Citation Nr: 21030884 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 15-42 340 DATE: May 19, 2021 ORDER Entitlement to service connection for a lumbar spine disability is denied. FINDING OF FACT 1. The Veteran's scoliosis, which clearly and unmistakably preexisted service, was not aggravated by service. 2. The Veteran's spondylolisthesis was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1982 to August 1985. This matter comes to the Board of Veterans' Appeals (Board) from a December 2012 rating decision which continued to deny service connection for a lumbar spine disability. In February 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A copy of the transcript is of record. In a September 2019 decision, the Board found that new and material evidence had been received to reopen a claim of entitlement to service connection for a lumbar spine disability and remanded the claim for further development, to include obtaining a new VA examination and medical opinion. 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; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where the evidence shows a "chronic disease" in service or "continuity of symptoms" after service, the disease shall be presumed to have been incurred in service. For the showing of a "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. With a chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of "continuity of symptoms" after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, except where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. Thus, veterans are presumed to have entered service in sound condition as to their health. This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The regulation provides expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions." Id. at (b)(1). If a disorder was not "noted" on entering service, the government must show clear and unmistakable evidence of both a preexisting condition and a lack of in-service aggravation to overcome the presumption of soundness. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Wagner, 370 F.3d at 1097. In explaining the meaning of an increase in disability, the Court has held that "temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992); see also Davis v. Principi, 276 F.3d 1341, 1346 (Fed. Cir. 2002) (explaining that, for non-combat veterans, a temporary worsening of symptoms due to flare ups is not evidence of an increase in disability). However, the increase need not be so severe as to warrant compensation. Browder v. Derwinski, 1 Vet. App. 204, 207 (1991). Of note is that the burdens and evidentiary standard to determine whether conditions noted at entrance into service were aggravated by service are different than the burdens and evidentiary standard to determine whether conditions not noted at entrance into service were aggravated. If a preexisting condition noted at entrance into service is not shown to have as likely as not increased in severity during service, the analysis stops, and the claim is denied. Only if such condition is shown by an as likely as not standard to have increased in severity during service does the analysis continue. In such cases, the increase is presumed to have been due to service unless there is clear and unmistakable evidence that the increase during service was not beyond the natural progression of the condition. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to service connection for a lumbar spine disability. The Veteran contends that service connection is warranted for a lumbar spine disability. Specifically, he contends that his back pain began during service due to bending and twisting and has continued since. The Veteran has current diagnoses of scoliosis and spondylolisthesis. Spondylolisthesis, a type of degenerative arthritis, is an enumerated condition under 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). As it pertains to the Veteran's scoliosis, there is a question as whether the disability preexisted the Veteran's service from August 1982 to August 1985. The Veteran established "veteran" status based on his period of active duty service and his appeal is based on this period of active duty. The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The Veteran's January 1982 entrance examination is absent of any notations of defects, infirmities, or disorders. Additionally, the evidence is at least in equipoise as to whether the Veteran's lumbar spine disability manifested during service. Service treatment records show that in January 1983, the Veteran complained of low back pain on and off for one to two weeks. Upon examination, there was good range of motion with mild pain on the left side and mild tenderness to L2-5. Mild levoscoliosis was also noted. The Veteran was diagnosed with muscle strain and scoliosis and prescribed heat. In March 1984, the Veteran complained of low back pain for two days but denied any trauma. Upon examination, there was good range of motion with no acute pain. The lower back was not sensitive to touch but there was some slight pain upon standing and bending backwards. The Veteran was diagnosed with back pain and prescribed heat, exercise, and aspirin and returned to duty. The Veteran's service treatment records are otherwise silent for complaints of or treatment for back pain. Here, the Veteran's scoliosis was not noted upon entry to service. Therefore, with respect to scoliosis, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). VA obtained a medical opinion in October 2020. After reviewing the claims file and the Veteran's medical history, the examiner noted that in April 1992, the Veteran reported he first injured his back in sixth grade when he fell off of a buggy, and then again a year later while lifting. While the Veteran's entrance examination was silent for back troubles, the Veteran sought treatment for back pain in January 1983, when mild levoscoliosis was noted, and again in March 1984. The examiner explained that there are several types of scoliosis but the most common are adolescent idiopathic scoliosis, which develops during the early adolescent growth spurt, and degenerative scoliosis, which occurs with aging as the spine and discs degenerate. The fact that the Veteran's scoliosis was noted on the January 1983 service treatment record, just five months after entry into active duty, indicates that the Veteran's scoliosis was of the adolescent idiopathic type. The examiner indicated that scoliosis does not develop from bending and twisting activities and certainly would not develop in just five months. Therefore, the examiner opined that the Veteran's scoliosis clearly and unmistakably preexisted the Veteran's service. Thus, the most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's scoliosis preexisted service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "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, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 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). 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). The October 2020 VA examiner indicated that while the Veteran had at least two episodes of back problems prior to service, these episodes appeared to have resolved without sequalae as no follow-up visits occurred. The examiner additionally noted that the Veteran's July 1985 separation examination and August 1985 National Guard enlistment examination were both silent for back troubles. Thus, the examiner indicated that there did not appear to be a progression of his scoliosis in service. Here, the Board finds that the most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the Veteran's scoliosis was not aggravated by military service. Rather, the symptoms experienced during service in January 1983 and March 1984 were merely temporary or intermittent flare-ups during service, and acute symptomatology is not sufficient to be considered "aggravation in service." As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran's scoliosis preexisted service and was not aggravated by such. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection for scoliosis based direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The question for the Board then becomes whether the Veteran's spondylolisthesis was incurred during or is otherwise related to service. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). As it pertains to the Veteran's spondylolisthesis, as discussed above, arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. VA treatment records show the Veteran was not diagnosed with spondylolisthesis until May 1999, more than a decade after his separation from service in August 1985 and years outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of low back pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of spondylolisthesis as the Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires specialized medical education and knowledge of interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that these symptoms were instead attributable to the Veteran's employment subsequent to service. Specifically, the October 2020 VA examiner noted that after service, the Veteran continued to have episodic back pain and sought chiropractic treatment. However, after service, the Veteran was employed as a mail carrier, corrections officer, and a custodian, and that each of those occupations is known to be associated with back pain. Service connection for spondylolisthesis may still be granted on a direct basis; however, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's spondylolisthesis and an in-service injury, event, or disease, to include bending and twisting. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. In an August 2012 letter, the Veteran's treating clinician, Dr. K.W., after reviewing the Veteran's medical history, opined that it was at least as likely as not that the Veteran's spondylolisthesis was a result of or aggravated by his active military service, including excessive climbing up and down off of vehicles and twisting and turning while performing inspections and repairs. Dr. K.W. indicated that the Veteran's spondylolisthesis was consistent with the job duties that the Veteran's performed while serving in the military. The Veteran was afforded a VA examination and medical opinion in December 2012. The Veteran reported he could not recollect any particular injury during service but that he sought treatment at Fort Hood for low back pain and was found to have scoliosis, which he was told it was something he had all his life. The Veteran reported working odd jobs after separation from service, including four years as a corrections officer, seven years as a mail carrier, and ten years as a high school custodian. After examining the Veteran, reviewing the claims file, and noting the Veteran's medical history, the examiner provided a diagnosis of spondylolisthesis. The examiner noted the Veteran had low back pain in service secondary to muscle strain and was incidentally noted to have levoscoliosis. The examiner indicated there was no documentation to support that the levoscoliosis noted during service had persisted, as a December 2011 imaging study only revealed mild dextrorotoscoliosis. The examiner also indicated that medical literature did not support that the Veteran's in-service muscle strain or even levoscoliosis could cause his spondylolisthesis. Thus, the examiner opined that the Veteran's spondylolisthesis was less likely than not incurred in or caused by service. In September 2019, the Board remanded the matter to obtain outstanding private treatment records and for a new VA examination and medical opinion, noting that neither the August 2012 private opinion nor December 2012 VA opinion considered the possibility of a preexisting condition when rendering etiological opinions. In a September 2019 letter to the Veteran, VA invited the Veteran to complete a VA Form 21-4142 (Authorization to Disclose Information to the Department of Veterans Affairs (VA)) and VA Form 21-4142a (General Release for Medical Provider Information to the Department of Veterans Affairs (VA)). To date, no response has been received. VA twice attempted to schedule a VA examination, but the Veteran indicated that he was unavailable or requested to cancel his examination. A January 2020 VA Form 27-0820 (Report of General Information) reflects that the Veteran contacted VA to express that he did not want to attend any more appointments in connection with his service connection claim and requested VA make a decision without the need for further examinations. As such, VA obtained a VA medical opinion only in October 2020. The October 2020 VA examiner reviewed the Veteran's claims file, medical history, and the August 2012 opinion of the Veteran's private treating clinician. The October 2020 examiner indicated that while Dr. K.W. had opined in August 2012 that it was at least as likely as not that the Veteran's spondylolisthesis was due to his military service and climbing, twisting, and turning, the medical literature did not support intermittent climbing, twisting, or turning as a cause of spondylolisthesis. The examiner also noted that Dr. K.W. did not consider that the veteran had back trauma prior to military service or that after service, the Veteran was employed as a mail carrier, corrections, officer, and custodian, occupations known to be associated with back pain. The examiner explained that while some athletes, especially gymnasts or football linemen, develop isthmic spondylolisthesis due to stress fractures from excessive, forced spine hyperextension, the Veteran's military duties would not have reached this level of activity. Rather, the most common form of spondylolisthesis in adults is degenerative and occurs with aging as the discs in the spine dry out. The examiner noted that symptoms of back pain from scoliosis and spondylolisthesis are known to worsen over time as degenerative changes from aging process and that progression of such is due to aging, not to intermittent bending, twisting, or climbing activities. The examiner emphasized that this disc thinning was noted on the Veteran's 1999 imaging studies. The Board finds the December 2012 and October 2020 VA opinions, taken together, are adequate and probative. The examiners' opinions are based on their medical expertise and are supported by adequate rationale with consideration of the medical literature and the Veteran's in-service and post-service medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). While the Veteran believes his spondylolisthesis is related to an in-service injury, event, or disease, including bending and twisting, he is not competent to provide a nexus opinion in this case. This issue is also medically complex, as it requires specialized medical education and the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence relating the Veteran's post-service back pain to his occupations after service and his spondylolisthesis to the aging process, rather than to an injury incurred in service or otherwise related to service. (Continued on next page) In sum, the probative evidence of record demonstrates that the Veteran's preexisting scoliosis was not aggravated by service and his spondylolisthesis was not incurred in service and is not otherwise related to service. As the preponderance of the evidence is against the claim of service connection for a lumbar spine disability, there is no doubt to be resolved, and the Veteran's claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Owen, 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.