Citation Nr: 22013901 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-06 063 DATE: March 10, 2022 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Navy from April 1974 to March 1978, including 21 months of foreign or sea service. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in May 2021 and the Board remanded the matter for additional development. Of note, the Veteran filed to reopen to reopen claims seeking entitlement to service connection for a back disability, cervical spine disability, and bilateral shoulder disability. At his March 2021 Board hearing, the Veteran's representative reported the RO combined the claims for a back disability, cervical spine disability, and bilateral shoulder disability in the May 2017 rating decision. The Veteran's representative then asked at the Board hearing that the disabilities be separated, and the Veteran undergo separate VA examinations for the disabilities. The Board notes that the May 2017 rating decision reopened the claim for the back disability but sent the Veteran correspondence in May 2017 discussing the other claims the Veteran sought to reopen. The May 2017 correspondence noted the appeal period for the claims seeking service connection for a cervical spine disability, bilateral shoulder and arm disability had expired and to reopen those claims, new and material evidence was required. The correspondence further advised the claims were previously denied as the evidence of record did not show the conditions occurred in or were aggravated by service and therefore, the evidence must be new and relate to this fact to reopen the claims. As such, the RO did not combine the claim for cervical spine disability and bilateral shoulder disability with the claim for a back disability, as was the Veteran's contention through his representative. The claims were never reopened and are therefore not before the Board. The only issue the Board has jurisdiction over is the appeal seeking entitlement ot service connection for a back disability. The Veteran contends his back disability is related to his active naval service. He testified at this March 2021 hearing that while in-service, he was injured in a bicycle accident and he had continuous strain in-service from falling down ladders and due to the demands of working on a ship. At his Board hearing, the Veteran's representative noted the Veteran's back was injured prior to his entrance to service and that the Veteran noted he had a sore back upon entrance. 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 examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and clearly and unmistakably was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). A history of conditions existing prior to service recorded at the time of the entrance examination does not constitute a notation of such conditions for the purpose of establishing whether the Veteran was of sound condition at enlistment. 38 C.F.R. § 3.304 (b)(1). In this case, there is a question as to whether the Veteran's back disability preexisted his military service. At the onset, the Board acknowledges that the Veteran reported a sore back at his entry to service. However, the Veteran's back was noted to be clinically normal upon entry. Furthermore, when he exited service, the examination report states that the Veteran "reports low back strain" with subsequent intermittent pain, but at separation he was asymptomatic. Hence, a back disability was not "recorded in an examination report" at entry within the meaning of § 3.304(b). Therefore, with respect to a back disability, the presumption of soundness attaches. See 38 C.F.R. § 3.304(b); see also Quirin v. Shinseki, 22 Vet. App. 390, n.5 (2009) (citing Lee v. Brown, 10 Vet. App. 336, 339 (1997). As 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). To rebut this presumption of soundness for conditions not noted at entrance into service, VA must show by clear and unmistakable evidence both that the disability existed prior to service and that it was not aggravated by service or that any worsening of the disability was not above and beyond the condition's natural progression. See 38 C.F.R. § 3.304(b) (2017); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-2003 (July 16, 2003). Here, the Veteran's STR reflect multiple entries that note the Veteran's x-rays in service reflect he had an old compression fracture. In-service and documented in the STR, the Veteran reported lower back pain and STR confirm old compression fracture and the pain is still back in August 1974. In June 1976 STR, his records reflect after heavy work, he had another episode of pain in his back. After a thorough review of the record, the Board finds an additional remand is necessary. Given the documentation from the Veteran's service treatment records, and his most recent testimony, the Board finds that a VA examination is necessary to address whether the Veteran's back disability was aggravated by service or that any worsening of the disability was not above and beyond the condition's natural progression. While the Veteran did undergo a VA examination in May 2021 for his back disability, the Board finds a remand is necessary to evaluate the back disability on whether it was aggravated by service or that any worsening of the disability was not above and beyond the condition's natural progression. In sum, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of his back disability. The examiner is asked to address the following: a) The examiner is to state whether there is clear and unmistakable evidence that the Veteran had a back disability prior to his active service. In answering this question, the examiner must address the Veteran's report of a sore back at entry, as well as the radiographic evidence of compression fractures during service. b) If there is clear and unmistakable evidence that the Veteran's back disability preexisted his active service, then did the Veteran's preexisting back disability undergo an increase in severity during service? c) If the answer to b) is yes, then is there clear and unmistakable evidence of record demonstrating that any back disability was not aggravated by service or that any worsening of the disability was not above and beyond the condition's natural progression. The Board notes that a back disability was not noted at the time of enlistment, and as such, the presumption of soundness does attach in this case and can only be overcome by a showing clear and unmistakable evidence that the disability existed prior to service and that it was not aggravated by service or that any worsening of the disability was not above and beyond the condition's natural progression. The examiner is advised that the phrase "clear and unmistakable" is defined as obvious or manifest. In doing so, the examiner must consider and discuss the Veteran's service treatment records that discuss his compression fracture and the increased back pain in-service and the low back strain in his separation examination. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Mouzakis, 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.