Citation Nr: 21031751 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 15-03 325 DATE: May 24, 2021 ORDER Entitlement to service connection for a right leg disability, claimed as right leg weakness, is granted. REMAND Entitlement to service connection for a neck disability, claimed as neck pain, to include as secondary to service-connected lumbar spine disability, is remanded. FINDINGS OF FACT The Veteran's right leg disability clearly and unmistakably pre-existed service and was aggravated during service. CONCLUSIONS OF LAW The criteria for service connection for a right leg disability are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the Army from September 1969 to January 1970. This matter is before the Board of Veterans' Appeals (the Board) on appeal from July 2010 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2014, the Veteran testified at a Decision Review Officer (DRO) hearing. A transcript of the hearing is in the evidence of record. In January 2019 and November 2020, the Board remanded the Veteran's claims for further development. A January 2021 rating decision granted service connection for degenerative disc disease with facet joint arthropathy of the lumbar spine. Therefore, this claim is no longer on appeal before the Board. 1. Entitlement to service connection for a right leg disability, claimed as right leg weakness. The Veteran seeks entitlement to service connection for right leg weakness. He reports a history of childhood polio that affected his back and legs; however, he registered for the draft and was willingly inducted. The Veteran indicates that in basic training, he became aware of his limitations due to his history of polio. He had difficulty running and tried to improve his running with strengthening exercises. However, he continued to be on the cusp of the time requirements for running and experienced severe leg and back cramps daily. He was placed on temporary restrictions of no crawling, stooping, running, jumping, standing over ten minutes, or marching and walking over a quarter mile until his discharge from active duty. Ultimately, he was medically discharged for pes cavus deformity bilaterally with contracture of multiple tendons. He contends that his military training aggravated his conditions. 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). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA 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, 53 (1990). 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). The statute provides that the presumption of soundness applies when a veteran has been "examined, accepted, and enrolled for service," and where that examination revealed no "defects, infirmities, or disorders." 38 U.S.C. § 1111. Importantly, the entrance report of medical examination is not the same as the entrance report of medical history. 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 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). In this case, there is a question as to whether the Veteran's right leg disability preexisted his military service. The Veteran's July 1967 entrance examination is absent of any notations of defects, infirmities, or disorders regarding the right leg. The lower extremities category was marked "normal" and under the physical profile section, the Veteran was assigned a 1 for each category, including the "P" category for physical capacity, indicating good muscular development with ability to perform maximum effort for indefinite periods, and the "L" category for lower extremities. Additionally, the evidence is at least in equipoise as to whether the right leg disability manifested during service. For example, in November 1969, a service treatment note indicates the Veteran reported his leg muscles were weak, and that he had a history of polio as a child. No atrophy was noted as the time, and he was advised to try for a profile. Therefore, with respect to the right leg disability, 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 pre-existed 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). The most competent and credible evidence of record shows that there is clear and unmistakable evidence that the Veteran's right leg disability preexisted service. An October 1948 letter from the National Foundation for Infantile Paralysis noted the Veteran's diagnosis of infantile paralysis. Service treatment records reflect that the Veteran reported a history of "inability to play sports due to infantile paralysis in spine and legs." He also endorsed having or had in the past, swollen or painful joints, bone, joint or other deformity, cramps in his legs, and paralysis. See July 1969 Report of Medical History. The Veteran underwent a medical board review in December 1969 during service. His chief complaint was an inability to walk or run for long periods. It was noted that he had a history of childhood poliomyelitis that affected his back and legs, and prior to his service, he received 10 years of physical therapy from a specialist. VA treatment records in July 2010 noted right lower extremity weakness for approximately 40 years. As such, the Board finds that there is clear and unmistakable evidence that the Veteran's right leg disability 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). Service treatment records indicate that in November 1969 the Veteran complained of weak leg muscles. No atrophy was noted at the time, and he was advised to try for a profile. The Veteran complained of his legs giving him problems on multiple occasions during service, for example, November 7th, 19th, 21st, and December 16th of 1969. The December 1969 medical board review indicates that the Veteran's chief complaint was an inability to walk or run for long periods of time. During the December 2020 VA examination, the Veteran reported experiencing right knee and lower leg discomfort with periodic swelling for the last 50 years and that he had difficulty advancing in infantry training due to his leg. Based on this evidence, the Board finds that the most competent and credible evidence of record illustrates that there is not clear and unmistakable evidence that the disability was not aggravated by military service. Therefore, the presumption of soundness has not been rebutted. When VA fails to carry its burden as to either preexistence or lack of aggravation, whether and to what extent the Veteran is entitled to compensation for the injury would be determined upon the assumption that the injury was incurred during service. It does not necessarily follow, however, that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The Veteran must still demonstrate a current disability and a nexus between the current disability and the injury or disease in service. Horn, 25 Vet. App. 231, 233. Regarding current disability, in February 2014, S.P. (MD), the Veteran's private provider, noted a history of post-polio syndrome and some evidence of weakness in both legs. Additionally, the December 2020 VA examiner diagnosed the Veteran with degenerative joint disease of the right knee with medial tibial stress syndrome of the right lower extremity; it was noted that the Veteran reported experiencing right knee and right lower leg discomfort with periodic swelling for the past 50 years and that he was medically boarded out of the service due to difficulties with advanced infantry training. As such, the evidence indicates the Veteran has a current diagnosis. Regarding nexus, the Veteran submitted a private medical opinion, dated October 2013. The physician stated that due to polio the Veteran had a chronic weakened condition of the legs and back. He developed pronounced weakness and numbness of the right leg over the years. The physician opined that there was a high probability that all or some of his problems were attributable to his childhood polio and time in the Army, which exacerbated his condition. The physician explained that the weather was cold while the Veteran was in service making physical activities more painful. The physician noted that the Veteran was placed in advanced infantry training and his short stint in the Army was deleterious to his physical health and well-being, from which he never fully recovered. His desire to excel in every aspect of his training exacerbated his polio and negated much of the progress he made over the years to overcome the effects of the disease. Concluding, the physician opined that such a concentrated amount of strenuous exercise, especially marching and running in cold weather, could not help but damage a body suffering from the effect of poliomyelitis. In summary, the Board finds that as no right leg disability was noted upon entry into service, the Veteran is presumed sound upon entry with respect to the right leg. Given the complaints of leg weakness and pain documented in the Veteran's service treatment records and the Veteran's competent and credible testimony as to experiencing leg symptoms in service, coupled with the October 2013 private physician's opinion, the Board finds VA has not met the onerous burden of showing that the Veteran's right leg disability both clearly and unmistakably pre-existed service and was not aggravated during service. Accordingly, after resolving any reasonable benefit of the doubt in favor of the Veteran, the Board finds that entitlement to service connection for a right leg disability is granted. REASONS FOR REMAND 2. Entitlement to service connection for a cervical spine disability, claimed as neck pain. The Veteran has a current diagnosis of diagnosed degenerative facet joint disease of the cervical spine. As discussed previously, the Veteran has a history of polio prior to his time in service. Service treatment records reflect that the Veteran reported a history of "inability to play sports due to infantile paralysis in spine and legs." He also endorsed having or had in the past, swollen or painful joints, bone, joint or other deformity, cramps in his legs, and paralysis. See July 1969 Report of Medical History. In the physician's summary section, the examiner noted polio in 1948, leg cramps, and various other ailments, but nothing specifically pertaining to the neck or cervical spine. On the following entrance examination, the examiner checked off that there was an abnormality for the "spine, other musculoskeletal" category #38, with a description that is partially illegible, and appears to state the Veteran complained of pain. Importantly, however, under the summary of defects section there are no specific defects noted, but the examiner wrote in, "#38 orthopedic accepted." The Veteran was then placed in physical category "x" indicating that he was allowed to continue in the military service with a disease, injury, or medical defect that is below medical retention standards, pursuant to a waiver of an unfit finding and continued on active duty. See Department of the Army Pamphlet 40-502, Medical Readiness Procedures. Under the physical profile section, the Veteran was assigned all 1's for each category, including the "P" category for physical capacity, indicating good muscular development with ability to perform maximum effort for indefinite periods, and the "U" category for upper extremities (which includes the strength, range of motion, and general efficiency of the upper arms, shoulder girdle, upper back, and cervical and thoracic vertebrae), indicating no limitation of motion and no demonstrable abnormality. The Veteran underwent a medical board review in December 1969. His chief complaint was an inability to walk or run for long periods. He had a history of childhood poliomyelitis that affected his back and legs. Prior to his service, he received 10 years of physical therapy from a specialist. Physical examination in 1969 revealed pes cavus deformity bilaterally with contracture of multiple tendons. He had very symptomatic pain in his feet secondary to sequela of polio. The medical board recommended separation from service. His December 1969 separation examination noted old poliomyelitis, with secondary pes cavus. All items in the clinical evaluation section were otherwise marked normal. In April 2010, R.B. (DC), the Veteran's private provider, reported treating him since June of 1984. The Veteran complained of neck, back, leg, and foot pain. He had neck pain with his activities of daily living despite various forms of treatment over the years. In October 2013, R.B. (DC) opined due to polio the Veteran had a chronic weakened condition of the legs and back. He developed pronounced weakness and numbness of the right leg over the years as well as an ankle condition requiring surgery. There was a high probability that all or some of his problems were attributable to his childhood polio and time in the Army, which exacerbated his condition. The weather was cold while he was in service making physical activities more painful. The Veteran was placed in advanced infantry training. R.B. found the Veteran's short stint in the Army was deleterious to his physical health and well-being from which he never fully recovered. His desire to excel in every aspect of his training exacerbated his polio and negated much of the progress he made over the years to overcome the effects of the disease. Such a concentrated amount of strenuous exercise especially marching and running in cold weather could not help but damage a body suffering from the effect of poliomyelitis. In December 2019, a VA examiner found no diagnosed cervical spine condition. The December 2019 examiner opined the Veteran's claimed neck condition was less likely than not incurred in or caused by his service; he did not have a diagnosed neck condition and had not been seen by a primary care physician for neck pain. The examiner referenced an x-ray which was unavailable for review from a chiropractor in Switzerland. There was no other imaging available to support finding a diagnosed neck condition. In November 2020, the Board remanded the Veteran's claims. The Board found the December 2019 VA opinion did not substantially comply with the January 2019 remand instructions. The examiner failed to address the Veteran's preexisting polio or whether any increase in the claimed disability was clearly and unmistakably due to the natural progression of the disease. In December 2020, the veteran underwent another VA examination. The examiner diagnosed degenerative facet joint disease of the cervical spine. The Veteran reported chronic neck pain since his discharge from service. He had a history of childhood polio and had difficulty performing the advanced training activities. The December 2020 examiner opined the Veteran's neck condition which clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury, or illness. A review of the available records showed no specific complaints, evaluation, or treatment of a neck condition in service. It appeared more likely that the Veteran's cervical spine condition was related to post military physical activities to include progression with apparent age. The Board finds a remand is necessary to obtain an addendum opinion. 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. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Importantly, 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); see also 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). History of pre-service existence of a disease does not constitute a notation of such condition. See id. at 240 (holding that "asthma" was not noted where, although the Veteran checked a box indicating that he had a history of the disease, a clinical evaluation detected no abnormalities of the lungs). The Veteran's entrance examination does not explicitly identify that the cervical spine was abnormal prior to entering service. As such, the Board finds that the Veteran is entitled to the presumption of soundness for this disability. Therefore, if the Board is to find that the presumption of soundness is rebutted and that the Veteran's cervical spine disorder pre-existed service, it must find (1) that clear and unmistakable evidence shows that this disorder pre-existed service; and (2) that clear and unmistakable evidence shows the disorder was not aggravated by service. The Board notes that the November 2020 remand directed the RO to obtain medical opinions from a physician with expertise in polio related disorders. Although medical opinions were obtained, there is no indication that the physician had any expertise in polio related disorders. Additionally, the Board finds the current medical evidence is still unclear as to whether the Veteran's cervical spine disorder clearly and unmistakably pre-existed service. Given the complex medical nature of the medical question at issue and controversy, the Board has determined that in accordance with 38 U.S.C. § 5109, a remand is required for VA to request an advisory medical opinion from an independent medical expert. While this case is in remand status, the Veteran's representative is also free to obtain additional medical evidence/opinion, if he so desires. The matters are REMANDED for the following action: 1. The AMO should follow its established procedures for requesting an advisory opinion furnished by a medical school, university, clinic, or medical institution (i.e., an independent medical expert who is not an employee of the Department). 2. Pursuant to 38 U.S.C. § 5109, the file should be sent to a neurologist to offer an independent medical opinion regarding the Veteran's claimed cervical spine disability. The entire claims file, including a copy of this remand, must be reviewed by the neurologist. After review of the following, please answer the following: a) The examiner should determine whether it is clear and unmistakable (undebatable) that the Veteran entered service with a cervical spine disorder. a. If the Veteran's cervical spine disorder clearly and unmistakably pre-existed service, the examiner should determine whether it is clear and unmistakable that his cervical spine disorder WAS NOT aggravated beyond the natural progress of the disorder by his service. b. If the Veteran's cervical spine disorder DID NOT clearly and unmistakably pre-exist service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or greater probability) that any current cervical spine disorder is related to his time in service OR is proximately due to or aggravated (beyond a natural progression) by his service-connected lumbar spine disability. *The examiner is asked to specifically consider and discuss: i) the October 1948 letter from the National Foundation for Infantile Paralysis noting the Veteran's diagnosis of infantile paralysis; ii) service treatment records that reflect the Veteran reported a history of inability to play sports due to infantile paralysis in spine and legs; iii) the July 1969 entrance examination noting spine abnormalities but also "#38 orthopedic accepted," and under the physical profile section, the Veteran was assigned all 1's for each category, including the "P" category for physical capacity, indicating good muscular development with ability to perform maximum effort for indefinite periods, and the "U" category for upper extremities (which includes the strength, range of motion, and general efficiency of the upper arms, shoulder girdle, upper back, and cervical and thoracic vertebrae), indicating no limitation of motion and no demonstrable abnormality; iv) the October 2013 private opinion that there was a high probability that the Veteran's problems were attributable to his childhood polio and time in the Army, which exacerbated his condition. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history and the relevant medical science as applicable to this case, which may reasonably explain the medical guidance in the study of this case. All opinions must be supported by a clear rationale, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. L. ANDERSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.