Citation Nr: 21023656 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-28 383A DATE: April 21, 2021 ORDER Entitlement to service connection for a spine condition, including scoliosis is denied. FINDING OF FACT The Veteran’s spine condition, to include scoliosis, is not etiologically related to his active duty service, or due to aggravation by a preexisting condition. CONCLUSION OF LAW The criteria for entitlement to service connection for a spine condition, including scoliosis have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from January 1970 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran had a hearing before the undersigned Veterans Law Judge. The transcript of the hearing has been associated with the claims file. The Board remanded this claim to the RO for further development in January 2020 and November 2020. There was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Under 38 U.S.C. § 7104 (2018), Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (2018); 38 C.F.R. § 3.303 (2018). A Veteran seeking compensation under these provisions must establish three elements: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.” Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Certain chronic diseases may be presumed to have been incurred during service if they become manifested to a compensable degree within one year from separation from service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). This presumption is rebuttable by affirmative evidence to the contrary. Id. Moreover, evidence of continuous symptoms since active duty is a factor for consideration as to whether a causal relationship exists between an in-service injury or incident and the current disorder as is contemplated under 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for a spine condition, including scoliosis The Veteran contends that his in-service standing, climbing stairs, carrying heavy equipment, and running aggravated his preexisting scoliosis condition. The record establishes that the Veteran has been diagnosed with degenerative arthritis of the spine within the appellate period. See December 2020 VA examination. Thus, the current disability prong of a service connection claim has been satisfied. The second element of a direct service connection claim, an in-service incurrence, has not been established by the evidence. The December 2020 VA examiner explained there is no documentation of any treatment for, or diagnosis of a spine condition during service. He was noted to have mild scoliosis upon entry to the military. The Veteran was not seen for treatment of the lumbar spine until 2013. As the second element (in-service incurrence) is not demonstrated with respect to a spinal disorder, the claim for service connection for a back condition, including scoliosis, must be denied on a direct basis. Even if the second element could be established, the record still lacks a medical nexus. The examiner cited the lack of objective evidence for the 42-year period between separation of service and the onset treatment. This weighs against finding a continuity of symptoms sufficient to establish a nexus. Therefore, a causal relationship between the Veteran’s active duty service and his current spinal disorder could not be established because the large gap in treatment failed to establish a longitudinal trend of subjective complaints and objective findings. If the record showed treatment for the spine injury within one year of service separation and at least periodically thereafter, service connection may be granted based on continuity of symptomatology under § 3.303(a). Here, there were no complaints or treatment for residuals from running, climbing stairs, or from any other activity during service. Thus, service connection cannot be presumed under the provisions of 38 C.F.R. § 3.303(a). The Board has also considered whether service connection can be granted on a theory that his spine disability was aggravated beyond its natural progression by a pre-existing scoliosis disorder. 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. See 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 preexisted 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). Such presumption is only rebutted where the evidence clearly and unmistakably shows 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 “preexistence 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). The December 2020 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. It was noted that physical activity would not be expected to permanently aggravate mild scoliosis. The examiner further explained that mild scoliosis would not be expected to cause a significant truncal sway/lean, and that any more significant scoliosis would be expected to be apparent on later examinations (both physical examinations and radiological), but none of these are documented to demonstrate significant spinal curvature. The examiner cited literature from the American Academy of Orthopedics that stated, in part, “Sports activities and heavy backpacks do not cause scoliosis or make a curve worse. Heavy backpacks can be related to back pain, however.” The examiner concluded that the Veteran has age-related degenerative changes of his lumbar spine, with no aggravation of any mild scoliosis during his military service time. See December 2020 VA examination. This medical opinion is highly probative because it was based upon a thorough review of the claims file, medical literature, and a well-reasoned rationale. The Board finds this opinion to be factually accurate, fully articulated, and containing sound reasoning. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). (Continued on the next page)   The Board finds that service connection is not warranted for a spine condition on a direct basis, or aggravated by pre-existing scoliosis and there is no doubt to be otherwise resolved. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Nelson, 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.