Citation Nr: 18124063
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 14-41 037
DATE:	August 3, 2018
Service connection for a back disability is denied.
1.  The Veteran’s January 1970 entrance examination with a May 1970 addendum found his back to be normal, although his assertions of ongoing back symptomatology were noted. 
2.  There is clear and unmistakable evidence that the Veteran’s back disability existed prior to service, and there is also clear and unmistakable evidence that it was not aggravated during service; the presumption of soundness is rebutted. 
The criteria for entitlement to service connection for a back disability have not been met.  38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.304. 
The Veteran served on active duty from May 1970 to October 1972.  The Veteran withdrew his September 2014 request for a hearing before a Veterans Law Judge in statements dated May 2016 and August 2016. 
Entitlement to service connection for a back disability.
The Veteran contends that he had a chronic back disability when he entered active service and that this disability was aggravated during service.  Alternatively, 
he notes that his entrance examination determined that his back was normal, and he contends that a chronic back disability was incurred during service. 
Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires (1) medical evidence of a current disability; 
(2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303.  Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).
In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 
The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional."  Jandreau v. Nicholson, 492 F.3d 1372, 1377(Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").
A veteran is presumed 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; 38 C.F.R. § 3.304(b).  Only such conditions as are recorded on a veteran’s examination report are to be considered as “noted.”  38 C.F.R. § 3.304(b).  When a pre-existing condition is not noted on a veteran’s entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran’s disability was both pre-existing and not aggravated by service.  See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).  As further explained in Horn v. Shinseki:
Once the presumption of soundness applies, the burden of proof remains with the Secretary on both the preexistence and the aggravation prong; it never shifts back to the claimant.  In particular, even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness . . . the burden is not on the claimant to show that his disability increased in severity; rather, it is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 
25 Vet. App. 231, 235 (2012).
"The Federal Circuit has made clear that the Secretary may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or 
(2) any increase in disability was due to the natural progression of the condition."  Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096).  This burden must be met by "affirmative evidence" demonstrating that there was no aggravation.  See Horn, 25 Vet. App. at 235.  The burden is not met by finding "that the record contains insufficient evidence of aggravation."  See id.
The presumptions of soundness and aggravation pertain to the second requirement of the service-connection analysis such that if the presumption attaches and is not rebutted by the Secretary, then a disease or injury that manifests in service is considered to have been aggravated by service, and the second requirement of service connection is satisfied.  See Gilbert v. Shinseki, 26 Vet. App. 48, 52, 55 (2012).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107(b).
The Veteran was afforded a VA back examination in January 2013.  The diagnosis was mild degenerative joint disease of the lumbar spine.  This competent evidence meets the first requirement for evidence of a current diagnosis of the claimed disability.  
A review of the service treatment records shows that the January 1970 Report of Medical Examination at entrance into service found that the Veteran’s spine was normal.  However, the examiner noted that the Veteran had presented a letter pertaining to past trouble with his neck and back.  The report was stamped with a notation that states in relevant part “Registrant is determined acceptable.  However, he claims ailments not verified by the Medical Officer and has been advised to present documentary evidence at his own expense to substantiate claims to his selective service local board prior to his induction.”  An addition to this report dated May 1970 states the Veteran has a history of a 1969 back injury.  No symptoms or sequelae were noted.  The cervical spine and lumbar spine were negative according to the May 1970 letter.  
A January 1970 Report of Medical History shows the Veteran described his health as fair, with the notation of “back trouble”.  He checked “no” when asked if he had a history of back trouble of any kind.  However, the Veteran noted a back and neck injury to the question if he had consulted or been treated by clinics, physicians, healers, or other practitioners in the past 5 years.  The recording medical doctor noted the Veteran to have sustained cervical strain and lumbar strain in 1967 and to claim residuals.  
Given that the January 1970 entrance examination as well as a May 1970 follow-up conducted prior to the Veteran’s induction determined the Veteran’s back to be normal, the Board finds that the Veteran is presumed to have been sound upon entering service.  38 C.F.R. § 3.304(b) (“Only such conditions as are recorded in examination reports are to be considered as noted.”).  This presumption can only be rebutted by clear and unmistakable evidence of pre-existence and clear and unmistakable evidence that it was not aggravated.  The Board will review the remaining evidence to determine whether this presumption is rebutted. 
The remainder of the service treatment records are negative for any injury or complaints pertaining specifically to the back or back pain.  He was seen on one occasion in July 1970 after he awoke with complaints of headache and backache.  No injury was reported, and physical examination resulted in an impression of rule out meningitis or a possible reaction to smallpox vaccination.  It appears that a spinal tap was one of the tests scheduled to rule out the meningitis or determine the cause of his complaints.  This record specifically states that the Veteran did not have any rigid back pain on flexion.  The October 1972 discharge examination found that the spine was normal.  A Report of Medical History at discharge is not found in the record.  
The first post-service medical evidence of a back disability is a September 1997 private medical record that shows the Veteran was diagnosed with lumbosacral strain.  The earliest VA records to show back pain is a November 2010 consultation.  The Veteran reported back pain for many years with no inciting event.  
The Veteran has submitted several statements that describe his duties about ship and argue that these were hard on his back.  A May 2012 statement adds that he had an unsuccessful spinal tap around January 1971.  The Board notes that the spinal tap was actually in July 1970 as a follow-up to his possible meningitis.  
A December 2012 statement says that he has suffered from back pain throughout his military service until today, but provides no further specifics regarding his history.  An August 2016 statement also describes the military duties the Veteran states would result in back pain and adds that he has continued to have pain since service, but does not provide any more specificity to the post-service history. 
The January 2013 VA examiner reviewed the Veteran’s claims file.  The Veteran gave a history of onset of a back disability in military service without any particular injury.  The condition had continued to worsen.  The Veteran noted one workers compensation injury in 1997 which resolved.  After the examination, interview, and file review, she opined that the Veteran’s back disability clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness.  The rationale was that there was no evidence of a chronic lumbar spine condition in military service or at exist from the military.  
Based on this competent medical evidence and other relevant evidence, the Board finds that service connection for the Veteran’s back disability is not warranted.  
The service treatment records include ample evidence that the Veteran had a pre-existing back disability upon entering service.  Indeed, while the entrance examination found the spine to be normal, it also recorded the Veteran’s assertions that he had a back ailment that would become symptomatic.  The January 2013 
VA examiner opined that there is clear and unmistakable evidence the back disability existed prior to service.  In the absence of any other medical opinion to the contrary, and noting the Veteran’s own contentions stating he had a pre-existing disability, the Board finds the foregoing evidence supports a finding that the back injury clearly and unmistakable pre-existed service.    
However, the examiner also opined that there was clear and unmistakable evidence that this pre-existing back disability was not aggravated during service.  She provided only a brief rationale but the Board believes it to be persuasive.  She said that there was no evidence of a chronic lumbar spine condition in service or at exist from the military.  In this regard, the Veteran’s service treatment records show complaints for many things, but the only complaint of back pain was actually neck pain and headaches because of a suspected infection or reaction to a vaccination.  The record states that he did not have any back pain at that time.  The Veteran does not have a current disability of the neck, and there is no record of complaints of treatment of low back pain.  He contends that he frequently experienced back pain and was provided with pain medication, but the examiner notes there was no such evidence of a lumbar spine disability in the record.  The Board emphasizes that this conclusion is not based on a lack of evidence of aggravation.  It is instead based on the lack of evidence of any back disability whatsoever after the clinical entrance examination, and very importantly the finding of a normal spine on the clinical discharge examination.  A finding of normal precludes the possibility of aggravation, as aggravation suggests that there must already be some form of current disability.  It follows that any preexisting disability was so mild that it could not even be detected on examination, which is exactly the condition of the back disability on the entrance examination.  Based on such, the Board draws the logical conclusion that there was no increase in disability by active service.  
The Board adds that there is no competent evidence to the contrary.  

In sum, there is clear and unmistakable evidence that a back disability (not noted on entrance examination) pre-existed service and clear and unmistakable evidence that it was not aggravated by service.  As the presumption of soundness is rebutted, the second element of service connection is not met, and entitlement to service connection is not warranted.  38 U.S.C. §§ 1110, 1111; 38 C.F.R. §§ 3.303, 3.304(b).  
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. L. Prichard, Counsel 

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