Citation Nr: 21002652 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-01 823 DATE: January 14, 2021 ORDER Entitlement to service connection for a lower back disability is denied. FINDING OF FACT The Veteran’s lower back disability clearly and unmistakably existed prior to active service and was not aggravated during service. CONCLUSION OF LAW A lower back disability clearly and unmistakably pre-existed active service and was not incurred or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1976 to October 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In August 2019, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for a VA examination and opinion on the Veteran’s lower back disability. In March 2019, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Entitlement to service connection for a lower back disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran 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, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The record clearly establishes the presence of the disability claimed. The September 2020 VA examiner reports that the Veteran has a lumbosacral strain and degenerative arthritis of the spine. As the first element of service connection, a present disability, is demonstrated, the Board must now determine whether an in-service injury occurred. The Veteran contends that he aggravated his lower back condition in service. At his March 2019 Board hearing, the Veteran stated that he had to lift generators for jet engines. A September 2014 VA examination disability benefits questionnaire states that the Veteran reported that he sustained a back injury during his time in service when he was removing an auxiliary fuel tank from an aircraft. A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Only such conditions as are recorded in examination reports are to be considered as “noted.” 38 C.F.R. § 3.304(b). The Veteran’s spinal and other relevant systems were normal at his September 1976 enlistment examination. Therefore, a chronic disability was not “noted” at the enlistment examination, and the presumption of soundness is for application. The presumption of soundness can be rebutted if clear and unmistakable evidence demonstrates that the disease or injury existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111. 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 progression 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 active service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent service. 38 C.F.R. § 3.306. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence of aggravation unless the underlying condition worsened. See Davis v. Principi, 276 F.3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Although the presumption of soundness applies to the current case, the Board finds that it is rebutted. The record contains lay and medical evidence establishing that the Veteran’s lower back disability existed prior to active duty service. Service treatment records from May 1977 indicate that the Veteran reported that he injured his lower back when he was 13 or 14 years old and he fell six feet and landed on his back. The Veteran has consistently confirmed this childhood injury in treatment records, in an April 2010 Statement in Support of Claim, and at the March 2019 hearing. The September 2020 VA examiner found that the etiology of the Veteran’s low back pain is clearly from his fall from six feet high onto concrete when he was 14 years old. Thus, the medical and lay evidence establishes that a lower back condition clearly and unmistakably pre-existed the Veteran’s entrance into active duty service and was clearly and unmistakably not aggravated therein. The remaining question for the Board is whether the evidence clearly and unmistakably shows that there was no increase in disability during service or that any increase in disability was due to the natural progression of the condition. See Wagner, 370 F.3d at 1096. With respect to whether the lower back disability was clearly and unmistakably not aggravated by service, service and post-service records weigh against a finding of aggravation. The September 2020 VA examiner opined that the Veteran’s lower back condition was not worsened beyond the normal progression by any event, injury, or illness during active duty. The examiner noted that the May 1977 report for the Veteran’s lone in-service treatment for lower back pain attributed the condition to his pre-service fall. The May 1977 treatment note states that the Veteran’s back was bothersome while standing for short periods of time. The September 2020 examiner also noted that a July 2018 physical therapy record for the Veteran states that the Veteran reported he did heavy lifting in the Navy but also was required to do heavy labor in his post-military career. The examiner noted that the Veteran’s current lower back pain is consistent with his complaints of low back pain after his fall at age 14. Furthermore, the examiner stated that the Veteran’s degenerative disc disease that was noted on imagining in 2020 is caused by normal age-related wear and tear. The Board finds that the objective medical evidence, as well as the contents of the Veteran’s service and post-service treatment records, establish that the Veteran’s lower back disability clearly and unmistakably existed prior to service and was not aggravated therein. The Board acknowledges that the Veteran is competent to describe symptoms that he is able to perceive through the use of his senses. While the Veteran believes his lower back injury was aggravated in service, the Board finds the VA examiner’s opinion more probative because the examiner has the specialized education, training, and experience needed to make medical determinations. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Further, the Veteran did not submit any private etiological opinions, which makes the September 2020 VA opinion the only competent etiological opinion of record. Thus, the claim must be denied. In reaching its decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals J. Morgan Attorney for the Board 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.