Citation Nr: 21010947 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 10-45 937 DATE: February 26, 2021 ORDER Service connection for a low back disorder is denied. FINDING OF FACT The Veteran’s low back disorder, diagnosed as lumbosacral strain sprain, clearly and unmistakably pre-existed her entrance to active duty and clearly and unmistakably was not aggravated therein. CONCLUSION OF LAW The criteria for service connection for a low back disorder have not been met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1997 to July 2007. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in February 2009 by a Department of Veterans Affairs (VA) Regional Office. In a July 2017 decision, the Board denied service connection for a low back disorder, which the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In March 2018, the Court granted the parties’ February 2018 Joint Motion for Remand (JMR), which vacated and remanded the July 2017 Board decision. In August 2018 and August 2020, the Board remanded the case for additional development and it now returns for further appellate review. Entitlement to service connection for a low back disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease 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). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). Every veteran shall be taken 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the veteran’s entrance examination report, this presumption of soundness operates to shield the veteran from any finding that the unnoted disease or injury pre-existed service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991); 38 C.F.R. § 3.304(b). If a condition is not noted upon entrance into service, then to rebut the presumption of soundness at service entrance VA must show by clear and unmistakable evidence both that the veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby, 1 Vet. App. at 227; VAOPGCPREC 3-2003 (July 16, 2003). The two parts of this rebuttal standard are referred to as the “pre-existence prong” and the “aggravation prong.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). To satisfy this second-prong requirement for rebutting the presumption of soundness, the government must show by clear and unmistakable evidence either that there was no increase in disability during service or that any increase in disability was “due to the natural progression” of the condition. Joyce v. Nicholson, 443 F.3d 845, 847 (Fed. Cir. 2006). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no 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. Id.; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Further, 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); 38 C.F.R. § 3.306(a). 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). In the instant case, the Veteran denied current back trouble as well as a history of back trouble on a March 1997 prescreening form and, while her April 1997 Report of Medical History completed at the time of entry to service shows that she denied recurrent back pain and her spine was normal upon clinical evaluation in a contemporaneous Report of Medical Examination, she did report receiving chiropractic treatment at the age of 16 and back trouble from 1995 to 1997. Furthermore, an April 1997 private treatment record shows the Veteran injured her back while stretching in physical education in May 1995. The diagnosis was mild lumbosacral strain sprain, the treatment involved manual manipulative therapy, and the chiropractic physician indicated the problem had resolved. In the July 2017 decision, the Board relied upon an August 2016 VA examiner’s unfavorable opinion, which determined that the Veteran’s lumbosacral strain sprain clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event, injury, or illness. However, the parties agreed in the February 2018 JMR that such opinion was inadequate and, thus, the Board will further consider the August 2016 VA examiner’s opinion. Pursuant to the JMR, the Board remanded the issue in August 2018 in order to obtain an addendum opinion, which was provided in August 2019. However, in the August 2020 remand, the Board found that such opinion was also inadequate for adjudication purposes and, thus, such will not be further discussed herein. Consequently, the Board again remanded the case to obtain an addendum opinion. In October 2020, the VA physician who proffered the opinion in August 2019 provided an addendum opinion. At such time, she opined that the Veteran’s low back disorder, diagnosed as mild lumbosacral strain sprain, clearly and unmistakably pre-existed her entrance to active duty and clearly and unmistakably was not aggravated therein. As pertinent to the first prong of the inquiry, the VA physician acknowledged the private physician’s finding that the Veteran had no current disability in April 1997 as her back pain had resolved and it is presumed that the enlistment examiner did not find any abnormalities on examination, but found that such low back disorder was present approximately two years prior to service. In support of such determination, she cited to the April 1997 private treatment record documenting the May 1995 injury and the Veteran’s own report of chiropractic treatment. With respect to whether such pre-existing disorder was aggravated by service, the VA physician acknowledged the Veteran’s lay statements that her back pain was exacerbated by her work in aircraft maintenance, which involved lifting, carrying, and replacing heavy aircraft parts and hunching over aircrafts, and she had sought treatment for back complaints during service, to include while deployed when the associated treatment records showing a physical profile and prescription of muscle relaxants were lost. However, she found pertinent that complaints of back pain were documented in the service treatment records only three times during the Veteran’s 10-year period of service and only two of those complaints were deemed musculoskeletal in etiology. She also noted that post-service treatment records documented other injuries, to include a surfing injury in 2011 and a motor vehicle accident in 2012, which put the Veteran at significant risk for a back injury. The VA physician further found it significant that post-service treatment records were silent for complaints of back pain until 2013, when the Veteran was seen for upper back pain, and opined that such indicated a lack of chronicity after service. The VA physician further explained that a lumbar strain is an injury to the lower back, which results in damaged tendons and muscles that can spasm and feel sore, while a sprain is the stretching or tearing of a ligament. In this regard, she indicated that ligaments are the fibrous bands of tissue that connect two or more bones at a joint and prevent excessive movement of the joint. A back strain and sprain can be caused by a single instance of improper lifting or by overstressing the back muscles, and a chronic (long-term) strain usually results from overuse after prolonged, repetitive movement of the muscles and tendons. The VA physician opined the Veteran’s current low back disorder is most likely an exacerbation of her original injury prior to service and not a result of service. Ultimately, the VA physician opined the Veteran’s low back disorder, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. In this regard, she noted that, according to the August 2016 VA examination report, the Veteran injured her back in 1995 during stretching in gym class. She developed low back pain and was seen by a chiropractor. The Veteran was medically cleared prior to joining the military, and denied ongoing back symptoms at such time. During active duty service, she worked in aircraft maintenance and reported that she was constantly experiencing back pain; in particular, she hurt her back picking something up in 1996 and was treated with pain medication for several weeks. Since that time, the Veteran reports intermittent symptoms that became daily in 2016. In this regard, the VA physician explained that episodes of back pain are self-limited for many individuals and, based on the Veteran’s service treatment records, it appears her two acute exacerbations were self-limiting over her 10 years of service. Although both episodes were clearly aggravations of her pre-existing back condition due to an in-service injury, she concluded that the claimed condition was not aggravated beyond its natural progression by an in-service event or injury. In this regard, the VA physician found determinative that the Veteran’s post-service records were silent for complaints of back pain until approximately five years after her separation from service, which not only indicated a lack of chronicity after service, but also a new injury to the back post-service. In this regard, VA treatment records dated in September 2012 revealed neck and back pain complaints after a March 2012 car accident. Upon review, the Board affords great probative value to the October 2020 VA examiner’s opinion as it reflects consideration of all relevant facts, with specific citation to service treatment records, post-service treatment records, and the Veteran’s lay statements, and provided a complete rationale, relying on and citing to the records reviewed. Moreover, the examiner offered clear conclusions with supporting data as well as reasoned medical explanations connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (“[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”). In this regard, the VA physician clearly considered the facts of the Veteran’s specific case, but found her pre-existing back disorder, diagnosed as lumbosacral strain sprain, was asymptomatic and therefore “resolved” at the time of her entrance to service and was not aggravated therein. She further determined the Veteran’s low back disorder was an aggravation of the original back disorder that pre-existed service; however, such aggravation was not the result of the Veteran’s service or any duties associated therewith. Notably, there is no medical opinion to the contrary. In this regard, the Board acknowledges the Veteran’s reports of back pain in-service and the VA physician’s notation of two documented acute exacerbations in service; however, the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis, supra; 38 C.F.R. § 3.306(a). Additionally, evidence being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green, supra. Furthermore, while the Veteran is competent to report relevant symptomatology such as pain, he as a lay person, is not competent to offer an opinion as to whether her pre-existing low back disorder underwent an increase in the underlying severity during her military service as such is a complex medical question extending beyond an immediately observable cause-and-effect relationship. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, such matter involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the musculoskeletal system and the impact repetitive motion and trauma have on the spine. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Thus, the Veteran’s opinion as to the etiology of her low back disorder is not competent and, consequently, is afforded no probative weight. In conclusion, the Board finds that a low back disorder, diagnosed as lumbosacral strain sprain, clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated therein. Consequently, service connection for such disorder is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for service connection for a low back disorder. As such, that doctrine is not applicable in the instant appeal and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.