Citation Nr: 21064366 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 20-01 694 DATE: October 19, 2021 ORDER New and material evidence has been received to reopen the claim of service connection for spinal stenosis. REMANDED Entitlement to service connection for spinal stenosis is remanded. Entitlement to service connection for a back disability, to include degenerative disc disease and stenosis, is granted. FINDING OF FACT Service connection for spinal stenosis was last denied in an unappealed November 2014 rating decision; evidence received since that rating decision is new and relates to an unestablished fact necessary to substantiate the claim. CONCLUSION OF LAW The criteria to reopen the claim of service connection for spinal stenosis have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1957 to March 1959. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2018 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing. A copy of the transcript is associated with the claims file. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for spinal stenosis. VA may reopen and review a claim, which has been previously denied, if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Service connection for spinal stenosis denied in an unappealed November 2014 rating decision due to a lack of a causal link to service. New and material evidence was not received within a year of notice of the decision. See 38 C.F.R. § 3.156(b). The Veteran did not initiate an appeal of this decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. In May 2018, VA received an application to reopen the claim. Upon review, the Board finds that new and material evidence sufficient to reopen the claim has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. The evidence received since the last final denial includes VA treatment records, a July 2018 VA examination report that includes a VA examiner's nexus opinion, a May 2021 Board hearing transcript containing testimony of the Veteran discussing his in-service injuries and his symptoms during and after service, and a nexus opinion from his private clinician dated in September 2021. Some of the evidence is new, as it was not previously considered by the RO, and it is material, as it relates directly to the element not previously established causal nexus. In particular, the favorable nexus opinion from the private clinician raises a reasonable possibility of substantiating the claim. Therefore, the appeal is reopened. REASONS FOR REMAND Entitlement to service connection for spinal stenosis is remanded. Having reopened the appeal, a remand is required because the medical opinions of record do not provide the Board with sufficient clarity so as to proceed with adjudication at this time. Service treatment records include a March 1957 Report of Medical History (RMH) which shows the Veteran reported 'back trouble.' During his enlistment examination, however, a back disorder was not identified upon clinical evaluation. Hence, the Veteran is presumed to have been in sound condition upon entering service. Where there is no preexisting condition noted upon entry into service, such as in this case, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that the condition preexisted service and was not aggravated by service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). To rebut the presumption of soundness, it must be shown by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F. 3d at 1096. A brief review of the service treatment records reflects that in April 1957, the Veteran lifted a piece of equipment in the company supply room, injured himself, and was diagnosed with lumbosacral strain. A June 1957 orthopedic clinic treatment record shows he was seen for recurrent lumbosacral pain radiating into right lower extremity posterior. The clinician wrote 'Believe L-S faces are sl. overriding and asymmetrical.' He was fitted with a lumbosacral support. He was seen one month later for a low back ache. A September 1957 X-ray imaging report showed his thoracolumbar and lumbosacral spine was normal in appearance as well. Records in October 1957 continue to show complaints of a backache and persistent low back pain without improvement and appear to include a note that the Veteran first developed low back pain one-and-a-half years prior, with the more recent pain having begun four days prior. A November 1957 report shows the Veteran reported the back pain in April 1957 was a recurrence of an old injury and he first felt this strain at Fort Knox in the company supply room. The report shows the injury was 'undetermined' as to whether it occurred in the line of duty. Another record appears to reflect that the medical officer believed the injury was incurred in the line of duty. Upon re-evaluation in March 1958, there was no lumbar spine limitation of motion, but the Veteran complained of some radiation of pain to his right thigh. He stated his symptoms had improved progressively, with only intermittent flare ups. An April 1958 physical profile report shows he was restricted from lifting over 10 pounds due to his recurrent low back pain with sciatical distribution; his physical profile was extended for three months. An October 1958 clinical record cover sheet shows the Veteran's lumbosacral strain was found to have been in the line of duty 'LD;' the cover sheet notes referenced the April 1957 incident when the Veteran lifted a piece of equipment at Fort Knox in the company supply room. He was placed on temporary restricted duty at this time. The December 1958 separation examination report shows his spine was found to be normal on clinical evaluation at discharge from service. In July 2018, the Veteran was afforded a VA examination. He was diagnosed with spinal stenosis and degenerative disc disease (DDD) of the lumbar spine. He reported that he hurt his back during service, was given a physical profile, and continued to have chronic lower back pains with shooting pains down his legs after service. The examiner opined that the Veteran's back disability clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. At the hearing before the undersigned in May 2021, the Veteran testified that he was treated for tight muscles prior to service, but he had no problems with his lumbar discs and was not treated for a back injury. He explained that while in basic training and going through jumps and hurdles, he slipped and fell on his back. He testified that his pain continued off and on during service, and after discharge. He further testified that after separation from service, he went to chiropractors up until 1980, when he had spinal disc surgery. The Veteran's representative has reported they were unable to obtain the post-service private treatment records, despite multiple attempts. See September 2021 correspondence. In September 2021, the Veteran submitted a medical opinion by Dr. F.G., a private orthopedic surgeon. In the introduction summary, Dr. F. G. stated that "[a]ll statements will be more or less likely as not." Dr. F.G.'s opinion was as follows: There is a more likely than not causal nexus to military service and injuries sustained during basic training of military service and the later development of lumbosacral spinal stenosis and cervical spinal stenosis. The injuries sustained during basic training combined with a condition of recurrent pain in the lumbosacral spine prior to service. [...] There is a causal nexus to events during military service which both created new injury and aggravation of a pre-existing condition. The July 2018 VA medical opinion and the September 2021 private medical opinion both suggest that the Veteran had a pre-existing back disorder, but they are in conflict as to whether the Veteran had a pre-existing back disorder that was aggravated during service. The VA examiner indicated there was no in-service aggravation, yet Dr. F.G. opined that there was. To the extent that the clinicians indicate there was a pre-existing back disorder, their opinions as written appear to be based on nothing more than the Veteran's self-reported history at his entrance examination, which does not, in itself, constitute a notation of a pre-existing condition. 38 C.F.R. § 3.304 (b)(1). Moreover, to the extent that the clinicians disagree about whether a pre-existing back disorder was aggravated in service, it cannot be said that the evidence is both clear and unmistakable that any such pre-existing back disorder was permanently aggravated in service. This is because the clinicians disagree about whether a pre-existing back disorder was aggravated in service. Moreover, neither opinion addresses whether any such aggravation was permanent in nature nor is supported with clearly explained rationale such that the Board's evaluation is a fully informed one. Further, to the extent that the VA examiner acknowledged the Veteran's report that his back pain continued after service, he appears to have rejected such history due to a "lack of evidence of any chronicity of back complaints in the recent years after active duty." This is yet another reason why the VA opinion is inadequate for adjudication purposes. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). In short, the Board finds the presumption of soundness has not been rebutted in this case. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. For these reasons, a remand is required to obtain a nexus opinion (supported with a clearly explained rationale) as to whether the Veteran's back disorder - diagnosed as lumbar spine degenerative disc disease and spinal stenosis - was incurred in service, or is otherwise etiologically related to service. The matter is REMANDED for the following action: Obtain an addendum opinion regarding whether the Veteran's current back disability was incurred in or is otherwise related to service. The examiner must review the claims file, and a complete copy of this remand as it contains important information and findings. The examiner is asked to provide a response to the following: Is the Veteran's current back disability, diagnosed as lumbar spine degenerative disc disease and spinal stenosis, at least as likely as not related to service, including his back injury in April 1957 while lifting equipment in the supply room? Please indicate why or why not in a clear and well explained rationale. In providing a rationale to support the opinion, the examiner must consider the Veteran's description of his in-service injury and symptoms, as well as his post-service symptoms. As discussed above, the Veteran asserts his back pain continued after service, at least intermittently, and that his efforts to obtain the private chiropractor records documenting treatment for his back pain were unsuccessful. The examiner is advised that a negative opinion based solely on a lack of documented treatment after service is not adequate. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and symptoms thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disabilities are known to develop? Or, in the alternative, are the Veteran's reports generally inconsistent with medical knowledge or implausible? D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.