Citation Nr: 22012709 Decision Date: 03/05/22 Archive Date: 03/05/22 DOCKET NO. 18-44 084 DATE: March 5, 2022 ORDER Entitlement to service connection for degenerative lumbar spinal stenosis and lumbar degenerative disc disease is granted. Entitlement to service connection for scoliosis is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, the Veteran's degenerative lumbar spinal stenosis and lumbar degenerative disc disease are causally or etiologically due to his time in service. 2. The Veteran's scoliosis clearly and unmistakably pre-existed service and was not aggravated because of service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lumbar degenerative disc disease and degenerative lumbar spinal stenosis are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for scoliosis are not met. 38 U.S.C. §§ 1111, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1984 to February 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for a back disability with lower left extremity radiculopathy, to include scoliosis and degenerative joint disease, claimed as lumbosacral strain. Under the relevant laws and regulations, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). In general, service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and those cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C. § 1111 (presumption of sound condition). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C. § 1111. 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 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). However, the disease need not be symptomatic at the time of the evaluation, so long as a diagnosis is provided. See Verdon v. Brown, 8 Vet. App. 529, 530 (1996) (holding that "bunions" were noted at induction examination where orthopedic examiner diagnosed "bunions," despite also stating "no problem [with] feet."). First, the Board notes the Veteran has current diagnoses of several lumbar spine disorders, including degenerative lumbar spinal stenosis, lumbar degenerative disc disease, and scoliosis. See January 2018 VA examination. As such, Shedden element (1), current diagnosis, is met. The April 1984 enlistment physical examination did not note any lumbar spine abnormalities. A January 1985 service medical record indicates the Veteran had mild lumbar scoliosis. X-rays demonstrated scoliosis of the lumbar spine. A February 1985 service record indicates the Veteran was referred to orthopedics because of back pain and scoliosis. August 1985 service records noted the Veteran complained of lower back pain that radiates through the chest and indicated paraspinal muscle spasms. As such, the Board finds that Shedden element (2) has been satisfied. Regarding element (3), nexus, the Board finds the evidence is at least in equipoise that the Veteran has a current lumbar spine disability that is due to his military service. A VA medical opinion was obtained in January 2018. The examiner opined that although there is a record of treatment for back pain and scoliosis when in military service, no permanent residual or chronic disability subject to service connection is shown by the service medical records. Scoliosis is a developmental condition and there is no evidence of aggravation in service. In a January 2018 private medical record, the provider opined that the Veteran's current lumbar degenerative disc disease/low back pain is directly related to injuries incurred in service or aggravated by this service-connected condition. The provider indicated that he reviewed the treatment records and the Veteran's service medical records from 1984 to 1987. A September 2018 private medical opinion indicates the Veteran relates a history of lower back issues since his military service from July 1984 to February 1988. There are records of the patient being treated for lower back pain while in the military. The records reveal that he has scoliosis. On examination, the provider found the Veteran's scoliosis to be mild. There is no more preponderance of lower back pain in patients with scoliosis if they have less than a 30 percent curve. The provider opined that the Veteran's current symptoms are not in any way related to the mild scoliosis he has. The provider reasoned that the Veteran's lower back issues began while in the military and he has had intermittent flare-ups of back pain since. In a September 2021 private medical record, the provider opined that the Veteran's current lumbar degenerative disc disease/low back pain are directly correlated to his time in service. The provider reasoned that the Veteran's mild scoliosis is not the etiology of his chronic back pain. The chronic lumbar pain is due to degenerative lumbar spinal stenosis. The provider indicated he reviewed the service records and all medical records and is aware that the Veteran was having issues with his back while in service. As such, based on the January 2018, September 2018, and September 2021 medical opinions, and resolving all reasonable doubt in his favor, the Board finds that the Veteran's degenerative lumbar spinal stenosis and lumbar degenerative disc disease are due to his documented complaints in service. The evidence, however, indicates that the Veteran's diagnosed scoliosis pre-existed service and was not aggravated therein. As noted in a January 2018 VA examination, a 1985 x-ray demonstrated scoliosis, and the examiner opined that there was no evidence that the Veteran's scoliosis was aggravated during service as medical evidence does not indicate clinically significant and/or readily apparent scoliosis of the spine. In conclusion, the evidence indicates the Veteran's scoliosis pre-existed service and was not aggravated therein; however, his lumbar degenerative disc disease and spinal stenosis are causally or etiologically due to his military service. Service connection for scoliosis is denied. Service connection for lumbar degenerative disc disease and spinal stenosis is granted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Edwin B. Esmenda, 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.