Citation Nr: 21061444 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 15-32 907 DATE: October 4, 2021 ORDER Entitlement to service connection for a low back disorder, to include lumbar degenerative disc disease and lumbar strain, is granted. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to service-connected lumbar strain and degenerative disc disease, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected lumbar strain and degenerative disc disease, is remanded. Entitlement to service connection for a left foot disability, to include as secondary to service-connected lumbar strain and degenerative disc disease, is remanded. Entitlement to service connection for a right foot disability, to include as secondary to service-connected lumbar strain and degenerative disc disease, is remanded. FINDINGS OF FACT 1. Clear and unmistakable evidence demonstrates that a low back disability preexisted the Veteran's active duty service; however, clear and unmistakable evidence that demonstrated that this disability was not aggravated during service beyond the normal progress of the disorder has not been shown. 2. The Veteran's current lumbar spine disorders of degenerative disc disease and lumbar strain are of service origin. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a low back disability, to include degenerative disc disease and lumbar strain, have been met. 38 U.S.C. §§ 1110, 1111, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1968 to July 1971. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a December 2013rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a February 2019 decision, the Board denied service connection for low back, left and right knee, and left and right foot disorders. Thereafter, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2021 memorandum decision, the Court reversed the Board's finding that the Veteran's back condition was not aggravated by service and vacated the February 2019 Board decision and remanded all claims for actions consistent with the Court decision. Low Back The Veteran contends that a pre-existing low back disability was aggravated by his period of active service. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111. The term "noted" in 38 U.S.C. § 1111 refers to "[o]nly such conditions as are recorded in examination reports." 38 C.F.R. § 3.304(b). A pre-existing disease or injury will be considered to have been aggravated by military 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(a). 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. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. Aggravation may 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 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). A preexisting 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, 1 Vet. 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). The Board's determination that clear and unmistakable evidence has been shown is a legal one, which the Court reviews de novo. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). In presumption of soundness cases, "VA may not rest on the notion that the record contains insufficient evidence of aggravation." Id. To carry his evidentiary burden, the Secretary must produce evidence that the veteran's preexisting injury was not aggravated by service. Id. at 239 ("It is lack of aggravation that the Secretary must prove, not lack of an injury."). The "clear and unmistakable evidence" standard requires the Secretary to produce evidence that supports a finding in an undebatable manner. Id. at 235. " The clear and unmistakable evidence standard is an 'onerous' one." Id. On an August 1967 pre-induction examination, the Veteran's spine was noted to be abnormal and he was referred to orthopedics for clearance. The orthopedic consultation report indicated that the Veteran stated he had recurrent low back pain dating back to a fall from a horse at age 19. He noted that he wore a corset periodically since then when his back became symptomatic. The examiner noted that an examination of the spine revealed a normal contour, normal flexibility, and no muscle spasm or tenderness. X-rays of the Veteran's spine showed spina bifida occulta of the S-1 segment, but such was noted to be a "clinically insignificant finding." There was evidence of an old, mild juvenile round-back deformity but the examiner stated that "this is not thought to be clinically significant at this time." The Veteran was given orthopedic clearance for full, unrestricted military duty. On his July 1968 entrance examination, the Veteran's spine was noted to be objectively normal. On the accompanying report of medical history, however, the Veteran indicated he had recurrent back pain which the examiner described as "lumbar strain, chronic, mild." As a back disability was not "noted" on the entrance examination, the Veteran is entitled to a presumption of soundness. Accordingly, the Board must determine whether, under 38 U.S.C. § 1111, the presumption of soundness is rebutted by clear and unmistakable evidence. The burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence both that a disability existed prior to service and that it was not aggravated during service. See Wagner v. Principi, 370 F 3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). After reviewing the evidence of record, the Board finds, first, that the Veteran's low back disability clearly and unmistakably preexisted service. The Veteran's service treatment records include an August 1967 letter from Dr. S. C., who indicated that x-rays of the Veteran's spine showed angulation of the sacrum upon the fifth lumbar vertebrae and decreased L5-S1 interspace. Dr. S. C. stated that it was "anticipated that he will continue to have difficulty but would benefit from a Mac Ausland lumbo-sacral device and restricted activity." The Veteran has also asserted that his back disability pre-existed service. On his January 2013 claim, the Veteran indicated that he was being treated for a back injury when he was drafted in July 1968 and that he was wearing a back brace at entrance. On his September 2015 VA Form 9, the Veteran again reported that his back condition was pre-existing and that the Army was aware of the condition upon entrance. It is also found probative that the Veteran noted "recurrent back pain" on his entrance report of medical history. Therefore, the Board finds clear and unmistakable evidence that the Veteran's low back disability clearly and unmistakably preexisted service. The question next becomes whether the evidence also demonstrates that the Veteran's low back disability clearly and unmistakably was not aggravated by service. In the prior Board decision, it was found that the evidence demonstrated that the Veteran's low back disability clearly and unmistakably was not aggravated by service. The Court, in its March 2021 memorandum decision, found that reversal was the proper remedy in this case. The Court found that the 2013 examination report was clear in both its findings and reasoning. It noted that after reviewing the Veteran's medical files, the examiner relied entirely on negative evidence, namely a lack of in-service or post-service treatment records, to reach his conclusion that the Veteran's back condition was not aggravated by service. The Court observed that the examiner provided a short rationale in support of his opinion, and that rationale relied on three pieces of evidence. First, the examiner noted that the Veteran's service treatment records (STRs) did not document any complaints of back pain after the Veteran's initial complaint in 1968. Second, the examiner relied on the Veteran's separation examination which found no defects in the Veteran's spine. Finally, the examiner observed that the Veteran's post-service medical records did not include any evidence of treatment for the Veteran's back until 2006. The Court noted that the central premise of the examiner's opinion was that no aggravation could have occurred because the record lacked affirmative evidence of aggravation. The Court stated that by relying on the 2013 opinion, the Board failed to properly apply the "clear and unmistakable evidence" standard to determine whether the presumption of soundness had been rebutted. The Court indicated that the Board's conclusion that the record did not affirmatively show aggravation was insufficient to support a finding of clear and unmistakable evidence that the Veteran's condition was not aggravated by service. It noted that the Secretary may not rely on an absence of evidence to rebut the aggravation prong of the presumption of soundness because doing so "effects an impermissible burden shift." It stated that aggravation was presumed in these circumstances and it was solely the Secretary's responsibility to prove that the Veteran's condition did not worsen during service. It indicated that clear and unmistakable evidence was a strenuous evidentiary standard and the examiner's opinion simply did not provide enough affirmative evidence to meet the standard. The Court noted that the Board had a complete factual record, including all the Veteran's STRs and post-service treatment records, as well as a current VA examination report. Yet, the Board reached the erroneous conclusion that VA carried its burden. The Court noted that the Board's reasoning relied on the examiner's opinion and the examiner's opinion was based on negative evidence. The Court found that there was simply no affirmative evidence in the record to rebut the aggravation prong of the presumption of soundness. The Court indicated that the Secretary, after a full opportunity to develop the record, had not carried his burden and it was, therefore, not appropriate to afford him another opportunity to do so. The Court stated that on remand, the Board was to determine whether the Veteran had fulfilled the remaining elements for service connection-i.e., a current disability and a nexus between his in-service aggravation and his current disability. A review of the Veteran's service treatment records reveals that he was treated for back complaints on several occasions during service. In July 1968, the Veteran was seen with complaints of back pain. Back pain was again reported in October 1968. He was referred to physical therapy for back exercises at that time. The Veteran was again seen for back pain in November 1968, with a diagnosis of chronic low back strain being rendered. On his June 1971 separation examination, his spine was noted to be "normal" and he denied "back trouble of any kind" on the accompanying report of medical history. Post-service treatment records similarly do not document treatment for back pain until 2006. The Veteran has indicated that his back disability was aggravated during boot camp in service. The Veteran is clearly competent to testify to symptoms of pain that he experienced in service as such facts are within his personal observation. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (lay witnesses are competent to testify to features or symptoms of an injury or illness); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has also reported having had back pain since service. At his November 2013 VA examination, the Veteran reported that his chronic back pain had become worse. Diagnoses of lumbar strain and lumbar degenerative disc disease were rendered at that time. Following examination, the examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner noted that service treatment records showed a pre-induction exam dated in August 1967 that was notable for recurrent back pain complaint. Service treatment records also documented lumbar strain on induction exam in July 1968. The examiner further noted that service treatment records documented evaluations for back pain in 1968 and then service treatment records were negative to evaluation of back condition in 1969-1971. The examiner also indicated that the June 1971 separation examination was negative for "back trouble of any kind." He further observed that other medical documentation provided in the c-file included an office note in 2004, which was negative for back, foot or knee condition and that evaluation and treatment for back pain was documented during exams starting in 2006. The Board finds that the Veteran's current low back disorders of lumbar strain and degenerative disc disease of the lumbar spine were incurred in service. The Veteran has provided credible evidence of in-service back problems, which are verified by service treatment records noting back symptomatology throughout service. He has also reported having had continuous back symptomatology since service. With regard to the November 2013 VA examiner's opinion that the Veteran's low back disorder was less likely than not related to his period of service, this was based upon the examiner reporting that the claims folder was silent for care until 2006, and no findings of a low back disorder until 2006. The examiner did not take into account the Veteran's reports of continuity of symptoms since service when rendering his opinion. In this regard, the Board finds the Veteran's statements as to continuous symptoms to be credible, despite some inconsistencies. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). Therefore, as the evidence is in relative equipoise, the Board finds that the Veteran experienced low back symptomatology since service discharge. As such, the evidence demonstrates credible evidence of in-service back symptoms, unremitting back problems since service; and that the Veteran currently has lumbar strain and degenerative disc disease of the lumbar spine. For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for lumbar strain and degenerative disc disease of the lumbar spine is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND As service connection for degenerative disc disease and lumbar strain has been granted, the issue of service connection for left and right knee and left and right foot disorders on a secondary basis must be addressed. In this regard, while the November 2013 VA examiner indicated that the Veteran's lumbar spine disorder did not cause any knee or foot disorder, he did not address the question of aggravation. Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996). Moreover, it has been over seven years since the Veteran was last afforded a VA examination. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain all outstanding VA and/or private treatment records related to the Veteran's outstanding claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. Thereafter, schedule the Veteran for an examination to determine the nature and etiology of any current knee or foot disorder. All indicated tests and studies are to be performed and all findings must be reported in detail. The claims folder must be reviewed by the examiner and the examiner should note such review in his/her report. The examiner is requested to render the following opinions: Is it as likely as not (50 percent probability or greater) that any left/right knee or left/right foot disorder is caused by the service-connected lumbar strain and degenerative disc disease? (Continued on the next page) If not, is it at least as likely as not (50 percent probability or greater) that any left/right knee or left/right foot disorder is aggravated by the service-connected lumbar strain and degenerative disc disease? Complete detailed rationale is requested for each opinion that is rendered. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. S. Kelly, 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.