Citation Nr: 21074847 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 09-20 660 DATE: December 16, 2021 ORDER Entitlement to service connection for a neck disability is granted. REMANDED Entitlement to service connection for back disability, to include on a secondary basis, is remanded. FINDINGS OF FACT 1. The competent and credible evidence shows that the Veteran's neck disability clearly and unmistakably pre-existed his service. 2. There is no clear and unmistakable evidence that the neck disability was not aggravated by service. 3. The Veteran's neck disability is related to his period of active service. CONCLUSION OF LAW The criteria for service connection for neck disability have been satisfied. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1980 to January 1983, to include additional service in the Army National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, the Board remanded these matters to the Agency of Original Jurisdiction (AOJ) in December 2010 for development. In April 2013, the Board denied these claims, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2014, the Court granted a Joint Motion for Partial Remand (JMR) in which the parties agreed to vacate the April 2013 decision and remand the matters to the Board. The Board remanded the claims for development in July 2014. In December 2015, the Board denied these claims, and the Veteran again appealed to the Court. In a January 2018 Memorandum Decision, the Court vacated the December 2015 decision and remanded the claims to the Board for further development. Thereafter, in August 2018 and July 2021, the Board remanded the matters to the AOJ for further development in compliance with the January 2018 Court order. Most recently, as part of the July 2021 remand, the Board instructed the AOJ to obtain any outstanding treatment records and to afford the Veteran a VA examination. The Board finds that there was substantial compliance with the remand directives for the issue of service connection for neck disability as treatment records were obtained and an August 2021 VA medical opinion was provided. See Stegall v. West, 11 Vet. App. 268 (1998). With regards to the issue of service connection for back disability, this issue will be addressed in the remand portion of this decision. 1. Service Connection for Neck Disability The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). In this case, there is a question as to whether the Veteran's neck disability preexisted his military service. The Veteran's October 1979 entrance examination is absent of any notations of defects, infirmities, or disorders. Therefore, with respect to a neck disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). 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 most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's neck disability preexisted service. During an April 1980 service treatment, it was noted that the Veteran had neck pain which had been happening on and off for 1 year. The Veteran entered service in January 1980. In an August 2021 VA medical opinion, the examiner opined that the Veteran's neck condition was a pre-existing condition which was also confirmed by the Veteran during the examination. Based on this evidence, the Board finds that there is clear and unmistakable evidence that the Veteran's neck disability was a preexisting condition that was incurred prior to entering service. Accordingly, the first prong of rebutting the presumption of soundness when he entered service is satisfied. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "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. Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). 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 has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). 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. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. As explained below, the Board finds that the presumption of soundness has not been rebutted, and the evidence supports a finding that his neck disability is related to service. The most competent and credible evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service. Here, in an August 2021 VA medical opinion, the examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service event, injury, or illness. In making this opinion, the examiner explained that the Veteran's service record showed that the preexisting neck pain (cervical strain) condition was aggravated during his time in service. The Board finds this opinion highly probative as it was made by a medical professional with consideration of the specific facts in this case and after examination of the Veteran. The opinion is also supported by other evidence of record. For example, the Veteran complained of neck pain in February 1980, April 1980, and May 1982. Based on a review of the evidence of record to include the service treatment record, post-service treatment records, August 2021 VA medical opinion, and credible lay statements, the Board resolves all reasonable doubt in the Veteran's favor and concludes that the Veteran's pre-existing neck disability was permanently aggravated by his active duty service. 38 C.F.R. § 3.102. The Board acknowledges that while there were many VA advisory and medical opinions obtained during the course of this appeal that corresponds to the issue of service connection for neck disability, many were found inadequate. For instance, opinions obtained in January 2009, June 2012, and November 2012 were found inadequate by the Court as explained in the February 2014 JMR. The June 2015 VA medical opinion was found inadequate by the Court in its January 2018 Memorandum Decision. Lastly, the opinion obtained by VA in April 2021 was found inadequate by the July 2021 Board decision. For the above reasons, the Board finds that service connection for the Veteran's neck disability is warranted, and the claim is granted. REASONS FOR REMAND 1. Service Connection for Back Disability is Remanded. The Veteran contends that his back disability was caused by his active duty service, to include as due to his service-connected bilateral plantar fasciitis associated with flatfoot, and his service-connected bunion formation. See March 2009 Notice of Disagreement, August 2018 Substantive Brief. In the July 2021 remand, the Board instructed the AOJ to obtain any outstanding treatment records and to afford the Veteran a VA examination with an accompanying VA medical opinion. With regards to an opinion addressing secondary service connection, the Board requested that the examiner address any altered gait caused by his service-connected foot disabilities. In the August 2021 VA medical opinion, the examiner found that the Veteran's back condition was less likely as not related to his service-connected bilateral plantar fasciitis and flat foot condition as the back has an independent/nonadjacent anatomical location and function compared to his bilateral plantar fasciitis. Unfortunately, this opinion is conclusory, and examiner did not provide a clear explanation to support its finding. Additionally, the examiner did not address any altered gait caused by his service-connected foot disability. Thus, the Board finds that there was not substantial compliance with the remand directives for the issue of service connection for a back disability. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, a remand is warranted. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to his back disability claim. All identified outstanding VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. After records development is completed, the claims file should be sent to an appropriate examiner to offer an opinion as to whether current back disability is at least as likely as not (a) caused by, or (b) aggravated by service-connected bilateral plantar fasciitis and service-connected bunion formation, to specifically include as a result of any altered gait caused his service-connected foot disabilities. The need for an examination is left to the discretion of the examiner. A rationale for all opinions offered is requested as adjudicators are precluded from making any medical findings. 3. Readjudicate the claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Mathew 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.