Citation Nr: 21076997 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-59 908 DATE: December 28, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDINGS OF FACT For the Veteran's first period of service, from January 1983 to January 1987, a lumbar spine disability did not manifest during service and is not otherwise related to service. For the Veteran's second period of service, from July 2010 to May 2011, the Veteran is presumed sound upon entry; there is clear and unmistakable evidence that a lumbar spine disability preexisted the Veteran's active service; and there is clear and unmistakable evidence that a lumbar spine disability was not aggravated during his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for a lumbar spine disability have not been met. 38 U.S.C. § 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1983 to January 1987 and from July 2010 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in December 2018, August 2020, and August 2021 when it was remanded for further development. It has since been returned for further appellate consideration. The Board notes that in a March 2012 correspondence, VA made a formal finding of unavailability of the Veteran's complete service treatment records (STRs). There is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been, or in actuality were, destroyed was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005) ("When VA is unable to locate a claimant's records, it should advise him to submit alternative forms of evidence to support his claim and should assist him in obtaining sufficient evidence from alternative sources"). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2019). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present 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 or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Every veteran shall be taken to have been in sound condition when accepted for service except as to defects, infirmities, or disorders noted at the time of acceptance; or, where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by the Veteran's period of active service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b). When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. To rebut the presumption of soundness, the burden falls on VA to demonstrate with clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). If, however, the government fails to rebut the presumption of soundness, the Veteran's claim is one for service connection rather than service aggravation, and 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 is a more formidable evidentiary burden than the preponderance of the evidence standard. Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an onerous evidentiary standard, requiring that the no-aggravation result be undebatable. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). Entitlement to service connection for a lumbar spine disability As initial matter the Board notes that is claim involves two different periods of active service, January 1983 to January 1987 and July 2010 to May 2011. The Veteran seeks entitlement to service connection for a lumbar spine condition related to service. See April 2013 Notice of Disagreement. Further, the Veteran contends his back disability was aggravated by service. See December 2009 claim. Specifically, he asserts that he had surgery for his spine in 1991 and that his back condition was aggravated by his subsequent period of military service. Id. Active Service from January 1983 to January 1987 First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The March 2012 VA examination documents a diagnosis of DJD and DDD of the lumbar spine. Accordingly, the first element of service connection is met. Second, the Board finds that there were in-service symptoms. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran's original service treatment records (STRs) for the period of service from January 1983 to January 1987 were found to be unavailable for review. The Veteran reported that he hurt his back in 1984 or 1985 after lifting heavy containers of milk on active duty. See March 2012 VA examination. He described that the pain was severe, and he was seen and treated with medication. Further, he reported his back condition resolved after treatment. The Board finds that the Veteran is competent to report the symptoms that he experienced during his service. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge). Accordingly, the second element of service connection is met. The third element of service connection is not met as the more probative evidence of record establishes that the currently diagnosed back disability is not etiologically related to the Veteran's first period of service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran was afforded a VA examination in March 2012. The examiner diagnosed DJD and DDD of the lumbar spine; however, the examiner did not provide a nexus opinion between the Veteran's diagnosis and service. The examination report is accordingly incomplete. Thus, the Board accords this opinion no probative value. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The Veteran was afforded a VA examination in September 2019. The examiner opined that the Veteran's back condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner reasoned that there is no evidence to support a back condition resulting from the Veteran's first period of active duty in the Navy from 1983 to 1987. The Veteran was afforded a VA examination in November 2020. The examiner opined that that there was "no documented medical evidence of a back injury sustained during his active-duty dates from 1983 to 1987 while lifting heavy milk containers, nor is there documentation of a back injury sustained during active-duty service as evidenced by his 1987 separation exam." An examiner provided a medical opinion in September 2021. The examiner opined that it is less likely as not that the Veteran's current back disability was incurred in or caused by his first period of active service. The examiner reasoned, without basing the opinion on the lack of documented in-service treatment records, the Veteran reports lifting heavy containers of milk caused his back pain. The examiner concluded "at best, the gesture of lifting heavy milk cartons may have resulted in a pulled muscle but less likely resulting in a herniated disc requiring a discectomy." The Board finds that this opinion is probative, as it was based upon review of the evidence and supported by explanation. The Board assigns significant probative value to the September 2021 opinion as the examiner demonstrated a detail understanding of the Veteran's medical history and medical records, and the opinion is supported by an explanation. Also, the examiner considered the Veteran's lay statements of record. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. at 124 (2007). Accordingly, service connection for a back disability is not warranted on a direct basis for the Veteran's first period of active duty from January 1983 to January 1987. Next, in this case there is a question as to whether the Veteran's low back disability preexisted his second period of active service. Active Service from July 2010 to May 2011 The evidence of record shows that a back disability was not noted on the Veteran's November 1999 Naval Reserves entrance examination. While the 1999 entrance examination documents the Veteran's back surgery with a "good result," it does not note any current back pain or any other back-related problems. Additionally, prior to the Veteran's July 2010 deployment, a June 2010 STR notes the Veteran's 1991 back surgery with no further problems and no other back problems were documented. The Board notes that at a March 2012 VA examination, the Veteran stated that he first hurt his back in 1984 or 1985 after lifting heavy containers of milk. He reported his back condition resolved after treatment. However, the Veteran's original service treatment records for the period of service from January 1983 to January 1987 were found to be unavailable for review. In February 2021, the Veteran submitted a statement from his former spouse indicating that the Veteran injured his back while performing duties on the USS Shreveport during his first period of active duty. The Veteran's former spouse stated that the Veteran "has had ongoing back pain" since that time. Consistent with the Veteran's statement, the evidence, both lay and medical, is sufficient to rebut the presumption of soundness by clear and unmistakable evidence that a back disability existed prior to his second period of active service. As the Veteran's back disability has been shown by clear and unmistakable evidence to preexist service, consideration must now be given to whether clear and unmistakable evidence exists to show that his back disability was not aggravated during service, to fully rebut the presumption of soundness. Wagner, 370 F.3d at 1096. 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). The Veteran was afforded a VA examination in September 2019. The examiner opined that there is clear and unmistakable evidence that the Veteran's lumbar spine condition existed prior to his second period of active service (July 2010 to May 2011). The examiner explained there is evidence of a pre-existing back condition occurring 5 years after separation and 7 years prior to re-enlistment into the Naval Reserves. Further the examiner explained, this pre-existing condition is evidenced by his clearance and approval for entry into the reserves despite his "pre-existing back surgery." The examiner also noted that in 2004, the Veteran had MRI findings of DDD/DJD. The Veteran was treated for chronic back pain during inactive periods of service. The examiner opined that there is no evidence to support the aggravation of his pre-existing back condition beyond its normal progression during his last set of active-duty dates from July 2010 to May 2011. There is no evidence of a separation examination from the Naval Reserves. In April 2011, lower back pain complaints were noted. After that, there is no documented medical evidence of any further surgical procedures or invasive treatments for the Veteran's back since 1992. The examiner concluded that as such, the Veteran's lumbar spine condition was not aggravated or permanently worsened by his second period of active service. The Veteran was afforded a VA examination in November 2020. The examiner opined that the Veteran clearly and unmistakably had a preexisting back disability, as evidenced on his September 1999 enlistment examination into the Naval Reserves. Further, the examiner opined that the Veteran's back disability was not aggravated beyond its natural progression by his second period of service partially because there was "no documented evidence of any further surgical procedures or invasive treatments for his back since 1992- a time frame of 27 years." Most recently, an examiner provided a medical opinion in September 2021. The examiner opined that there is clear and unmistakable evidence that the Veteran had a lumbar spine disability prior to his second period of service from July 2010 to May 2011. The examiner found that review of the Veteran's Naval Reserves enlistment exam shows a pre-existing stable condition of S/P Discectomy L5, S1 in 1991. Also, the examiner opined that there clear and unmistakable evidence that the back disability was not aggravated by his second period of service. In part, the examiner based the opinion on the Veteran's ex-wife report of the Veteran's increased pain during service. The examiner explained "engaging in weight bearing exercises, bumps on the road while riding in a vehicle and carrying heavy gear would cause an increase in pain." The examiner concluded however that continued back pain does not support an aggravation beyond natural progression. The Board finds that this opinion is probative, as it was based upon review of the evidence, consideration of the lay statements, and supported by explanation. See Nieves-Rodriguez, 22 Vet. App. at 302-04. Accordingly, service connection for a back disability is not warranted as the evidence shows that the disability clearly and unmistakably pre-existed the Veteran's second period of service and was not aggravated thereby. In sum, the Board concludes that service connection for a back disability is not warranted. The Board has not overlooked the Veteran's statements about his back disability. While the Veteran believed that his back disability is related to service, he has not shown the specialized training sufficient to render such an opinion. In this regard, the etiology of a back disability is a matter that requires medical training and expertise to determine. Consequently, the Veteran's opinion as to the etiology of his back disability is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Thus, the Board finds the opinion of the September 2021 VA examiner to be significantly more probative than the Veteran's lay assertions. Moreover, there is no medical opinion to the contrary. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. As the preponderance of the evidence is against the claim, the doctrine is not for application. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.