Citation Nr: 21075603 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-44 024 DATE: December 21, 2021 ORDER Entitlement to service connection for a back disability, to include thoracic spine scoliosis and thoracolumbar spine arthritis, is granted. FINDINGS OF FACT 1. Although the Veteran's thoracic spine scoliosis is likely a congenital disease, the evidence of record fails to establish the condition clearly and unmistakably pre-existed his first period of active service from July 2002 to July 2006, and the evidence of record otherwise establishes a nexus between the condition, first noted on an in-service x-ray in September 2002, and the current disability confirmed during the appeal period. 2. A continuity of symptomatology links the thoracolumbar spine arthritis confirmed on x-ray in August 2013 to a condition noted during the Veteran's second period of active service from February 2010 to December 2010. CONCLUSION OF LAW The criteria for service connection for a back disability, to include thoracic spine scoliosis and thoracolumbar spine arthritis, have been met. 38 U.S.C. §§ 1110, 1111, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Marine Corps from July 2002 to July 2006 and in the United States Army from February 2010 to December 2010. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. 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 current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b);38 C.F.R. § 3.102. Here, there is evidence that suggests the Veteran may have had thoracic spine scoliosis prior to his first period of active service from July 2002 to July 2006. A September 2002 chest x-ray revealed an incidental finding of thoracic spine scoliosis approximately two months after the Veteran's initial entry into active service. Several VA examiners have explained that the Veteran's thoracic spine scoliosis is likely a congenital condition that went undiscovered until the in-service x-rays in September 2002. While the Board acknowledges congenital and developmental defects are not "diseases or injuries" in the meaning of applicable legislation for disability compensation purposes, service connection may be granted for congenital diseases. See Cousin v. Wilkie, 905 F.3d 1316, 1320-21 (Fed. Cir. 2018). To the extent the Veteran's thoracic spine scoliosis could be considered a congenital condition, the evidence of record establishes it is a congenital disease, i.e., capable of deteriorating, rather than a congenital defect, i.e., more or less stationary in nature; therefore, service connection may be granted for thoracic spine scoliosis. Id. The Board notes a veteran is considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). In this case, the Agency of Original Jurisdiction has made a formal finding that the Veteran's service treatment records for his first period of active service from July 2002 to July 2006 are unavailable. The United States Court of Appeals for Veteran Claims has held a veteran is entitled to the presumption of soundness under circumstances where his service treatment records are missing and presumed destroyed. See Quirin v. Shinseki, 22 Vet. App. 390 (2009); Doran v. Brown, 6 Vet. App. 283 (1994). As a result, the Board finds the presumption of soundness applies in this case. The presumption of soundness may be rebutted by clear and unmistakable evidence showing that a disability pre-existed service and that the disability was not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Thus, when the presumption of soundness applies, the claimant is not required to show that a pre-existing injury or disease increased in severity during service. Id. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. Id. VA may show a lack of aggravation if clear and unmistakable evidence establishes that there was no increase in disability during service, or that any increase in disability was due to the natural progress of the pre-existing condition. Id. If this burden is met, then the claimant is not entitled to service connection benefits. Id. On the other hand, if VA fails to show a lack of aggravation by clear and unmistakable evidence, then the presumption has not been rebutted. Id. at 1094 (holding that Congress intended to "convert aggravation claims to ones for service connection when the government fails to overcome the presumption of soundness"). In that case, the claim will be considered as a normal claim for service connection and, if granted, no deduction for the degree of disability existing at the time of entrance will be made. Id. at 1096 (citing 38 C.F.R. § 3.322). In other words, the claim may not be denied, nor benefits deducted, on the basis of a finding that the disability in question pre-existed active service, if VA does not also meet its evidentiary burden of showing that the disability was not aggravated during service. The clear-and-unmistakable-evidence standard is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that the clear-and-unmistakable-evidence standard is more demanding than the clear-and-convincing-evidence standard, which in turn is higher than the preponderance-of-the-evidence standard). It is an "onerous" and "very demanding" evidentiary standard, requiring that the evidence be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). Although the Board acknowledges the Veteran's thoracic spine scoliosis is likely a congenital disease, the evidence of record fails to establish the condition clearly and unmistakably pre-existed his first period of active service from July 2002 to July 2006. In this regard, the Board fully acknowledges the various opinions of record, which explain the Veteran's thoracic spine scoliosis is likely congenital in nature and went unnoticed until his September 2002 in-service x-rays; however, the Veteran's initial VA examiner in June 2011 clearly noted the condition first manifest "during" the Veteran's initial period of active service when provided the opportunity to assess whether the condition manifest "before", "during", or "after" service in the disability benefits questionnaire completed in conjunction with the examination. As a result, the Board cannot conclude that it is "undebatable" that condition pre-existed the Veteran's initial period of active service; therefore, the presumption of soundness has not been rebutted because the "onerous" and "very demanding" clear-and-unmistakable-evidence standard has not been met in this case. The evidence of record otherwise establishes a nexus between the thoracic spine scoliosis noted on x-ray in September 2002 and the current disability noted throughout the appeal period. Thus, service connection for thoracic spine scoliosis is warranted. The Board acknowledges the Veteran's initial January 2011 service connection claim included explicit claims for both "upper" and "lower" back disabilities. August 2013 x-rays conducted in conjunction with a September 2013 examination confirm the Veteran has thoracolumbar spine arthritis. The Board notes arthritis constitutes a chronic disease within the meaning of 38 C.F.R. § 3.309(a). Chronic diseases listed in 38 C.F.R. § 3.309(a) may be service connected on a presumptive basis if manifested to a compensable degree in a specified period of time post-service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. That period is usually one year. 38 C.F.R. § 3.307 (a)(3). Although the Veteran's arthritis was confirmed more than one year after his separation from his second period of active service, 38 C.F.R. § 3.303(b) provides an alternative method of establishing nexus for chronic diseases through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). A continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303 (b). (Continued on the next page) In this case, the Board finds a lower back condition was noted during the Veteran's second period of active service from February 2010 to December 2010. The Veteran sought treatment for lower back pain and had an extensive assessment in November 2010 in which his back problems were noted in great detail. The Veteran continuously sought treatment for lower back pain following his separation from active service in December 2010 until thoracolumbar spine arthritis was confirmed on x-ray during an examination provided in conjunction with VA's duty to assist in the development of his January 2011 service connection claim. Accordingly, the Board finds service connection for thoracolumbar spine arthritis is also warranted based on a continuity of symptomatology as contemplated by 38 C.F.R. § 3.303(b). In sum, the Board finds service connection is warranted for a back disability, to include thoracic spine scoliosis and thoracolumbar spine arthritis, resulting in a full grant of the benefit sought on appeal. L. S. Kyle Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.