Citation Nr: 21005854 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 13-31 165 DATE: February 2, 2021 ORDER Entitlement to service connection for a low back disability is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his pre-existing low back condition was aggravated beyond its natural progression by active duty service. CONCLUSION OF LAW The criteria for service connection for low back disability have been met. 38 U.S.C. §§ 1110, 1153, 5107; 38 C.F.R. §§ 3.102 , 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2005 to April 2006, from November 2006 to December 2007, and from March 9, 2008 to April 2, 2008 with additional service in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Board remanded the claim to request the Veteran’s complete service treatment records and service personnel records from his National Guard service and obtain a new VA examination and opinion. In June 2020, the Board granted a 90-day extension for submission of additional evidence and argument. Evidence discussed below was timely received. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). A preexisting injury or disease will be considered to have been aggravated by active military service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153(a). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent an increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C. § 1153(b). Entitlement to service connection for low back disability. The Veteran contends that his low back disability is related to service. Specifically, he contends that his pre-existing December 2007 low back injury (fractured vertebrae) was aggravated by his service. See February 2015 Supplement to Substantive Appeal. February 2008 letter from a private physician states that the Veteran’s transverse process fractures may take up to 6 to 8 months to heal. February 29, 2008 military personnel record shows that the Veteran was ordered to active duty service from March 9, 2008 to April 2, 2008. March 2008 service treatment record notes that he fractured his back four weeks prior and still has back pain. In a September 2008 letter from the Veteran, he reported serious back problems since release from active duty in March 2008. There is evidence for and against the claim, as discussed below. Resolving reasonable doubt in the Veteran’s favor, the Board concludes that his pre-existing back disability was aggravated beyond its normal progression by his service. December 2019 VA examination showed diagnoses of lumbago and orthopedic history of vertebral fracture. The evidence against the claim of aggravation during service includes March 2020 VA examination. The VA examiner opined that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner stated that records note the Veteran’s service was from September 2005 to April 2006 and November 2006 to December 2007 with DD 214 noting last period of active duty ended December 19, 2007. The examiner stated that the Veteran’s back injury is noted to have occurred on December 31, 2007. With no documented periods of active duty after the injury, the examiner reasoned, there is no aggravation by service and a nexus is not established. The evidence in favor of the claim includes a June 2020 private medical opinion. The physician stated that the expected time to resolution of the acute traumatic injuries is generally reported to be 8 weeks to a few months in the medical literature. The physician further stated that the evidence shows that the Veteran was not recovered from that injury at the time he was ordered to active duty. The physician stated that the baseline before aggravation would be predicted to be full recovery and thus all subsequent persistent symptoms represent the “aggravation” caused by military service. Based on the above, the physician opined that the Veteran’s back condition that pre-existed his active duty military service was at least as likely as not aggravated beyond the expected natural progression by the physical exertions of his active duty military service that commenced before he had fully recovered from that injury. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s pre-existing low back disability was aggravated by his service. The March 2020 VA examiner states that there is no active duty service following the December 31, 2007 injury. However, military personnel records verify active duty service from March to April 2008. The private opinion is based accurate dates of active duty service and date of injury. Additionally, the conclusion is supported by the medical history of aggravation based on continued reports of back pain, which is explained in a detailed rationale. Therefore, the private opinion is entitled to significant probative weight.   As there is at least an approximate balance of positive and negative evidence regarding aggravation of the pre-existing back disability, the benefit of the doubt is given to the Veteran. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for a low back disability is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Wilson, 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.