Citation Nr: 21032627 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 15-21 067 DATE: May 27, 2021 ORDER Entitlement to service connection for a back disability is granted. FINDING OF FACT The Veteran's back disability manifested during active service and has continued ever since; the record does not demonstrate clear and unmistakable evidence that the disability pre-existed service. CONCLUSION OF LAW The criteria for service connection for a back disability have been met. 38 U.S.C. §§ 1131, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.304(b)(1) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to January 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans' Affairs (VA) Regional Office (RO). In July 2018, the Board denied the claim for entitlement to service connection for a low back disability as well as the claim for a bilateral hearing loss disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court issued a memorandum decision, affirming the Board's July 2018 decision denying service connection for a bilateral hearing loss disability, but setting aside the Board's decision denying service connection for a back disability. See No. 18-5360, Ct. App. Vet. Cl., January 16, 2020. The Court held that the Board failed to properly apply the provisions of 38 C.F.R. § 3.304(b)(1) concerning the purported preexistence of the Veteran's claimed back disability and the presumption of soundness. Upon return of the case to the Board, the matter was remanded to the RO for further development, to include obtaining a VA medical opinion. The issue of entitlement to service connection for a back disability has now been returned to the Board for further appellate action. Service Connection Back Disability The Veteran has contended that his back disability is related to his active duty service. Specifically, the Veteran cites to an in-service incident of injury to his back while carrying a 100 pound sound system through wooded terrain and falling backwards. See April 2014, Notice of Disagreement. The Veteran also maintains that despite reporting back pain during his enlistment examination, that his back disability was not a pre-existing condition and did not manifest until his in-service injury during active service. 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 acquired back disability preexisted his military service as noted above. The Veteran's March 1968 enlistment examination reflects that the Veteran reported recurrent back pain. The medical examination portion of that report details that physical examination of the Veteran's spine and musculature system was found to be normal, with no condition of the back noted other than reiterating that the Veteran had previously sustained a back injury. Aside from the Veteran's own reporting, the Board finds that this report does not notate any defects, infirmities, or disorders of the Veteran's back. Moreover, written statements were provided by both of the Veteran's parents corroborating his assertion that he did not experience back trouble until his time in service. Additionally, as discussed below, the evidence is at least in equipoise as to whether the Veteran's back disability manifested during service. Service treatment records (STRs) confirm that the Veteran reported, and was treated for, back pain on numerous occasions. In June 1969, the Veteran was treated for low-back pain following a motorcycle accident from two months prior. The following month, X-rays of the Veteran's spine were normal. An August 1969 physical reflects reports of recurrent back pain, with episodes of back spasms. Of note, a June 1969 X-ray resulted in an initial diagnosis of spina bifida occulta, a congenital disability of the spine occurring at birth when the spine and spinal cord fail to properly form. However, later examinations and treatment records confirm that the Veteran does not present with this congenital disability and that the June 1969 X-ray findings are an anomaly to the numerous other accounts and medical reports of record. Accordingly, the Board finds that the June 1969 X-ray notations are unreliable. Finally, the Board also notes that the Veteran's separation examination reveals normal findings upon physical examination of the back with no diagnosed disabilities. Nevertheless, the Veteran has reported that he first experienced symptoms associated with a back disability during service and that those symptoms have continued since that time. Not only are these assertions corroborated by the Veteran's service treatment records but also through third party written statements from family members with close observation of the Veteran. Therefore, with respect to a back disability, the presumption of soundness attaches. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches, 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). The most competent and credible evidence of record illustrates that the Veteran's back disability did not clearly and unmistakably preexist service. In January 2021, the Veteran was afforded a VA examination. The examiner was asked to provide an opinion as to whether the Veteran's back disability clearly and unmistakably pre-existed service. The medical response merely restates the fact that the Veteran reported back pain prior to service, but does not make a finding that the present disability clearly and unmistakably pre-existed service. Taking the evidence as a whole, the Board finds that the presumption of soundness has not been rebutted. 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 v. Shinseki, 25 Vet. App. 231, 233 (2012). The Board is mindful that the VA examinations of record provide negative nexus opinions for the Veteran's back disability. However, based upon the Board's current finding that the presumption of soundness attaches to the Veteran's claim and is not rebutted, the VA medical opinions of record are of no probative value in this regard as they are factually incorrect in asserting that the disability pre-existed service based upon the Veteran's enlistment examination reporting. Such conclusion results in a misapplication of the law. 38 C.F.R. § 3.304(b)(1) ("[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."). The VA examination reports do, however, confirm the Veteran's diagnosis of a back disability. Interestingly, the February 2014 examination report notes a date of initial diagnosis of the back disability as 1970. This is consistent with the Veteran's ongoing consistent reporting of first experiencing his back disabilities during training in active service, with a progression and worsening of the symptoms ever since his separation. The record does reflect a reported 1973 work-related back injury incurred by the Veteran. However, the Veteran has credibly asserted and reported to health care providers that he experienced continuous back symptoms since service. The record does not demonstrate a medical opinion which clearly attributes the Veteran's present disabilities to the 1973 injury. Accordingly, the evidence has not established that the injury was an intervening cause of the present disability. This notion, again, is supported by the Veteran's personal account of having experienced his back symptoms beginning in service and continuing since that time, without interruption. The Board is mindful that earlier reported symptoms which lead to a later diagnosis of those same symptoms may, in some cases, establish the necessary medical nexus for service connection. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (establishing that lay evidence may be competent insofar as describing symptoms from an earlier time which support a later diagnosis by a medical professional). Such is the case in the facts presented here, where the Veteran has described his earlier symptoms beginning with the numerous documented accounts in service, which are later diagnosed as a thoracolumbar spine strain, resulting in status post-lumbar back surgery. In sum, the Veteran has competently and credibly reported that his back pain had its onset and has continued since service. While there are VA medical opinions of record against the claim, the Board finds them to be inadequate. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a back disability is warranted. 38 U.S.C. § 5107 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, 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.