Citation Nr: 21027867 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-35 169 DATE: May 7, 2021 ORDER Entitlement to service connection for lumbar spine disability is denied. FINDING OF FACT Clear and unmistakable evidence demonstrates that the Veteran's lumbar spine disability pre-existed his period of active service, and clear and unmistakable evidence demonstrates that disorder did not increase in severity therein. CONCLUSION OF LAW The Veteran's lumbar spine disability clearly and unmistakably pre-existed his period of active service and clearly and unmistakably was not aggravated therein; the presumption of soundness at entry is rebutted. 38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1968 to January 1970. In June 2019, the Veteran testified before the undersigned Veterans Law Judge at a Board of Veterans' Appeals (Board) hearing in Harrison, Montana. A transcript of the proceeding is of record. The VLJ clarified the issue, determined if there were outstanding evidence and explained the concepts of service connection. The actions of the VLJ comply with 38C.F.R. §3.103. The matter was remanded to the agency of original jurisdiction (AOJ) in December 2019 for VA examination and to seek any additional service personnel records (SPRs). A thorough search was conducted. A May 2020 VA/DoD Identity Repository (VADIR) report dated May 8, 2020 does not indicate he served in the Marines. In addition, military personnel records received in December 2019 did not document any service in the Marines nor did these records provide any evidence of injury to the back. In June 2020, VA sent the Veteran a development letter asking him to submit additional evidence to support the appeal pertaining to service in the Marine Corp. Although VA did not receive a written response, in January 2021 he reported that he was never in the Marine Corps VA examination was also accomplished as directed and the matter has been returned to the Board. A claim for service connection for hearing loss disability was remanded along with this claim but was granted by the AOJ in February 2021. Service Connection Veterans are entitled to compensation from VA if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service 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). A veteran will be considered 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 examination, acceptance and enrollment. See 38 U.S.C. §§ 1111, 1137, 38 C.F.R. § 3.304 (b). This concept is often referenced as the presumption of soundness. Only those conditions recorded in examination reports can be considered as "noted," 38 C.F.R. § 3.304 (b), and a history of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304 (b)(1). The United States Court of Appeals for the Federal Circuit has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111. Regarding the existence of a preexisting condition, to be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); 38 U.S.C. § 1111. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304 (b)(1). However, the recording of such a history during the entrance examination will be considered together with all other material evidence in determinations as to inception of the disability at issue. Id. To rebut the presumption of sound condition for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service the second step necessary to rebut the presumption of soundness a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C. § 1153. If the presumption of sound condition is not rebutted, "the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. That is to say, no deduction will be made for the degree of disability existing at the time of the veteran's entry into service. Id.; 38 C.F.R. § 3.322 In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159 (a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for lumbar spine disability is denied. The Veteran urges he hurt his back in service. There has been a question as to the characterization of what happened to him prior to his documented service in the Army. He has asserted that he had a short period of service in United States Marine Corps. He stated in January 2021 that he never made it into the Marines, he did not make it past the intake center. He has also stated, in April 2021, that (1) he was sworn into the USMC but put on a delay program, (2) his back was aggravated two times in service and he was given pills, (3) he never injured his back three times before entering service. However, official records only document service in the Army as noted above. Acknowledging the conflicting information about whether the Veteran served in the (USMC), prior to joining the United States Army, the Board remanded in December 2019 to seek outstanding personnel and treatment records related to any such service. It was noted at that time that during a September 2014 VA examination the Veteran was reportedly turned down by the USMC due to a back injury. However, at his June 2019 hearing, he testified to joining the USMC in 1966. Additionally, in May 2015, the Veteran's representative submitted a certificate that indicates the Veteran was honorably discharged from the USMC in November 1966. See personnel record received May 19, 2015. Furthermore, during his Army induction examination in October 1967, the Veteran reported a history recurrent back pain and that he was discharged from military service in November 1966 due to back trouble. He reported the same during his December 1969 separation examination. The Board also sought a new VA medical examination and opinion as the prior record was not adequate in that it did not provide an opinion based on a complete record. We note that no additional SPRs were obtained on remand despite a thorough search. We find his active duty only includes the Army service. It is not in dispute that there is current low back disability and that it has existed for years. We note the lay statement indicating that the Veteran used to like to go dancing but that his back would hurt. The Board acknowledges that the Veteran's low back condition was not actually noted as being present at his induction examination in October 1967. The spine was normal. He had reported recurrent back trouble and noted in March 1966 he had back trouble related to carrying boxes, and was treated at Sacred Heart Hospital. There was a reference to back trouble in October 1966 and back trouble in November 1966, with a note of honorable discharge. He was found qualified for service. Because a low back disorder was thus not actually noted at entry, he is entitled to a presumption of soundness. However, the presumption of soundness may be rebutted. The burden falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both pre-existing and not aggravated by active service. 38 U.S.C. § 1111. In this regard, VA may show a lack of aggravation by establishing that there was no increase in disability during active service; or may show that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C. § 1153; Wagner, 370 F.3d at 1196. The burden of proof is on the government. In January 1968 in service, it was noted he was told he had a slipped disc but the radiographic report was negative for lumbar spine. In November 1968, he reported he hurt his back while lifting and carrying pots and pans at mess tent. He gave a history of back trouble. At his separation exam in December 1968, the spine was normal. However, again he reported having back trouble, hurt back carrying boxes sacred heart hospital in March 1966. He also reported back trouble in October 1966 and November 1966, with Honorable discharge from Marine Corp. VA examination was accomplished in December 2020 by an examiner that reviewed the entire record and examiner the Veteran. The diagnosis was lumbar degenerative joint disease which was noted as made in 2014. The examiner observed that the Veteran injured his low back at age 16. He was turned down by the Marines and then was accepted into the Army. It was noted that the Veteran hurt his back twice in basic training. He has had constant back pain since age 16 worsened by bayonette practice, jumping on/off tanks and training. Current symptoms were a constant low back pain rated as "6" but can go to a "10". Treatment was with aspirin as needed. The examiner found that the low back condition clearly and unmistakably pre-existed service and was not aggravated beyond its natural progression by an in-service injury, event, or illness. As to pre-existence, they noted that the induction exam in October 1967 notes "hurt back 3/1966; hurt back carrying boxes", 10/1966 "back trouble", 11/1966 "back trouble, honorably discharged for USMC". They thus noted that the Veteran had a previous back complaint prior to army career. The condition clearly and unmistakably existed prior to Veteran's service. As to why the back condition was not aggravated by service, they noted that in service he "hurt back while lifting and carrying pots. History of back trouble before. Bending over all day while on K-P". The exam showed a right sided muscle spasm. The separation exam in December 1968 showed a spine evaluation to be normal. 28 years later in December 1996 the Veteran was seen for LBP and diagnosed with a back strain. Lumbar, thoracic and pelvic X-rays were all normal. The Veteran was seen once in service for a back strain, and the separation exam was normal. Therefore, the pre-existing spinal condition was not aggravated by service with a normal spine exam for the separation physical. The examiner summarized that the induction exam in October 1967 notes "hurt back 3/1966; hurt back carrying boxes", 10/1966 "back trouble", 11/1966 "back trouble, honorably discharged for USMC". Veteran with a previous back complaint prior to army career. The condition clearly existed prior to Veteran's service. The Veteran was seen once in service for a back strain, and the separation exam was normal. Therefore, the preexisting spinal condition was not aggravated by service with a normal spine exam for the separation physical. The Veteran has challenged certain specific details reported in the documented history and the examination report to some extent as noted above. However, we find that the documented record is the most reliable information as to the critical events in this case. The documented record outweighs the Veteran's later statements in terms of what actually happened and what he reported back in service. We find the Veteran's recent statements in support of the claim to be far less probative and less credible than the contemporaneous records. The evidence of record clearly and unmistakably establishes that the Veteran's low back disorder preexisted his period of service. The Veteran reported during his induction and on several occasions in service that he had pre-service back problems. The 2020 VA examiner has opined that these reports clearly and unmistakably show pre-existing back disorder. The Board agrees, the examiner's opinion is consistent with the documented record. It is the most probative evidence on pre-existence. We find clear and unmistakable evidence that rebuts the first prong of the presumption of soundness. The question now becomes whether there was any increased severity, beyond natural progression, of the Veteran's low back disorder during his period of active service. Here, the 2020 VA examiner is persuasive and gives a reasoned discussion for the opinion that the overall evidence shows no aggravation during service. The finding of no aggravation was based on the fact that the Veteran did not have any spine abnormalities or low back abnormalities at service separation. The opinion is accurate, fully articulated, and contains sound reasoning that is not contradicted by the medical record. Therefore, the Board finds the 2020 examiner's opinion to be highly probative for resolving the matter of aggravation. The opinion and the normal separation examination establish that the pre-existing back disorder was not aggravated during service. The evidence is against finding that the Veteran experienced worsening of the pre-existing low back disorder in his period of active service. Specifically, no back abnormality was noted at the time of the Veteran's examination closest in time to separation. The 2020 examiner reviewed the record and found that, medically speaking, there was no evidence of aggravation, to include aggravation beyond the normal progression. Indeed, they found the back condition was clearly and unmistakably not aggravated. The Board cannot reasonably infer that any competent evidence supports the proposition that pre-existing low back disorder was aggravated in service. In short, for the reasons and bases set forth above, the Board concludes that the evidence weighs against granting service connection for the Veteran's low back disorder. Here, there is clear and unmistakable evidence that a back disorder pre-existed service and clear and unmistakable evidence that there was no increase in severity during service. On this matter, the evidence is against the claim; the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b). H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. RIPPEL, 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.