Citation Nr: 21063647 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 13-24 971 DATE: October 15, 2021 ORDER Entitlement to service connection for lumbar spine arthritis is granted. FINDINGS OF FACT 1. There is no clear and unmistakable evidence that the Veteran's lumbar spine disability preexisted his military service. 2. Since his separation from service, the Veteran has experienced continuity of lumbar spine symptomatology that eventually resulted in a diagnosis of arthritis. CONCLUSION OF LAW The criteria for entitlement to service connection for lumbar spine arthritis are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from June 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The Board remanded this matter in October 2015, June 2018 (after reopening the claim), March 2020, and February 2021. The Veteran asserts that his lumbar spine disability had its onset in service in conjunction with his duties, and that he has experienced continuous symptoms of this disability since separation from service. See July 2021 Appellant's Brief; April 2015 Board hearing transcript (Tr.) at 12. The Board agrees. A veteran is presumed to be in sound condition where he or she is examined, accepted, and enrolled in service, except for defects noted at service entry. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where a defect is not noted at service entry, the presumption of soundness is not rebutted unless there is clear and unmistakable evidence that a disability preexisted service and was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions, but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Initially, the Board notes that it has remanded this case multiple times in an attempt to get an adequate nexus opinion, and all such attempts have been unsuccessful. In this regard, the most recent April 2021 VA examiner indicated that he could not render an opinion as to whether the Veteran's lumbar spine disability is the result of the cumulative impact of his duties without resorting to speculation, noting a lack of documented treatment of the condition. As the examiner did not adequately address the lay reports of record as instructed by the Board, this opinion is of no probative value. At this point, a request for another opinion would simply be obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Andrews v. McDonough, 34 Vet. App. 151 (2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim."). Thus, the Board will proceed on the merits with the record as it stands. In this case, there is a question as to whether the Veteran's lumbar spine disability preexisted his military service. In this regard, the Veteran testified at his April 2015 Board hearing that he was in a motorcycle accident at age 13 that resulted in injuries to his knees and back. See Tr. 3, 11-12; see also November 1987 VA hospital discharge summary (noting Veteran's reports of chronic low back pain since a motorcycle accident at age 12). The Veteran's April 1971 enlistment examination and Report of Medical History are absent of any notations of a back disability. Therefore, with respect to a lumbar spine disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b), and to rebut this presumption there must be clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. Id.; see also Wagner, 370 F.3d at 1096. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v Shinseki, 22 Vet. App. 390, 396 (2009). The Veteran's lay reports of a pre-service accident and ensuing back problems do not constitute clear and unmistakable evidence of a diagnosed medical condition that preexisted service. In fact, the March 2021 C&P examiner, who reviewed the Veteran's statements, noted that "[t]here is no medical evidence of a pre-existing back condition (to include scoliosis)," and that all documentation of back problems post-date the Veteran's service separation. Moreover, a December 1971 service treatment record (STR) notes a pre-service motorcycle accident, but only mentions a knee injury as a result of the accident. The only evidence of a pre-service injury and/or back disability is the Veteran's lay report, which is not sufficient to rebut the presumption of soundness in this case, given the more contemporaneous normal enlistment examination. Furthermore, the Veteran's lay report that he hurt his back before service does not constitute a medical diagnosis of a lumbar spine disability. Thus, the Board finds that the presumption of soundness cannot be rebutted by clear and unmistakable evidence. Accordingly, the claim becomes one for direct service connection. See Wagner, 370 F.3d 1089 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that the claim is converted into a normal claim for service connection). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection is warranted for certain chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis and DDD, that are shown to be chronic in service or that began in service and there is a continuity of symptomatology to the present. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, the Veteran has been diagnosed with degenerative arthritis of the spine and degenerative disc disease (DDD). See March 2021 and October 2019 C&P examinations. The Board notes the April 2021 examiner explained why it is more likely than not that the Veteran does not have scoliosis and the Board finds the examiner's rationale adequate. Specifically, the examiner explained that scoliosis is "sometimes a radiographic interpretation" due to "positional aberrancy related to the radiographic technique, or related to postural adaptation to asymmetric pain in lower extremities." The examiner reasoned that since the recent CT scan and current lumbar spine x-ray do not show scoliosis and there was no clinical finding of scoliosis on examination, "it can be safely concluded that the February 1991 VA X-ray report noting levoscoliosis in the lower lumbar region was most likely an apparent curvature due to positioning of the claimant by the radiology tech." Thus, the Board concedes the presence of lumbar spine arthritis, but not scoliosis. The record also demonstrates that the Veteran has consistently reported continuous symptoms of a lumbar spine disability in and since service separation in February 1972, and the Board finds his reports credible. See January 1982 VA medical certificate (diagnosis of low back pain); January 1985 VA medical certificate (noting back problems for 10 years); February 1985 VA medical certificates (diagnosis of recurrent low back pain; complaints of low back pain since 1971 while in service); March 1985 VA medical record (history of recurrent episodes of low back pain for 11 years); November 1987 VA psychiatric record (chronic low back pain); December 1987 VA medical record (reports of back pain since 1971); August 1990 VA psychiatric discharge summary (history of lower back pain); April 2015 Board Hearing Transcript (presence of low back pain that has persisted since service). Given the above-cited evidence, the criteria for entitlement to service connection for lumbar spine arthritis based on continuity of symptomatology are met. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.