Citation Nr: 21015579 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 11-25 036 DATE: March 17, 2021 ORDER Service connection for residuals of a low back injury and degenerative arthritis is granted. Service connection for a cervical spine disability, to include degenerative arthritis is denied. FINDINGS OF FACT 1. The Veteran currently has a low back disability that is related to his active military service. 2. The preponderance of the evidence is against finding that the Veteran has a currently diagnosed cervical spine disability that began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a low back disability are met. 38 U.S.C. §§ 1110, 1111, 1153, 5107; 38 C.F.R. §§ 3.303, 3.304, 3.306(a). 2. The criteria for service connection for a cervical spine disability, to include degenerative arthritis are not met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1966 to November 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision. The Board remanded the claims for further development in October 2019. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998). At the time of the October 2019 Board remand, the issues on appeal included service connection for bilateral lower extremity peripheral neuropathy. In December 2019, service connection was granted for bilateral lower extremity peripheral neuropathy and separate 20 percent ratings were assigned for each extremity effective December 10, 2014. This action constituted a full grant of the benefits sought. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). 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 veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. §§ 1111, 1137. In order to rebut the presumption of soundness, the government must show by clear and unmistakable evidence that (1) a veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness by demonstrating with clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). Low back The Veteran contends that he has a low back disability that is the result of his service. The Veteran underwent a VA examination in June 2016 that confirmed an earlier diagnosis of degenerative arthritis of the spine. This finding illustrates a current diagnosis of a thoracolumbar spine disability, satisfying the first element of a service connection claim. As discussed previously a Veteran is presumed to be in sound condition when entering service. In the present case, the Veteran’s July 1966 entrance examination is silent for any back condition. However, the Veteran’s STRs contain noted in December 1966 that the Veteran has been experiencing back issues for over 2 years, dating to prior the Veteran’s service. A September 2020 VA examination noted that this was clear and unmistakable evidence that the Veteran’s disability preexisted his service. Accordingly, the Board must determine whether the presumption of soundness has been rebutted. See Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012) (holding that the presumption of soundness applies only when a disease or injury manifests in service which was not noted on entry, and a question arises as to whether it preexisted service). For the following reasons, the Board finds that the presumption of soundness has not been rebutted. This presumption can be rebutted only if there is clear and unmistakable evidence that (1) a veteran’s disability existed prior to service and (2) that the pre-existing disability was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The Veteran underwent a VA examination in September 2020 to determine the etiology of the Veteran’s lumbar spine disability. As discussed previously, the examiner noted that the Veteran’s disability clearly and unmistakably existed prior to the Veteran’s service. Further, the examiner went on to conclude that this condition was exacerbated as a result of an in-service pool injury. This shows that there is not clear and unmistakable evidence that the Veteran’s pre-existing disability was not aggravated during service. Thus, VA has not met its burden to rebut the presumption of soundness. Therefore, the second element of service connection is established. See Wagner, 370 F.3d at 1096. Lastly, the September 2020 VA examiner concluded that the Veteran’s lumbar disability is as least likely as not incurred in or caused by the claimed in-service injury, event, or illness. Specifically, the examiner stated that the in-service pool injury described by the Veteran exacerbated by his fall into the pool, establishing a link between the Veteran’s in-service injury, and the Veteran’s current disability. Therefore, service connection for a low back disability is warranted. Cervical spine The Veteran contends that he has a cervical spine disability that is related to service. VA medical records show the Veteran was diagnosed with degenerative arthritis of the spine in 2015. Additionally, the Veteran underwent a VA examination in April 2018 which confirmed this diagnosis. These findings illustrate a current diagnosis of a cervical spine disability, fulfilling the first element of a service connection claim. In September 2020, the Veteran underwent a VA examination in order to determine the etiology of this disability. The examiner confirmed a diagnosis of degenerative arthritis of the spine. However, the examiner noted that this degeneration was age related. Specifically, the examiner opined that it was less likely than not that the Veteran’s cervical spine disability was incurred in or caused by the Veteran’s active duty service. This finding was based on the fact that the Veteran was seen in December 1966 for treatment for back pain and numbness in both legs. However, the examiner noted that this treatment was before the claimed pool injury the Veteran asserts was the cause of his cervical disability. Further, the examiner noted that the symptoms and findings do not fit the clinical picture of a neck condition. The examiner went on to conclude that the Veteran’s current cervical spine disability is less likely than not incurred in, or otherwise related to, the Veteran’s military service. The Board acknowledges the Veteran’s own assertions in support of his claim. However, as a layperson without the appropriate medical training and expertise, the Veteran has not demonstrated the competency to opine as to the etiologies in this matter. Furthermore, neither the Veteran nor his representative has presented or identified any additional medical opinion or other competent evidence that supports the Veteran’s claim. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jorge Barroso, 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.