Citation Nr: 21068758 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 15-18 637A DATE: November 12, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. Entitlement to service connection for a right hip condition is denied. FINDINGS OF FACT 1. The disabilities of leg length discrepancy, pelvic tilt, and scoliosis were noted at service entrance. 2. The evidence shows that the Veteran's pre-existing lumbar spine disability and right hip condition were not aggravated by service. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. 2. The criteria for service connection for a right hip condition have not been met. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force October 1962 to September 1966. This matter is before the Board of Veterans' Appeal (Board) on appeal from an August 2012 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). The Board previously remanded the appeal in March 2018 and July 2020, and the matter has been returned for appellate consideration. As reflected in the subsequent analysis, the development ordered by the Board in its previous remands has been completed, and the Board finds substantial compliance with its directives. SERVICE CONNECTION 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a right hip condition. The Veteran is seeking service connection for his pre-existing lumbar spine and right hip disabilities. The Veteran contends that his pre-existing conditions were aggravated during or as a result of his service. The Board will discuss the issues of service connection for a lumbar spine and right hip disabilities together as they arise from the same facts and circumstances. Service connection may be granted directly as a result of disease or injury incurred in service based on nexus using a three-element test: (1) The existence of a current 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 in or aggravated by service. See 38 C.F.R. §§ 3.303 (a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). If a pre-existing disability is noted upon entry into service, then the veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. In that case, 38 U.S.C. § 1153 applies and the burden falls on him or her, not VA, to establish aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994); 38 C.F.R. § 3.306. A preexisting 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 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. Aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. Id.; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Certain chronic diseases, including degenerative joint disease, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309(a). First, the Board notes that the Veteran's service entrance examination report showed the conditions of leg length discrepancy, pelvic tilt, and scoliosis. As such, the Veteran must show that his pre-existing leg length discrepancy, pelvic tilt, and scoliosis were aggravated (permanently worsened beyond their natural progression) during or as a result of service. Here, the preponderance of the evidence is against finding that the Veteran has shown that his claimed pre-existing disabilities were aggravated by his active service. The objective medical evidence of record fully supports that conclusion. The Veteran was afforded a March 2020 VA examination to determine the nature and etiology of his pre-existing right hip and lumbar spine disabilities. The VA examiner found that the Veteran's claimed conditions, which clearly and unmistakably existed prior to service, were clearly and unmistakably not aggravated beyond its natural progression by his active service. The July 2020 Board decision, however, found the March 2020 VA examination reports to be inadequate for rating purposes as they did not fully consider the Veteran's lay statement, specifically the Veteran's contention that his "kitchen police" duties aggravated his pre-existing conditions. To that end, the Veteran was afforded an August 2021 VA examinations to assess the etiology of his pre-existing right hip and lumbar spine disabilities. The VA examiner diagnosed the Veteran with a leg length discrepancy, degenerative arthritis of the lumbar spine and intervertebral disc syndrome. The VA examiner opined that the Veteran's pre-existing right hip and lumbar spine disabilities clearly and unmistakably existed prior to service and were clearly and unmistakably not aggravated beyond its natural progression by his active service. The VA examiner highlighted that the evidence indicates that the Veteran continued to suffer from his pre-existing disabilities during service, but his conditions were not aggravated beyond normal progression. The VA examiner acknowledged that the Veteran reported instances of right hip and back pain, but noted they were to be minor episodes with short periods of symptoms with quick recoveries, and without mention of the Veteran's scoliosis or pelvic tilt. The VA examiner held that the Veteran had, "no documented serious injuries, degenerative arthritis, or disc disease." At discharge, right hip and lumbar spine examination were silent for problems. The Veteran noted that the Veteran reported problems after service that gradually increased with time consistent with normal progression with age. The examination on July 2021 showed no evident scoliosis (the VA examine acknowledged that scoliosis may be more evident with certain positions), pelvic tilt of 15 degrees and unchanged leg length discrepancy. The VA examiner also noted the absence of documented proof that between 1962 to 1966 caused more changes to the spine, scoliosis, pelvic tilt, or leg length discrepancy than the Veteran discharge from service to 2021. The VA examiner found the Veteran's degenerative changes to be natural progression of aging, perhaps accelerated by leg length discrepancy. In this case, as to the issue of whether the Veteran's leg length discrepancy, pelvic tilt, and scoliosis, clearly and unmistakably existed prior to service, were unmistakable aggravated (during or as a result of service, the Board finds that the August 2021 VA examination report is both adequate, and it is the most probative evidence of record as it was definitive, based upon a complete review of the Veteran's entire claims file, in consideration of the Veteran's reported history, prior physical evaluation of the Veteran, and pursuant to the Board's remand instructions. Furthermore, the August 2021 examiner provided a complete and thorough rationale in support of his opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board acknowledges the Veteran's statements of symptomology related to his right hip and lumbar spine disabilities, specifically those concerning pain and his statements regarding his kitchen police duties and their strain on his pre-existing back and right hip disabilities. However, the Veteran, as a lay person, has not been shown to be capable of making medical conclusions, especially as to a complex medical diagnosis and/or opinion regarding whether his pre-existing leg length discrepancy, pelvic tilt, and scoliosis were unmistakable (aggravated (permanently worsened beyond their natural progression) during or because of his active service. Given the Veteran's lack of demonstrated medical expertise, the Board finds that the objective medical evidence more persuasive as to whether the Veteran's preexisting right hip and lumbar spine disabilities were aggravated beyond its normal progression by his active service. Service connection is also not warranted on a presumptive basis, as there is no evidence that the Veteran's degenerative arthritis was manifest to a compensable degree within one year of his separation. The earliest evidence of objective evidence is 1993, nearly three decades after his separation from service. Thus, the preponderance of the competent evidence weighs against a finding that the Veteran's preexisting right hip and lumbar spine disabilities was aggravated beyond its normal progression by his military service and, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claims are denied. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.