Citation Nr: 21007599 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 09-03 649A DATE: February 10, 2021 ORDER Entitlement to service connection for a low back disorder, diagnosed as spondylosis and sacralization of the lumbar spine, is granted. REMAND Entitlement to service connection for hypertension, to include as secondary to service-connected posttraumatic stress disorder (PTSD), right knee degenerative joint disease, and lumbar spondylosis and sacralization, is remanded. FINDING OF FACT The Veteran’s low back disorder clearly and unmistakably preexisted service, but the evidence does not clearly and unmistakably establish that the disorder did not chronically worsen or increase in severity during service. CONCLUSION OF LAW The criteria for service connection for lumbar spondylosis and sacralization have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1153; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 4.9. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from August 1982 to November 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in April 2015. A transcript of that hearing has been associated with the claims file. In December 2015, the Board reopened the Veteran’s claims and remanded the case for further development. The claims were remanded again in July 2017 and April 2019. The case has since been returned to the Board for appellate review. The Board also notes that the Veteran’s appeal had originally included the issue of entitlement to service connection for residuals of a cold injury affecting the feet. However, during the pendency of the appeal, the agency of original jurisdiction (AOJ) granted service connection for that disability in a December 2018 rating decision. The Veteran has since perfected an appeal for the initial evaluation for that disability; however, the Veteran has requested a hearing, which has not yet been scheduled. Therefore, that issue will be addressed in a separate Board decision following the requested hearing. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For the showing of 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 arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. Every veteran is presumed 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. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). A history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304 (b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Where the presumption of soundness has initially attached, the burden is on VA to rebut the presumption by clear and unmistakable evidence that the disease or injury was both preexisting and not aggravated by service. See, e.g., McKinney v. McDonald, 28 Vet. App. 15, 23 (2016) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004), Horn v. Shinseki, 25 Vet. App. 231, 234 (2012), and Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991)). VA is not precluded from determining that the presumption of soundness is rebutted, even if there is conflicting evidence. See Kent v. Principi, 389 F.3d 1380, 1383 (Fed. Cir. 2004) (“The clear and unmistakable evidentiary standard... does not require the absence of conflicting evidence.”). A determination that a condition had its onset prior to service may be supported by contemporaneous evidence or recorded history in the record which provides a sufficient factual predicate to support a medical opinion (Miller v. West, 11 Vet. App. 345, 348 (1998)), or a later medical opinion based on statements made by a veteran about the preservice history of the condition (Harris v. West, 203 F.3d 1347 (Fed. Cir. 2000)). A preexisting injury or disease is considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the condition. See Wagner, 370 F.3d at 1096 (holding that when no preexisting condition noted on entry to service, government may show lack of aggravation by establishing that any increase was due to the natural progress of the preexisting condition). In addressing the aggravation prong of the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation, rather than the notion that the record contains insufficient evidence of aggravation. See Horn, 25 Vet. App. at 235. The clear and unmistakable evidentiary standard requires that the no-aggravation result be “undebatable.” Cotant v. West, 17 Vet. App. 116, 131 (2003) (citations omitted); Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that “clear and convincing” burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence). Congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303 (c), 4.9. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence, as a whole, shows that the manifestations of the disease in service constituted “aggravation” of the disease within the meaning of applicable VA regulations. A congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is entitled to service connection for a low back disorder. The Veteran’s service treatment records do not document any low back disorder during her October 1981 enlistment examination. She was then noted to have a one-year history of back pain during a February 1983 appointment. Later that month, she was seen again for low back pain at which time the Veteran reported that she had been involved in a motor vehicle accident one year and three months earlier. She stated that the civilian doctor had told her that she had bruised her back. The medical treater provided a diagnosis of vertebral pain secondary to the previous auto accident. The Veteran was seen again in February 1983, and postural and mechanical lower back pain was diagnosed. Post-service medical records indicate that x-rays were obtained in February 1993, which showed no evidence of fracture or degenerative disc disease. However, sacralization was revealed, and comments in the report indicated that that disorder may be a cause of the back pain. Medical records show treatment for back pain over the years; however, those records do not contain statements regarding its etiology. The Veteran was afforded a VA examination in connection with her claim in April 2013 during which the examiner noted the 1982 diagnosis of mechanical back strain. He opined that the Veteran’s back disorder was less likely related to service, as medical records indicated that her back condition pre-dated service. The examiner also opined that the condition clearly and unmistakably existed prior to service and was not clearly and unmistakably not aggravated beyond its natural progression by service. In support of that opinion, the examiner opined that there was no aggravation during service and noted that the April 2013 VA examination revealed a normal spine, except for minor tenderness. Nevertheless, the Board previously found this opinion inadequate in a prior remand, particularly in light of the private medical records showing that the Veteran had been diagnosed with degenerative disc disease and arthritis of the spine, which the examiner did not address or reconcile with his findings. The Veteran was also afforded a VA examination in February 2016 during which she was diagnosed with a lumbar strain with an onset date of 1981. The examiner opined that the Veteran’s low back disorder was less likely than not caused by service because she had reported that her low back pain began shortly after the 1981 motor vehicle accident. In an April 2016 addendum opinion, that same VA examiner noted that the Veteran’s service treatment records did document complaints of back pain during service and showed that the Veteran had complained that her active duty status was exacerbating the pre-existing discomfort. The examiner stated that it was certainly possible that military service had further exacerbated the Veteran’s pre-existing back condition; however, he also opined that it would be nearly impossible to discern, as there was no baseline to use for comparison. Thus, he noted that his opinions had not changed. In October 2017, the Veteran was afforded another VA examination at which time the examiner provided a negative nexus opinion. He found that the motor vehicle accident prior to service had caused the back disorder and opined that nothing in service had aggravated the disorder. During a September 2018 VA medical appointment, a medical provider noted that the Veteran was experiencing hip and back issues secondary to a limb length issue; however, the Board notes that it does not appear that the service-connected right knee was the issue, as it was the left leg that was the shorter limb. VA medical records also show that the Veteran was having back pain in February 2019 due to a compression fracture caused by a fall on ice. The Veteran was provided another VA examination in February 2020. At that time, the VA examiner diagnosed the Veteran with degenerative arthritis of the spine and sacralization of the spine. She noted that the presumption of soundness applied and provided two opinions. In one opinion, the examiner stated that the Veteran’s claimed condition was less likely than not related to service. In doing so, she noted that the medical records were silent as to back issues for 12 years after the 1982 in-service fall. Thus, continuity of care was not demonstrated. She found no evidence that would support a nexus between the current degenerative disorder and service and found no evidence of any complaint or treatment for the congenital malformations of the spine during service. Nevertheless, that same VA examiner provided another opinion, wherein she diagnosed the Veteran with spondylosis and sacralization of the lumbar spine. She stated that the conditions clearly and unmistakably existed prior to service and were clearly and unmistakably aggravated beyond their natural progression by service. In support of that opinion, she noted that the Veteran had been seen for back pain several times during service. She also noted that medical literature supported the fact that an injury to a joint creates a vulnerability to that joint, which can lead to further injury. She further stated that the physical demands of a soldier’s life no doubt can aggravate preexisting injury, as in this case. In addition, the examiner opined that the increase was likely due to a chronic worsening of the underlying pathology and found that the conditions were aggravated beyond their natural progression while in service. The Board notes that the presumption of soundness applies in this case because the Veteran’s enlistment examination did not note a low back disorder. However, the Board finds that the Veteran did have a low back disorder that clearly and unmistakably existed prior to service. In this regard, the service treatment records clearly document the Veteran’s own statements that she had a motor vehicle accident prior to service in November 1981 and developed back problems (after the October 1981 enlistment examination, but prior to her 1982 period of active duty). Moreover, the February 2020 VA examiner addressed the preservice car accident and found that the Veteran had a preexisting low back disorder. Therefore, the Board has concluded that the Veteran had a low back disorder that preexisted her active service. Nevertheless, the evidence does not clearly and unmistakably establish that the disorder did not chronically worsen or increase in severity during the Veteran’s active service. Indeed, the February 2020 examiner specifically opined that the low back disorders were clearly and unmistakably aggravated beyond their natural progression by service. Thus, the presumption of soundness cannot be rebutted. Accordingly, the Veteran’s claim must be considered one for service incurrence or direct service connection. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). Based on the foregoing facts, the Board concludes that service connection is warranted for spondylosis and sacralization. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 54. REASONS FOR REMAND The Veteran was afforded a VA examination in February 2016 in connection with her claim for service connection for hypertension. The examiner opined that the Veteran’s hypertension was less likely than not due to her service-connected PTSD. He stated that the cause of her hypertension was multi-factorial, and although her stress due to PTSD may be a contributing factor, it certainly was not the only factor. The examiner indicated that there were other risk factors, including pain, race, and the Veteran’s exercise intolerance as a result of her back and knee conditions. The Veteran was afforded another VA examination in February 2020. The VA examiner opined that the Veteran’s hypertension was controlled and not aggravated by her PTSD. The VA examiner also referred to the February 2016 VA examination report stating that the Veteran’s hypertension was multi-factorial and noted that the PTSD may be a contributing factor, as well as was her exercise intolerance due to her knee and back disorders. Nevertheless, the evidence of record does not include a medical opinion specifically addressing whether the Veteran’s service-connected right knee and low back disabilities have caused or aggravated her current hypertension. Given the statements from the VA examiners indicating that she has exercise intolerance due to those disabilities and the fact that service connection has since been granted for a low back disorder, the Board finds that an additional theory of entitlement has been raised that requires a medical opinion. Therefore, the case must be remanded for such an opinion. The matter is REMANDED for the following action: The agency of original jurisdiction (AOJ) should refer the Veteran’s claims file to a VA examiner for a medical opinion as to the nature and etiology of her hypertension. A physical examination is only needed if deemed necessary by the VA examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has hypertension that is causally or etiologically related to her military service. In rendering this opinion, he or she should specifically address the elevated reading recorded in September 1983. The examiner should also provide an opinion as to whether it is at least as likely as not that any current hypertension is either caused by or aggravated by the Veteran’s service-connected PTSD, right knee degenerative joint disease, and lumbar spondylosis and sacralization, including any exercise intolerance resulting from those disabilities. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran’s service-connected disabilities did not cause her current hypertension, the examiner should still address whether those disabilities could have worsened her hypertension. In addition, the examiner should state whether it is at least as likely as not that the Veteran’s service-connected disabilities caused her to gain weight or become obese. If so, the examiner should provide an opinion as to whether the weight gain or obesity was a substantial factor in causing the Veteran’s hypertension. He or she should also provide an opinion as to whether the Veteran’s hypertension would not have occurred or worsened but for the weight gain caused by her service-connected disabilities. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of the conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Rideout-Davidson, 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.