Citation Nr: 21031333 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-21 902 DATE: May 21, 2021 ORDER Service connection for degenerative disc disease (DDD) of the thoracolumbar spine is granted. FINDING OF FACT A current lower back condition, which is related to back symptoms during service, clearly and unmistakably preexisted service and was aggravated therein. CONCLUSION OF LAW The criteria for service connection for DDD of the thoracolumbar spine have been met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1989 to February 1990. This case is on appeal from a February 2013 rating decision. In January 2019, the Veteran testified in a Board hearing. The case was last before the Board in December 2020. At that time, the Board remanded the claim for further development. Service connection for a low back condition. Legal Criteria 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. § 1131; 38 C.F.R. § 3.303. 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)). A veteran is presumed to have been sound upon entry into active service, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In addition, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Veteran contends that his low back condition is related to his military service. Specifically, he contends that his preexisting low back condition was aggravated by service. A low back condition was not noted on the Veteran's enlistment examination. Thus, there is no notation of it as a preexisting condition. McKinney v. McDonald, 28 Vet. App. 15, 22-23 (2016). Hence, the presumption of soundness does apply. Service treatment records (STRs) do not explicitly contain complaints or treatment for a low back condition. However, the Veteran was treated numerous times beginning in November 1989 (the month he entered the service) for bilateral leg, right knee, and hip pain. He was officially diagnosed with overuse syndrome in January 1990 and placed on restrictions for 10 days in November 1989, 7 days in December 1989, nearly the entire month of January 1990, and 4 days in February 1990. He then received a general discharge in February 1990. Despite the STRs not including explicit complaints or treatment for low back pain, the Veteran testified in January 2019 that he reported experiencing low back pain to his superior, was given pain medication, and placed on limited duty. Medical records include a November 2012 letter from the Veteran's private chiropractor stating the Veteran was first seen in his office in mid-1984 for examination and treatment of a lower back condition. He also noted that the Veteran's treatment for this condition is still ongoing. Medical records also include a July 2014 letter from his VA primary care physician stating the Veteran had been seen since September 2013, and that he has difficulty with chronic back pain dating back to 1984. During the December 2020 VA examination, the Veteran reported he was 22 or 23 years old when he hurt his back while cutting and lifting firewood. Therefore, the Board finds that the Veteran's low back condition clearly and unmistakably existed prior to service. In December 2020, a VA examiner opined that the claimed condition which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury, or illness. As rationale, the examiner provided it is clear that the Veteran did suffer a back injury prior to entry into service. The condition was acute and the Veteran fully recovered from the back condition prior to entering into service. Any back condition occurring during service is a totally separate condition and it is not possible without mere speculation to assign aggravation of the preexisting back condition (which was acute in nature) to his time in-service. The Veteran has been diagnosed with DDD of the lumbar spine, which occurs as normal wear and tear over a period of time. A nexus is not established. Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both preexistence and the absence of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). A "claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong," even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the burden is not on the claimant to show that his disability increased in severity. To the contrary, the burden is on VA to "establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease." Horn, 25 Vet. App. at 231. This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. On this point, there is conflicting evidence. As noted above, evidence of record includes two letters from the Veteran's physicians addressing his low back condition. The Veteran's private chiropractor stated that in the mid-1990s, his condition was worsened due to military service. After reviewing his military records, it is his professional opinion that the Veteran's time in service caused his condition to be aggravated beyond the natural progression of this condition. As rationale, the private chiropractor pointed to the Veteran's being diagnosed with an overuse injury and being placed on numerous restrictions beginning in November 1989. Specifically, the last restriction of activity was for 30 days, indicating that his condition became worse as he tried to return to the activities required by the military. In his July 2014 letter, the Veteran's VA physician stated that many of the activities required by the military considerably worsened his condition. He, too, noted that for almost a year the Veteran had restrictions because of his back condition. There is no doubt that the activities which were required by the military aggravated an already existing back condition. The Board finds no reason to question the private chiropractor or VA physician's medical judgment, especially given their longevity and familiarity with the Veteran's particular low back condition. Collectively, this evidence indicates there is, at the very least, a question as to whether the Veteran's preexisting condition was aggravated during service. As such, the second prong of the presumption of soundness is not rebutted as there is not clear and unmistakable evidence that the Veteran's low back condition was not aggravated beyond its natural progression during service. Therefore, the Board must consider the claim as a standard claim for service connection. In addition to the medical evidence summarized above, a January 2020 VA examiner opined it is less likely as not that the Veteran's back condition is related to service. As rationale, he provided that STRs were silent, post-service medical records were silent for many years, bone scan was normal in-service, and changes in CT c/w are normal wear and tear. Additionally, the December 2020 VA examiner provided an opinion on the relationship between the Veteran's DDD and his military activities. However, as the examiner applied the wrong standard, the opinion is inadequate and the Board finds it has no probative value. Evidence of record also includes the Veteran's January 2019 hearing testimony. He testified that he received complete relief from his back condition prior to entering the service. However, within two weeks of entering the service, he began noticing problems with his back again. He testified that he requested to see a doctor while in service and he was given pain medication and put on limited duty. Despite this, he was still encouraged to participate in running drills, for example, because he was in basic training at the time. As a result, he did not receive much relief for his back. He was ultimately given a general discharge in February 1990. The record reflects the Veteran was treated numerous times post-service for low back problems. As noted above, the Veteran's private chiropractor stated his back problems are ongoing. In March 2011, an occupational health note provides the Veteran occasionally sees his chiropractor for his back. In October 2013, the Veteran reported upper and lower back pain. In November 2013, the Veteran described the pain as being over his lower back with radiation into the buttocks and down the posterolateral leg to the knees, more on the right. He has intermittent exacerbations and intermittent episodes of right knee buckling. In July 2014, he continued to experience back pain and he was told that he might be a candidate for surgery by a neurosurgeon. The pain was also described as constant, with variable intensity. In May 2015, the Veteran complained of back pain, noting it is very pain with some functional limitation and other days the symptoms are minimal. In addition to this, he sometimes experiences numbness/tingling in his legs, especially the right as a result of the pain. Most recently, in June 2020, the Veteran reported increased back pain for several weeks. After review of all lay and medical evidence, the Board finds the opinions of the private chiropractor and VA primary care physician highly probative. They both have clearly stated opinions and conclusions, and explain the medical reasons underpinning those opinions and conclusions. Moreover, the examiners' explanations are understandable, based on familiarity with the Veteran's specific back condition, given the longevity of received treatment, and unlike the January 2020 VA examiner's opinion, all inferences appear to follow from the facts and information given. Thus, overall, the private chiropractor and VA primary care physician's opinions are of great probative weight and establish why, as a medical matter, a nexus in this case is likely. For these reasons, the Board finds the evidence is at least in equipoise in showing that the current low back condition, diagnosed as DDD of the thoracolumbar spine, is related to service. When resolving reasonable doubt in the Veteran's favor, the Board finds that the low back condition is related to service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for DDD of the thoracolumbar spine is warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, 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.