Citation Nr: 20043635 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-06 055 DATE: June 29, 2020 ORDER Service connection for a low back disability is denied. FINDING OF FACT The Veteran has a current lumbar degenerative joint disease; the preexisting low back disability of chronic lumbosacral strain was noted at service entrance; the low back disability, which was noted at service entrance, did not undergo an increase in severity during service beyond its natural progression. CONCLUSION OF LAW The preexisting low back disability was not aggravated by active service; therefore, the criteria for service connection for a low back disability, including lumbar degenerative joint disease, are not met. 38 U.S.C. §§ 1101, 1110, 1132, 1137, 1153, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from March 1968 to October 1969. This matter is on appeal from a June 2013 rating decision. The Board finds that the duties to notify and assist the appellant in this case have been fulfilled. Neither the Veteran nor the evidence has raised any specific contentions regarding the duties to notify or assist. Service Connection Legal Authority 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; 38 C.F.R. § 3.303(a). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such 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; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service based on 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. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered 'aggravation in service' unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1132. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Service Connection Analysis The Veteran contends that the current low back disability was aggravated by a back injury sustained during service. He seeks service connection on this basis. After consideration of the lay and medical evidence of record, the Board finds that service connection for a low back disability is not warranted. As explained below, the evidence shows that the Veteran had a pre-existing low back disability, which was "noted" at entrance into active service and did not increase in severity during active service. The evidence shows that the Veteran's low back disability pre-existed military service, as recent lumbosacral strain and use of a back support were "noted" at service entrance. Thus, the presumption of sound condition as it relates to the low back disability is not applicable. Because a pre-existing low back disability was "noted" upon entrance to active service, service connection may be granted only if it is shown that the low back disability was aggravated by service, that is, if the pre-existing low back disability was worsened in severity beyond its natural progression during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Where a disorder is noted on service entrance or a veteran is otherwise not presumed sound on entrance, 38 U.S.C. § 1153 applies. A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service (presumption of aggravation), 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. In such claims of pre-existing disability, the veteran (the evidence of record) bears the burden of showing that there was an increase in disability during service to trigger the presumption of aggravation. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only if this burden is met does the burden of proof shift to VA to prove non-aggravation (by clear and unmistakable evidence). The Board next finds that the weight of the evidence demonstrates that the pre-existing low back disability did not increase in severity during active service beyond its natural progression, that is, was not aggravated by service. The service treatment records show treatment for low back pain on several occasions from June 1968 to November 1968; however, the September 1968 service medical provider noted full range of motion of the lumbar and thoracic spine, a negative neurologic examination, and a normal thoracolumbar spine x-ray with no disease of the thoracic or lumbar spine found. The November 1968 service medical provider attributed the Veteran’s intermittent right paralumbar aching pain with radiation to the right flank to the pre-existing chronic lumbosacral strain and prescribed medication and use of a back brace. At service separation in October 1969, the spine and musculoskeletal system were clinically evaluated as normal, and the service medical examiner attributed the Veteran’s reported back trouble to a back condition that existed prior to service. The earliest evidence of low back arthritis is not shown until 2012, approximately 43 years after service. After review of the record and examination of the Veteran, in an April 2013 addendum, the January 2013 VA examiner opined that the pre-existing low back disability was not aggravated beyond its natural progression by service. In support of the medical opinion, the January 2013 VA examiner noted that there were in-service findings of low back complaints, specifically right flank pain, in 1968 and thereafter but the 1998 magnetic resonance imaging (MRI) did not reveal significant musculoskeletal findings; therefore, with objective findings, it is less likely than not that the Veteran’s degenerative joint disease of the thoracolumbar spine was aggravated beyond the course of its normal progression by his military service. Because the January 2013 VA examiner had adequate facts and data to provide the medical opinion and supported the medical opinion with sound rationale, the April 2013 VA medical opinion is of significant probative value. There is no competent medical opinion to the contrary of record. For the foregoing reasons, the Board finds that the weight of the evidence demonstrates that the preexisting low back disability did not increase in severity during service beyond its natural progression - i.e., it was not aggravated by service; therefore, the criteria for service connection for a low back disability, based on aggravation in service, have not been met. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferguson, 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.