Citation Nr: 21076574
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 16-12 983
DATE: December 27, 2021

ORDER

The claim of entitlement to service connection for a lumbar spine disorder is granted.

FINDINGS OF FACT

1. A lumbar spine disorder was not noted upon entry into active duty service.

2. The evidence is not clear and unmistakable that the Veteran's lumbar spine disorder was not aggravated during active duty service.

3. Service treatment records show that the Veteran injured his lumbar spine during service, there is competent medical evidence of a current diagnosis of degenerative joint disease of the lumbar spine, and the Veteran has provided competent evidence of a continuity of symptomatology of low back symptoms since his military service

CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. § 3.102, 3.303, 3.304, 3.306, 3.307, 3.309. 

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran had honorable active duty service with the United States Army from May 1970 to January 1972.

In June 2021, the Board remanded the claim for additional development. 

Entitlement to service connection for a lumbar spine disorder. 

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 

Service connection may be established for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303 (d). 

To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a).

Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."

When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303 (b). Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a chronic condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303 (b); see also Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed.Cir.2013) (holding that only conditions listed as chronic diseases in 38 C.F.R. § 3.309 (a) may be considered for service connection under 38 C.F.R. § 3.303 (b)). 

Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue"). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007). See also Davidson v. Shinseki, 581 F.3d at 1313 ; Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (providing that although a veteran is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, a veteran is not competent to provide evidence as to more complex medical questions). Furthermore, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. West, 12 Vet. App. 460, 465 (1999).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Rebutting the presumption of soundness requires a two-part analysis. VA must demonstrate by clear and unmistakable evidence that a disorder preexisted military service and must demonstrate by clear and unmistakable evidence that a preexisting disorder was not aggravated by military service. 38 C.F.R. § 3.304 (b); VAOPGCPREC 3-03 (July 16, 2003), 69 Fed. Reg. 25178 (May 5, 2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). 

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).

A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See Cotant v. Principi, 17 Vet. App. 116, 132 (2003). If VA's burden is met, then the veteran is not entitled to service-connected benefits. However, if the presumption of soundness is not rebutted under 38 U.S.C. § 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096.

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) (quoting Yanerson v. West, 12 Vet. App. 254, 258-59 (1999)). The clear-and-unmistakable-evidence standard is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)); see also Yanerson, 12 Vet. App. at 263 (Nebeker, C.J., concurring in part and dissenting in part) ("[O]nly an inference that is iron clad and copper riveted can be 'unmistakable.'").

The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

On the September 1969 report of medical history, the Veteran stated that he had a history of back trouble. In the physician's summary portion of the document, it was explained that the Veteran had intermittent back pain for five years. There was no diagnosis of a back disorder. The September 1969 pre-induction examination revealed that the spine was clinically normal. Accordingly, the Veteran is presumed sound as to the lumbar spine at service entrance. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Because the presumption of soundness attaches with respect to the lumbar spine, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id.

The Board finds that the presumption of soundness has not been rebutted. The lay and medical evidence clearly and unmistakably demonstrates that the Veteran's lumbar spine disorder pre-existed service. On the September 1969 report of medical history, the Veteran stated that he had a history of back trouble. In the physician's summary portion of the document, it was explained that the Veteran had intermittent back pain for five years. The November 2012 VA examination report documented the Veteran's report that he injured his low back prior to service and aggravated his back during service. In February 2016, the Veteran denied having sustained a back injury prior to service but did not deny that he had back pain prior to service. 

However, the Board also finds that the lay and medical evidence of record illustrates that there is not clear and unmistakable evidence that the lumbar spine disorder was not aggravated by military service. The November 2012 VA examiner opined that it was less likely than not that the Veteran's lumbar spine disorder was aggravated by or a result of his in-service treatment for chronic low back strain. The rationale was that there was no objective evidence of aggravation over and beyond its expected natural progression. In February 2016, the Veteran detailed his in-service injury in which his ring got caught in the bolt of a moving truck and he was dragged a few feet before he fell to the ground. He reported immediate back pain and severe back pain since. In October 2019, the Veteran explained that following his back injury he wasn't permitted to use certain equipment because of his back injury. During the January 2020 VA examination, the Veteran stated that he twisted his back during the in-service fall and that his low back pain worsened over time. The VA examiner stated that the Veteran's acute in-service injury may or may not have caused increased damage. The examiner stated that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing back pain. The October 2021 reviewing examiner found that the Veteran had only a natural progression of his low back pain on and off during his active duty service. The examiner stated that the Veteran experienced recurrent flares during active duty and was able to continue his military duties. 

Accordingly, the presumption of soundness has not been rebutted. The November 2012 VA examiner did not use the correct legal standard and based the opinion on the lack of objective evidence of in-service aggravation. The January 2020 VA examiner used the correct legal standard and acknowledged that temporary aggravation was plausible. However, the examiner found that there was no objective evidence of permanent aggravation. There was no consideration of the Veteran's lay statements of worsening back pain during service. Similarly, the October 2021 VA examiner found that the Veteran's lumbar spine disorder naturally progressed during active duty service. Notably, the examiner did not determine whether the Veteran's lumbar spine disorder clearly and unmistakably was not aggravated by service. Therefore, the presumption of soundness has not been rebutted. The Veteran's claim must be considered a normal claim for service connection without consideration of a pre-existing lumbar spine disorder at the time of entrance into active service. 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 v. Shinseki, 25 Vet. App. 231, 233 (2012).

Following a review of the medical records, the Board finds that service connection for a lumbar spine disorder is warranted. Significantly, the service treatment records contain multiple entries for the treatment of low back symptoms. In December 1970, he complained of left-sided back pain. It was noted that he had a history of a recent back injury during basic training. The day prior, he jumped from a truck and hurt his back. In July 1971, he continued to complain of back pain and stated that the medication did not provide much relief. He was given a profile for driving and lifting. Post-service VA treatment records include an April 2005 statement that he experienced back pain for years. A January 2008 VA treatment record noted that he had low back pain for 35 years. A January 2011 VA treatment record documented his report of low back pain since a remote injury in basic training. In February 2016, he reported severe low back pain since the in-service injury. The Board finds that his statements of symptoms since service are both competent and credible. Notably, the Veteran's statements made to treatment providers were made more than a year prior to filing his August 2012 claim for service connection. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made for the purposes of medical treatment may be afforded greater probative value because there is a strong motive to tell the truth in order to receive proper care).

The Board acknowledges the October 2021 VA examiner's opinion that the Veteran's currently diagnosed lumbar spine degenerative joint disease was due to aging, gender, and his smoking history. However, the VA medical opinion is inadequate because the examiner did not consider the Veteran's credible lay statements of back pain since service. See Miller v. Wilkie, 32 Vet. App. 249, 258 (2020) (holding that "The examiner must address the veteran's lay statements to provide the Board with an adequate medical opinion.").  

With resolution of all reasonable doubt in the Veteran's favor, it is concluded that the evidence supports service connection for a lumbar spine disorder. 38 U.S.C. § 5107 (b).

 

 

B. MULLINS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. N. McKinley, 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.