the military. If that is the conclusion reached, the examiner should determine whether it is at least as likely as not (50 percent probability or greater) that muscle spasms were caused by or was incurred in service. The term “at least as likely as not” does not mean “within the realm of medical possibility.” Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner must provide a complete explanation for his or her opinion(s), based on his or her clinical experience, medical expertise, and established medical principles. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion to be provided. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. R. Woodarek 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.