Citation Nr: 21067239 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-28 345A DATE: November 3, 2021 ORDER Entitlement to service connection for a lumbar spine disability is granted. FINDING OF FACT The Veteran's pre-existing lumbar spine disability was aggravated during active military service. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C. § 1110, 1153, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army National Guard with periods of active duty service from August 1982 to November 1982 and from July 2009 to July 2010. This matter comes before the Board of Veteran's Appeals (Board) from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A hearing was held before the undersigned Veterans Law Judge (VLJ) in October 2021. Service Connection Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in the examination reports are to be considered as "noted." See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air 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). This standard is further explained in 38 C.F.R. § 3.306 (b), which provides that clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service condition underwent an increase in severity during service. That notwithstanding, 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 C.F.R. § 3.306 (b). In other words, the presumption of aggravation only arises "where the pre-service disability underwent an increase in severity during service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). If the presumption of aggravation arises under 38 U.S.C. § 1153, then the burden shifts from the Veteran, to the government to rebut by clear and unmistakable evidence the pre-existing condition was not aggravated during service, or by establishing that any increase in disability is due to the natural progression of the pre-existing condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Cotant v. Principi, 17 Vet. App. 117, 131 (2003); VAOPGCPREC 3-03, 69 Fed. Reg. 29178 (2004); see also Wagner and Hunt, supra. In deciding a claim based on aggravation, the question turns on whether there has been any measurable worsening of the condition during service, and then on whether such worsening constitutes an increase in disability. Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). Temporary of intermittent flare ups of a pre-existing condition during service are not sufficient to be considered aggravation unless the underlying condition, as contrasted to symptoms, has worsened. Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. at 296-97. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Entitlement to service connection for a lumbar spine disability The Veteran is seeking service connection for a lumbar spine disability which he contends is etiologically related to his active duty service. The Veteran's service treatment records (STRs) reveal that the Veteran received treatment for a back injury incurred when moving tires while on active duty service in February 2010 and was placed on permanent profile in November 2012 for subsequent back pain. A private medical record from April 1999, co-located with the Veteran's STRs, also reveals that the Veteran received treatment for back pain in April 1999. The Veteran received VA examinations regarding the nature and etiology of his claimed lumbar spine disability in May 2014, September 2014, and October 2014. The May 2014 examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine, but did not provide an opinion regarding etiology. Subsequently, the September 2014 VA examiner, after a review of the record, stated that he was unable to provide an opinion "without resorting to mere speculation" but failed to provide any further explanation. The October 2014 examiner, conversely, found that the Veteran's "[m]ilitary duties such as wearing gear, marching, carrying backpacks and equipment, and doing work assignments as a mechanic could readily worsen existing back disease." Additionally, in support of his claim, the Veteran submitted a private medical opinion from his treating physician dated March 2015. Following a review of the Veteran's STRs and VA treatment records, the physician opined that the Veteran's lumbar spine disability is most likely the result of the aforementioned February 2010 back injury experienced by the Veteran during active duty service. By way of rationale, the physician stated that the "Veteran's low back pain [. . .] is more likely than not related to the trauma he experienced in his military service, because the injury and resultant complaints/symptoms are the same symptoms he is currently experiencing." Having reviewed the medical evidence of record, the Board finds that the October 2014 VA medical opinion to be more probative than the September 2014 VA medical opinion as it adequately addresses the progression of the Veteran's lumbar spine disability before, during, and after his most recent period of active duty service. Conversely, the September 2014 medical opinion is inadequate as it fails to provide an opinion regarding the nature and etiology of the Veteran's claimed lumbar spine disability nor an explanation regarding why such an opinion cannot be reached. Regarding the March 2015 private medical opinion, the Board observes that the examiner determined a positive nexus between the Veteran's February 2010 back injury and his present disability through continuity of symptomatology, but does not address the Veteran's 1998 back injury and subsequent treatment. Thus, from the foregoing, the Board finds the October 2014 VA medical opinion to be the most probative of record. The Board finds that the evidence of record demonstrates that the Veteran's pre-existing lumbar spine disability underwent an increase in severity while in service. Medical records indicate that the Veteran had a lumbar spine disability beginning in 1998, between periods of active duty service, which was treated conservatively. Back complaints were noted in the Veteran's STRs, with a permanent profile being issued following the Veteran's February 2010 back injury, and eventually release from active duty service partially due to back pain. Accordingly, the Board finds that the Veteran's back disability worsened during his period of active duty service from July 2009 to July 2010. The Board observes that clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. See 38 C.F.R. § 3.306 (b); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Here, there is no evidence rebutting the presumption of aggravation. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that a pre-existing lumbar spine disability was aggravated due to military service. Accordingly, the claim for service connection for a lumbar spine disability is granted. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.