Citation Nr: 20046687 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 14-38 530 DATE: July 13, 2020 ORDER Entitlement to service connection for residuals of a T12 fracture (claimed as lower back condition) is granted. FINDING OF FACT The Veteran’s pre-existing back disability was aggravated beyond its natural progression by his period of active service. CONCLUSION OF LAW The criteria for service connection for residuals of a T12 fracture are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with active duty with the United States Army National Guard from December 1972 to March 1973. A Board decision in September 2018 denied the Veteran’s claim of entitlement to service connection for residuals of a T12 fracture. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in July 2019, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, to vacate the Board’s decision and remand the case for further adjudication in accordance with the JMR. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. 1. Entitlement to service connection for residuals of a T12 fracture The Veteran claims entitlement to service connection for residuals of a T12 fracture, claimed as a lower back disability. Specifically, the Veteran contends that a pre-existing lower back injury was aggravated during his period of active service. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is also available for a pre-existing condition, provided it was aggravated during service beyond the course of its natural progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Under VA regulations, 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 disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.§§1111, 1137. Only such conditions as are recorded in examination reports are considered as noted at enlistment. 38 C.F.R. § 3.304(b). A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during service. However, aggravation may not be conceded where, on the basis of all of the evidence of record, the disability underwent no increase in severity during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. In order to rebut the presumption of aggravation, there must be clear and unmistakable evidence that the increase in severity was due to the natural progress of the disability. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity. Townsend v. Derwinski, 1Vet. App.408 (1991); 38 C.F.R. § 3.306(a). In contrast, a flare-up of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Hunt v. Derwinski, 1 Vet. App.292, 296-97 (1991). Evidence of the veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder is not presumed to have been aggravated by service. Verdon v. Brown, 8 Vet. App.529 (1996). In the present case, the Veteran entered active duty service in December 1972. Though the Veteran’s claims file does not contain his report of medical examination at enlistment, the claims file does contain an active duty report noting that the Veteran identified a pre-existing back injury prior to his enlistment. In addition, at an April 2016 hearing before the undersigned Veterans Law Judge (VLJ), the Veteran testified that he noted his pre-existing back injury prior to enlistment but was allowed to proceed basic training. A February 1973 military medical note states that the Veteran’s has pre-existing “D-12 fracture” from October 1972 that was “well healed by now”. However, that same report notes that the has experienced remaining symptoms of pain and limited function since the fracture and determines that the Veteran does not meet induction standards and should be considered for separation. Accordingly, the Board finds that there is clear and unmistakable evidence that the Veteran’s pre-existing back injury was noted was noted at entry. See 38 U.S.C. §§ 1111, 1137; 38 C.F.R. § 3.304(b). Therefore, the question before the Board is did the Veteran’s active duty service aggravate his pre-existing lower back disability beyond its natural progression. In an April 2016 hearing before the undersigned, the Veteran testified that during basic training in early 1973, he fell from a horizontal ladder aggravating his pre-existing back injury. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). In February 2012, the Veteran completed a VA back (thoracolumbar spine) conditions examination. At the examination, the Veteran reported that his lower back disability was aggravated during basic training. Following a review of the Veteran’s medical records, service treatment records, and in-person examination of the Veteran, the February 2012 examiner opined that it was less likely than not that the Veteran’s pre-existing back injury was aggravated during service. However, the February 2012 VA examiner’s rationale for denying aggravation failed to discuss why the Veteran’s pre-existing back disability was not aggravated during active service. An inadequate examination can never rise to the level of clear and unmistakable evidence. Accordingly, the Board finds the presumption of aggravation applies. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In addition, in November 2019, the Veteran submitted a private medical opinion from his treating physician stating the Veteran’s pre-existing back disability was aggravated by the Veteran’s period of active service. The private medical physician is the Veteran’s treating provider, has reviewed the Veteran’s entire medical history, and has completed multiple in-person examinations of the Veteran. The physician opined: After a review of the pertinent records it is my professional opinion that it is more than likely that [the Veteran’s] condition is a direct result of his fall as due to his military service. In my personal experience and in the medical literature it is known that a fall from a height can cause and/or exacerbate low back pain and/or a vertebral fracture, both of which were present in 1973. Despite these conditions and the advice of his orthopedic surgeon, he was sent to basic training with no apparent restrictions on activity, during which he sustained injuries which appear to have led to his chronic back pain. Based on the probative medical evidence of record, the Board finds that it is more likely than not than the Veteran’s pre-existing back disability was aggravated by his of active service. Entitlement to service connection for residuals of a T2 fracture is granted. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.