Citation Nr: 22013243 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-44 483 DATE: March 9, 2022 ORDER Entitlement to service connection for degenerative arthritis and spinal stenosis of the lumbar spine is granted. FINDING OF FACT It is not shown by clear and unmistakable evidence that a low back disability both pre-existed service and was not aggravated during service. CONCLUSION OF LAW The criteria for service connection for degenerative arthritis and spinal stenosis of the lumbar spine have been met. 38 U.S.C. §§ 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from February 1969 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded for additional development in November 2018. A November 2020 Board decision denied entitlement to service connection for a back disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In October 2021, the Court granted a Joint Motion, which vacated the November 2020 Board decision and remanded the claim for service connection for a back disability to the Board for action consistent with the Joint Motion. The Joint Motion indicated that the Veteran was not challenging the part of the Board's decision that denied him entitlement to an initial evaluation in excess of 20 percent for DM2, from November 30, 2009, to September 3, 2014, and an increased evaluation in excess of 40 percent for DM2 from September 4, 2014, to June 28, 2015. Entitlement to service connection for degenerative arthritis and spinal stenosis of the lumbar spine The Veteran contends that a pre-existing back disability was aggravated during active service. In a May 2013 statement, the Veteran indicated that he sustained back injuries in an automobile accident prior to active duty and that his back disability was aggravated in service. He stated that the demands of basic training, his occupation as a teletype operator which necessitated prolonged sitting, and duty overseas were contributing factors. He noted that he received treatment for a back condition in service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303 (a). A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b). VA's General Counsel has held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The Board notes that the Court has held that the presumption of aggravation under 38 U.S.C. § 1153 only applies in cases where a preexisting disability was noted at the service entrance examination. See Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). Otherwise, the matter goes to the analysis of the presumption of soundness. The appellant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see Horn, 25 Vet. App. at 234-35 (holding that the burden of proof in presumption of soundness cases rests with VA); see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A pre-induction examination dated in June 1968 did not note any back disabilities. The record does not include an enlistment examination at the time of his entrance into service in February 1969. As no preexisting back disabilities were noted at enlistment, the burden is on VA to show by clear and unmistakable evidence that at back disability both pre-existed service and was not aggravated by service. With regard to the first prong, there is clear and unmistakable evidence that a back disability pre-existed service. An April 1970 entry in the service treatment record noted that the Veteran reported a history of a car accident in which he injured his back with prior treatment for back pain. A November 2019 VA examination noted that a June 1968 entry in the service treatment records showed a history of an auto accident prior to active duty. There was a notation in June 1970 of chronic low back pain and an auto accident while civilian. The second prong required to rebut the presumption of soundness is clear and unmistakable evidence that the pre-existing disability was not aggravated in service. 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. Horn, 25 Vet. App. 231. In other words, the "burden is not on the claimant to show that his disability increased in severity." Id. 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." Id. This burden must be met by "affirmative evidence" demonstrating that there was no aggravation. Id. 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). In this case, it is not shown by affirmative evidence that the Veteran's low back disability was not aggravated by service. The Veteran sought treatment for back pain during service. A July 1969 entry showed a complaint of back pain that was worse at night when lying down. In April 1970, the Veteran complained of difficulty sleeping due to back pain. A May 1970 entry in the service treatment record showed that he reported that his back pain had increased, and he requested a refill of pain medication. A June 1970 entry noted increased back pain since May 1970. Thus, the Board finds the burden necessary to rebut the presumption of soundness has not been satisfied in this case as the second prong is not met. See Wagner, 370 F.3d 1089 at 1094-1096 (in cases where the presumption of soundness cannot be rebutted, the claim is one based on service incurrence). Hence, his low back disability is deemed to have been incurred during service. See Horn, 25 Vet. App. at 236 (citing Wagner at 1094). The Veteran has a current diagnosis of degenerative arthritis and stenosis of the lumbar spine. Because there is a current diagnosis and an in-service event, the only remaining question is whether the Veteran's current low back disability is related to service. See Wagner, 370 F.3d 1089 at 1094. In October 2012, a private physician opined that the Veteran's pre-existing degenerative back condition may very well have been aggravated in the military. She noted that the vigorous training, prolonged periods of standing, and prolonged periods of sitting are all factors that can contribute to aggravation and/or exacerbation of a pre-existing condition. The physician explained that, "Prolonged sitting increases the pressure within the herniated disk, which can lead to increased low back pain radiating into the legs. Continued pressure on the spine can lead to chronic symptoms that require medications, rehabilitation, spinal injections, and even surgery to alleviate symptoms." (Continued on the next page) A November 2019 VA medical opinion found that the Veteran's diagnosed degenerative arthritis and spinal stenosis of the lumbar spine clearly and unmistakably pre-existed service and clearly and unmistakably was not aggravated in service. The examiner's rationale was that there was more than a one-year time span after service of a lack of complaints about the back. The November 2019 medical opinion did not consider a February 1971 VA examination noting a complaint of backache pain in the lower portion of the back. Therefore, the basis of the VA examiner's negative opinion is inaccurate, as the Veteran reported back pain within a year of separation from service. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinion based on inaccurate factual premise may properly be rejected as non-probative). The Veteran has a current diagnosis of degenerative arthritis and spinal stenosis. The in-service incurrence element is established by virtue of application of the presumption of soundness, and competent medical evidence establishes that the Veteran's lumbar spine disability is related to service. The Board finds that service connection is warranted for degenerative arthritis and spinal stenosis of the lumbar spine. J. Nichols Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.