Citation Nr: 21005612 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 16-53 635A TE: February 2, 2021 ORDER Service connection for a pre-existing spine injury is denied. FINDINGS OF FACT 1. The Veteran clearly and unmistakably had a pre-existing spine injury. 2. The pre-existing spine clearly and unmistakably was not aggravated beyond its natural progression by service. CONCLUSIONS OF LAW 1. The evidence is clear and unmistakable that the Veteran had a preexisting spine injury. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. 2. The evidence is clear and unmistakable that a preexisting spine injury was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to May 1967. The Veteran died in April 2019 during the pendency of this appeal. The Appellant, the surviving spouse of the deceased Veteran who otherwise qualifies as an accrued benefits claimant, has been substituted as the claimant to continue the pending appeal to completion. See Marriage Certification; Death Certificate. This matter is on appeal from a July 2011rating decision issued by the Regional Office (RO). This matter was previously before the Board in March 2019. The Board denied the appeal to reopen service connection for the preexisting spinal cord injury, finding that new and material evidence had not been received. The substituted appellant appealed the March 2019 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC). An April 2020 Order by CAVC adopts a Joint Motion for Remand (JMR) filed by the parties. Relevant to the instant decision, in the JMPR, the parties agreed that the Board did not consider October 2009 private treatment records submitted to the claims file in December 2009, which was agreed by the parties to include an October 2009 private nexus opinion that, as agreed upon by the parties, relates to the element of whether the preexisting spinal cord injury increased in severity during service. This matter came before the Board again in September 2020. The Board remanded the issue in order to obtain a VA examination addendum opinion. The VA examination addendum opinion was rendered in December 2020. Legal Authority for Service Connection Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A veteran will be 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 evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Where such defects, infirmities or disorders are not noted when examined, accepted, and enrolled for service, pursuant to 38 U.S.C. § 1111 and 38 C.F.R. § 3.304, in order to rebut the presumption of soundness on entry into service, VA must show by 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. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-03. Service Connection for a Spine Disorder The Appellant contends generally that the Veteran’s preexisting spinal cord injury was aggravated by his three months of active service from February 1967 to May 1967 and resulted in his discharge from service. During the pendency of the appeal, the Veteran submitted October 2009 private treatment records and purported opinion to suggest aggravation by service. After a review of the evidence, both lay and medical, the Board finds that the Veteran clearly and unmistakably had a pre-existing spine injury. According to January 1964 private treatment records, which were documented prior to service entrance, a medical professional reported that the Veteran was treated for a head and spine injury in November 1962. The Board finds that the pre-existing spine injury was clearly and unmistakably not aggravated beyond its natural progression by service. A December 2020 VA examination addendum opinion is that the pre-existing spine injury was clearly and unmistakably not aggravated beyond its natural progression by service. An October 2009 private examination opinion, which was based on an inaccurate factual premise, is of no probative value on the question of aggravation by service. The private examiner in October 2009 accurately noted that the Veteran experienced a (pre-service) football injury at the age of 18 that left him partially paralyzed. The private examiner reported that the Veteran had some recovery since the injury and, by the Veteran’s report, he “was drafted into military service and during this time in service reinjured his spine that was already susceptible to injury.” There is no basis in thee record for the assumption of reported history of reinjury to the spine during service, and the private examiner conceded that he did not have service treatment records documenting the nature of the in-service reinjury. This factual assumption is materially inaccurate, as it is inconsistent with the lay and medical evidence of record. The Board does not discount the history because it was presented by the Veteran; rather, the Board finds the history of in-service injury inconsistent with, and outweighed by, other lay and medical evidence of record that show no in-service re-injury of the spine. The Board finds that the October 2009 private treatment opinion is of no probative value as it was based on an inaccurate factual premise of in-service injury. Upon review of the service treatment records, which span the Veteran’s three months of service, there are no complaints of or treatment for symptoms related to the spine. According to April 1967 Medical Board proceedings, the Veteran was found medically unfit for service due to residual left hemiparesis and spastic paraparesis secondary to the pre-service head injury in 1962. As the October 2009 private opinion is based on the inaccurate factual assumption of an in-service spine injury, the private opinion is based on an inaccurate factual premise, so is of no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). According to the December 2020 VA examination addendum opinion, the VA examiner opined that the Veteran’s preexisting spine injury (which clearly and unmistakably existed prior to service), was clearly and unmistakably not aggravated beyond its natural progression by service. The VA examiner reasoned that service treatment records were silent for any back or spine injuries. The VA examiner also reasoned that the Veteran did not report any spinal aggravation symptoms while he was in service because service treatment records were silent for any back or spine complaints related or unrelated to the pre-existing spine injury during the Veteran’s short basic training period. The VA examiner noted that the Veteran was inducted and after four weeks of basic training was unable to do pushups but was able to run. The Veteran was then evaluated by the neurology department and was referred to the medical Board. The medical Board found the Veteran medically unfit and recommended separation from service secondary to residual left hemiparesis and spastic paraparesis related to the 1962 head injury. Based on the foregoing, the evidence is clear and unmistakable both that the pre-existing spine injury preexisted service and was not aggravated beyond its natural progression by service. For these reasons, the appeal for service connection must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.