Citation Nr: 21007375 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-00 618A DATE: February 9, 2021 ORDER Service connection for lumbar spine disability, including degenerative disc disease (DDD), degenerative joint disease (DJD), spondylosis, and spina bifida is granted. Service connection for left lower extremity (LLE) sciatica is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability is related to service. 2. The evidence is at least in equipoise as to whether the Veteran’s pre-existing spina bifida was aggravated during service. 3. The preponderance of the evidence shows the Veteran’s LLE sciatica is at least as likely as not secondary to his lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for service connection for lumbar spine disability, including DDD, DJD, spondylosis, and spina bifida are met. 38 U.S.C. §§ 1110, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for service connection for LLE sciatica are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served active duty from December 1984 to July 1991. Service Connection Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish service connection for a present disability the claimant must show: (1) the existence of a present disability, (2) an in-service incurrence or aggravation of a disease or injury, and (3) a causal relationship or “nexus” between the present disability and the in-service injury or disease. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff’d 749 F.3d 1370 (Fed. Cir. 2014). The Veteran’s entrance examination is absent of any notations of back disability or back pain. Therefore, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). When the presumption of soundness attaches, there must be clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). 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). 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 pre-existing 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). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 1. Service connection for lumbar spine disability, including DDD, DJD, spondylosis, and spina bifida is granted. The Veteran contends low back disability related to service. Specifically, he contends his DDD, DJD, and spondylosis began during service and his pre-existing spina bifida worsened during service. Service treatment records (STR) show no notation of back disability at entrance to service. A September 1990 visit reported low back pain with an impression of chronic back pain. A later September 1990 visit reported low back pain with an impression of musculoskeletal low back pain. The Veteran contends he experienced chronic back pain during service, but did not seek more treatment during service because there was a culture that discouraged saying you were hurt or seeking treatment. See April 2008 statement and January 2019 statement. The Veteran contends he continued to have low back after service and treated himself with over the counter medications until seeking treatment. Id. A statement from the Veteran’s brother reported he lived with the Veteran following service. He stated the Veteran reported back pain during service and he observed the Veteran’s back pain following separation from service. See April 2020 statement. Post-service, the first treatment records in the claims file noting low back disability were in May 2007. The Board recognizes the Veteran has current lumbar spine disability, including DDD, DJD, and spondylosis. The Board finds the evidence is at least in equipoise as to whether the Veteran’s lumbar spine disability is related to service. An August 2016 private treatment opinion stated the Veteran has degenerative changes at multiple spinal levels. The clinician stated these changes can sometimes be due to genetic predisposition, but are also affected by environmental factors. The clinician opined the Veteran’s active duty military service was as likely as not contributory to the accelerated degenerative condition of the Veteran’s lumbar spine. An August 2020 VA medical opinion found the Veteran’s low back disability was less likely than not incurred in or caused by in-service injury, event, or illness. The clinician noted the Veteran complained of back pain during service, but was not treated again for back pain until 2007. The clinician stated this reveals the back injury during service was acute in nature and there was not chronicity of care. A June 2020 private medical opinion stated the Veteran was under his treatment since 2016. He stated the Veteran’s chronic low back pain is likely related to his lower back strain and injuries incurred while in service. The Board gives probative weight to the above medical opinions. The opinions are based on an accurate medical history and provided clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The private treatment opinions are supported by regular treatment records. The opinion is consistent with the Veteran reporting back pain beginning during service and continuing since separation from service. The opinion is consistent with lay statements from the Veteran’s brother stating he lived with the Veteran after service and the Veteran reported back pain since separation from service. As the evidence is at least in equipoise, service connection for lumbar spine disability, to include DDD, DJD, and spondylosis is warranted. The Board recognizes the Veteran has spina bifida. As noted in the service connection introduction, because the presumption of soundness attaches, there must be clear and unmistakable evidence that spina bifida both pre-existed service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Regarding the first prong, the Veteran contends and the probative evidence of record shows clear and unmistakable evidence the Veteran’s spina bifida pre-existed service. Regarding the second prong, the competent and credible evidence of record is at least in equipoise as to whether the Veteran’s spina bifida was aggravated by service. An August 2016 private treatment opinion stated it is likely that his back pain related to spina bifida got worse with military duties due to the increased strain on his back. A June 2020 private medical opinion stated Veteran’s chronic low back pain and spina bifida were likely related to his lower back strain and injuries incurred while in service. A December 2020 VA medical opinion stated the Veteran’s spina bifida was clearly and unmistakably not aggravated beyond its natural progression by service. The clinician noted there was a lack of sufficient objective medical evidence confirming aggravation of the Veteran's pre-existing spina bifida beyond the natural progression. The Board does not find clear and unmistakable evidence that the Veteran’s spina bifida was not aggravated by military service. The Veteran provided probative medical opinions from his treating physician that his spina bifida was aggravated during service. The Veteran reported he did not experience low back pain prior to service, began experiencing low back pain during service, and low back pain continued after service. The December 2020 VA medical opinion found there was a lack of objective medical evidence confirming aggravation of his spina bifida. However, the Court has found the government’s burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either pre-existence 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, 25 Vet. App. 231, 233. Here, as discussed above, the Veteran has provided probative evidence of a nexus between his aggravated spina bifida and service activities. As such, service connection for spina bifida is warranted. In conclusion, service connection for lumbar spine disability, including DDD, DJD, spondylosis, and spina bifida is granted. 2. Service connection for LLE sciatica is granted. The Veteran contends LLE sciatica secondary to his lumbar spine disability. The preponderance of the evidence shows the Veteran’s LLE sciatica is caused by his lumbar disability. See August 2020 VA examination and medical opinion. As service connection for lumbar disability has been granted herein, service connection for LLE sciatica is warranted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Winkler, 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.