Citation Nr: 21040956 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 12-10 632 DATE: July 7, 2021 ORDER Entitlement to service connection for a lumbar spine disorder, to include degenerative disc disease, is granted. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, the Veteran's preexisting lumbar spine disorder was aggravated by active military service. CONCLUSION OF LAW The criteria to establish service connection for a lumbar spine disorder have been met. 38 U.S.C. §§ 1101, 1110, 1111, 1131, 1153, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter previously came before the Board in November 2018, at which time the Board denied the claim. In August 2019, the United States Courts of Appeals for Veterans Claims (CAVC) granted a joint motion for remand, vacating the Board decision and remanding for further consideration. The Board again denied the claim in Marcy 2020, and in March 20201, the CAVC again granted a JMR vacating the most recent decision and remanding it for further appellate review. The appeal is now returned to the Board. The Veteran testified before a Veteran's Law Judge at a hearing on this matter in December 2017. A transcript of that hearing is of record. In March 2021, the Veteran was notified that the Veterans Law Judge who held his hearing is no longer employed at the Board and offered the opportunity to appear for a new hearing. The Veteran did not respond. 1. Entitlement to service connection for a lumbar spine disorder The Veteran asserts that he is entitled to service connection for his lumbar spine disorder because it is related to active duty service, to include permanent aggravation. Service connection may be established for a disability resulting from diseases or injuries which are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). If a chronic disease, is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309 (a). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology under 38 C.F.R. § 3.303 (b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). [E]very 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 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). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). In order to support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity; 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 (Fed. Cir. 2002) As an initial matter, the evidence, including the Veteran's own statements, reflect that he had a lumbar spine disorder prior to entrance into active duty, a fact which has been conceded by the Board in both prior decisions. Specifically, the Veteran's November 1965 entrance examination reports a lumbar spine disability, noting that he injured his back lifting weights three years prior to enlistment. Therefore, the presumption of soundness does not attach to the Veteran's lumbar spine disorder. See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Upon review the Board concludes that the evidence is in relative equipoise as to whether the Veteran's preexisting back condition, now diagnosed as degenerative disc disease, was aggravated beyond natural progression by service. Specifically, the service treatment records in conjunction with the Veteran's credible statements indicate that the Veteran experienced back pain during service and sought treatment on numerous occasions for his low back indicating ongoing and worsening symptoms until the final year of active service. In arriving at this conclusion, the Board acknowledges that the negative evidence includes negative August 2010 and December 2014 VA examiners' opinions that state that the Veteran's disorder was not aggravated by active duty service. However, these opinions are less probative as they were rendered by medical professionals that examined the Veteran one time, not over the course of many years like his treating physician. Likewise, both relied upon the premise that the Veteran's condition had resolved by the time of separation, however they do not give adequate consideration to the Veteran's competent and credible testimony regarding symptoms between his separation and 1986 when he again sought medical attention for his low back pain. (Continued on the next page) On the contrary, the Board observes that the Veteran sought treatment for his increasing back pain throughout his early years of active service, and although he asserted that it had improved by the time of separation, has testified that it continued shortly thereafter to the present, Further, the post-service evidence includes an opinion from the Veteran's treating physician that indicate his lumbar spine disorder worsened and was aggravated during service. This opinion was supported by a review detailed of his complete medical history and claims file, to include the 2010 and 2014 VA examination and opinions. Therefore, the Board concludes that the weight of the evidence supports service connection for the Veteran's lumbar spine disorder, or at the very least, the evidence is in equipoise. When the evidence is in relative equipoise, the claimant prevails and service connection should be granted. M. Pryce Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Billinger, 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.