Citation Nr: 20021741 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 13-20 729 DATE: March 26, 2020 ORDER Entitlement to service connection for a low back disorder is denied. FINDING OF FACT The Veteran's low back disorder clearly and unmistakably existed prior to service and clearly and unmistakably was not aggravated by service. CONCLUSION OF LAW The criteria for service connection for low back disorder are not met. 38 U.S.C. §§ 1111, 1112, 1113, 1131, 1137, 1153, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to September 1995. The matter originally came before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2015, February 2017 and November 2017, the Board remanded the issue concerning service connection for a low back disorder to the RO for additional development, and the case now returns to the Board for further appellate review. The Board finds that there was substantial compliance with the Board’s remand directives. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings liberally 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 a duty to assist argument). Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303 (b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303 (d). The Board notes that every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence demonstrates that the injury or diseases existed before acceptance and enrollment and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1137. See VAOPGCPREC 3-2003 (July 16, 2003); Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). A pre-existing injury or disease will be considered to have been aggravated during service where there is an increase in disability during 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. However, aggravation of a pre-existing injury or disease will 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 to service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In Wagner, supra, the Federal Circuit described the framework for analyzing a claim involving 38 U.S.C. § 1111 in conjunction with the provisions of 38 U.S.C. § 1153 as follows: The effect of section 1111 on claims for service-connected disability thus may be summarized as follows. When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. 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 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. Id. In deciding whether a condition preexisted service, the Board must consider the veteran's medical history, accepted medical principles, evidence of the "basic character, origin and development" of the condition, and "lay and medical evidence concerning the inception, development and manifestations" of the particular condition. 38 C.F.R. § 3.304 (b)(1), (2). The term "clear and unmistakable evidence," as used in 38 U.S.C. § 1111, has been defined as evidence that "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Vanerson v. West, 12 Vet. App. 254, 258-59 (1999) (citing the definition of "clear and unmistakable error" in Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). To be eligible for disability compensation, however, it is not enough for a Veteran to show that he incurred a disease or injury while in service; she must also show that he has a present disability and that there is a nexus between that disability and her in-service injury or disease. Stover v. Mansfield, 21 Vet. App. 485, 490-93 (2007); Shedden, 381 F.3d at 1167. In each case where a Veteran is seeking service connection for a disability, due consideration shall be given to the places, types, and circumstances of the Veteran’s service as shown by the Veteran’s service record, the official history of each organization in which the Veteran served, and the Veteran’s treatment records, and all pertinent medical and lay evidence. See 38 U.S.C. § 1154(a). In making all determinations, the Board must consider fully the lay assertions of record. A layperson is competent to report on the onset and recurrent symptoms. 38 C.F.R. § 3.159. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence also can be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1377 (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board.”). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a low back disorder The Veteran contends that her low back disorder that existed prior to service was aggravated while in service. A review of the enlistment examination does not show that the back condition was noted by the Veteran. Thus, the presumption of soundness attaches to the issue on appeal herein. VA must therefore prove by clear and unmistakable evidence that both (1) The Veteran’s disease or injury pre-existed service, and (2) that the disease or injury was not aggravated by service. 38 U.S.C. § 1111. A review of the record, including service treatment records (STRs) from August 1994 shows that the Veteran denied recurrent back pain in a pre-enlistment medical history self-report, although she later claimed in a letter submitted in September 1995 during her discharge from the military that she intended to check the box for back issues on her August 1994 Report of Medical Examination – SF 93, which bears her signature, but checked “no” by mistake. She also claims her military recruiter filled out her enlistment examination and she did not report her back issue while submitting her enlistment examination to the medical examiner because she did not ask her about it, adding that her recruiter told her “if they do not ask for them, not to worry.” The fact that there is no notation of a back injury on the report of medical history is inconsequential as only those injuries noted on examination reports are deemed as noted at entry. An August 1995 clinical record shows that the Veteran reported a two-year history of chronic low back pain following a motor vehicle accident (MVA) prior to service. In August 1995, a Medical Evaluation Board report reflects that the Veteran was diagnosed with chronic lower back pain that was found to have existed prior to service and was not permanently aggravated by service. It was recommended that the Veteran be separated from service for failure to meet medical procurement and medical retention standards. In a September 1995 letter, the Veteran again stated that she was in a motor vehicle accident approximately two years prior to joining the military, which caused her back injury. She stated that she told her recruiter and brought all the hospital records at that time concerning the accident. In an April 2016 VA examination, the Veteran was diagnosed with lumbosacral strain with the date of diagnosis approximately two to three years prior to service. She was also diagnosed with degenerative disc disease of the thoracolumbar spine in April 2016. The VA examiner noted that the Veteran had symptoms of degenerative arthritis, radiculopathy and had intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The VA examiner opined that it was less likely than not that the Veteran’s current low back condition was caused or incurred in active service. The VA examiner noted that the Veteran had a pre-existing back condition due to a motor vehicle accident two to three years prior to entering service. She added that per the literature, chronic low back pain was defined as pain that lasts longer than 3 months and that the Veteran’s total service time was approximately 5 weeks. However, the examiner failed to address whether the injury clearly and unmistakably pre-existed service and whether it was clearly and unmistakably aggravated as a result of military service and failed to provide an etiology opinion regarding the other diagnosed back conditions. The Board remanded the issue in February 2017, and again in April 2017 to obtain a new VA examination and associate Workman’s Compensation benefits records that the Veteran filed for her back injury while employed with a civilian employer in May 2009. An April 2017 VA examination that was afforded to the Veteran was found to be inadequate after the examiner relied solely on a lack of documented back strain diagnosis or treatment while the Veteran was on active duty in offering a negative opinion. See Dalton v. Nicholson, 21 Vet. App. 23(2007) (finding that an examination is inadequate where the examiner relied on lack of evidence in service treatment records to provide a negative opinion). In addition, service records showed that the Veteran’s report of low back pain and diagnosis during service when she was evaluated by the Medical Evaluation Board immediately prior to her discharge from the military, which was not noted by the examiner. See August 1995 Service Treatment Records (STRs). Therefore, the opinion was found to be based on an inaccurate factual basis. A February 2019 VA examination was afforded to the Veteran, in which the examiner opined that “the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.” The examiner reasoned that a motor vehicle accident would generate much higher kinetic energy and ability to create chronic pain from blunt force trauma than what would result from 4-5 weeks of physical training with an emphasis on conditioning to improve physical stamina in basic training. The examiner attributed the Veteran’s lower back condition to her pre-service motor vehicle accident, and not to her short period of service. During the February 2019 VA examination, the examiner observed that the symptoms of degenerative arthritis, radiculopathy and intervertebral disc syndrome (IVDS) of the thoracolumbar spine found during the April 2016 VA examination had resolved and as a result, no opinion was offered regarding the etiology of these symptoms. The examiner reviewed the Medical Examination Board proceeding from August 1995, which notes that chronic low back pain existed prior to service and was not permanently aggravated by service. The examiner observed that the Veteran signed a statement agreeing to the Medical Examination Board’s findings and conclusion regarding her separation from the military service due to her pre-existing back injury and that she expressly agreed that her back condition pre-existed service and was not aggravated in-service. See September 1995 Request for Separation and Waiver of PEB Evaluation. The examiner also noted an August 2009 progress note, which indicated that the Veteran complained of low back pain while she was working at the post office in May and August 2009. The examiner highlighted that the note added that the Veteran was involved in a recent motor vehicle accident, which worsened her back pain. See May 2009 Private Treatment Record. A December 2009 follow-up note shows that the she reported “low back pain sustained from an injury at work,” and during a November 2009 follow-up informed the practitioner that she would be pursuing a Workman’s Compensation Claim. The examiner concluded that the current level and severity of the back pain is what would be expected following multiple motor vehicle accidents after reviewing an October 2011 progress note which noted complaints of back, leg and arm pain secondary to the motor vehicle accident. Progress notes from May 2011 confirm the examiner’s findings that she sought treatment for back pain after the second motor vehicle accident. See May 2011 Private Treatment Records. Regarding the first part of its analysis of the presumption of soundness, the Veteran agrees that she incurred a low back injury in a motor vehicle accident prior to service. The Veteran is competent to describe her motor vehicle accident and any associated treatment and symptoms. Accordingly, the pre-existence of the injury appears to be undebatable. The Board finds the medical evidence of record considered collectively to date is competent and credible and shows that the Veteran’s back condition was clearly and unmistakably not aggravated as a result of her military service. Regarding the concern of the April 2017 examiner, this relates to the fact that the nature of the Veteran’s complaints in service does not suggest or identify an actual injury, such as a strain or sprain. Rather, she complained of pain associated with physical conditioning exercises, such as sit-ups, pushups, and flutter kicks. The diagnosis at the time was chronic pain. Thus, the service treatment records do not identify a specific low back injury or disease in service. As previously found by the Board, this finding alone is not adequate to rebut the presumption of soundness; however, it does indicate that there was no worsening of the pre-existing low back disorder. The Board finds that the February 2019 examiner adequately addressed both prongs necessary to rebut the presumption of soundness, and adequately addressed whether there is a nexus between any current low back disorder and the symptoms reported in service. The examiner made explicit findings pertinent to the presumption of soundness and included a rationale based on the evidence. The opinion is supported by the other evidence indicating a lack of worsening associated with the Veteran’s complaints of pain with specific exercises. While the Veteran is competent to testify to the persistence of lay-observable symptoms of her lower back condition, the Veteran is not competent to relate any current lower back disability to temporally remote physical conditioning exercises in service, as to do so requires expertise as a medical practitioner in the appropriate field, which the Veteran has not claimed to possess. Jandreau, 492 F.3d 1372. See 38 C.F.R. §§ 3.303, 3.309. Based on the foregoing, it is clear and unmistakable that the Veteran’s current low back disorder pre-existed service and was not aggravated by service. There was no increase in the pre-existing disability shown during service. Thus, entitlement to service connection for low back disorder is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim for service connection for a low back disorder, the benefit-of-the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, supra. L. CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.