Citation Nr: 18160636
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 12-17 834A
DATE:	December 27, 2018
ORDER
Service connection for a back disability is denied.
FINDINGS OF FACT
1. The Veteran’s back disorder was not noted in the enlistment clinical report at the time of the Veteran’s active military service. 
2. There is clear and unmistakable evidence that the Veteran’s back disorder existed prior to his entrance to active duty service.
3. The evidence of record shows that the Veteran’s back disability clearly and unmistakably was not aggravated by his active service. 
CONCLUSION OF LAW
The criteria for service connection for a back disability are not met.  38 U.S.C. §§ 1110, 1111, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran had active service in the United States Army from April 1968 to January 1971. This matter is before the Board of Veterans’ Appeals (Board) on appeal from May 2007 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  
This issue was previously before the Board in February 2015 when it was remanded for a VA examination. The Board remanded the issue again in July 2017 for an addendum opinion. 
In May 2018, the Board determined an advisory expert medical opinion was required from a Veteran’s Health Administration (VHA) orthopedic surgeon to assist in the adjudication of this matter. See 38 C.F.R. § 20.901(a). The opinion was provided in July 2018. In September 2018, the Veteran was furnished a copy of this evidence and afforded 60 days to submit additional evidence or argument. 38 C.F.R. § 20.903. In December 2018, the Veteran’s representative submitted additional arguments, and this matter is appropriately before the Board. 
Service Connection
Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be 
1) 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) causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
Congenital or developmental defects are not “diseases” or “injuries” within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. This is because defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90. 
A veteran is presumed to have been in sound condition when enrolled for service, except for any disease or injury noted at the time of enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before enrollment and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).
When no preexisting medical condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. 38 U.S.C. § 1111; Wagner, 370 F.3d at 1096; Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). If the presumption of soundness applies, the burden then shifts to the Government to rebut the presumption by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 
1 Vet. App. at 227. 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.” Id. 
The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA is required to 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).
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57–58 (1990).
1. Entitlement to service connection for a back disability.
The Veteran asserts service connection for his back disability. 
Initially, the Board notes that the Veteran has a current diagnosis of a back disability, that of degenerative arthritis, to include as noted on the May 2015 
VA examination report.
The Veteran has documented in-service complaints of back trouble and pain, to include in July 1970. However, the Board notes that the Veteran’s records indicate a normal spine at enlistment as well as at his clinical evaluation at his separation examination. His records show that he had complaints of back pain prior to service. 
The Veteran has also submitted private medical treatment records. One such record indicates that the Veteran was treated for back pain in approximately 1961.  His VA treatment records document that his treating neurologist considered his lumbar laminectomy related to his low back injury from 1968.
The Veteran believes that his current back disability is related to service. 
The Board notes that he is competent to report pain throughout the years. However, the Veteran is not competent to opine as to the etiology of his back disability as the issue is medically complex and requires a thorough understanding of the musculoskeletal system. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not been shown to have such expertise via training, education, and/or experience to provide an etiological opinion. As such, the Veteran’s opinion regarding his back disability lacks probative weight.
The Veteran underwent a VA examination in May 2015. At this examination, 
the examiner determined that it was less likely than not that the Veteran’s back condition was related to his active service. Although the examiner reviewed the Veteran’s medical chart, history, and performed an examination, the examiner did not support his conclusion with a rationale.
An additional VA examination was performed in August 2015. The examiner noted that the Veteran had multiple back conditions to include lumbar spondylosis, lumbosacral spine radiculopathy, cervical spine stenosis, and congenital problems prior to service. This VA examiner also concluded that the Veteran’s back conditions were less likely than not incurred in or caused by service. In support, the examiner explained that the Veteran had documented back pain prior to service, and while he complained of the back pain during service, he did not have an injury during his active military service. The Board decision in July 2017 remanded the issue for to address congenital and nonspinal disorders, and to determine if any disability was a defect or congenital disease. 
A further VA addendum was provided in August 2017. The Veteran’s diagnoses included multilevel lumbar spondylosis resulting in moderate canal stenosis, lumbar spine radiculopathy, and right hemi-laminectomy, and cervical spine stenosis. The examiner noted that there was a possibility of a congenital condition of the thoracic spine, but not of the lumbar or cervical spine. The examiner concluded that the back and neck disabilities were more likely than not a natural progression of an underlying (preexisting) spinal condition that was not related to military service. 
A VHA opinion was provided in July 2018. The orthopedic spinal surgeon diagnosed the Veteran with multilevel lumbar spondylosis, spinal canal stenosis at L3-4, and a history of a right side hemilaminectomy. He noted that those diagnoses are a spectrum of changes that are included under the category of spinal degenerative changes rather than separate disabilities. After a thorough review of the Veteran’s medical records, the examiner noted that the Veteran had complaints of back pain prior to service. The spinal surgeon noted that this showed that the pain existed prior to service and was chronic. Additionally, the surgeon explained that there was no major acute injury to the back during service. In support, the surgeon stated that the Veteran’s service treatment records showed minor lumbosacral pain, and that the Veteran had complaints of lower back pain that was bothersome, and that he had had this pain for years. 
The surgeon cited medical literature in support of his conclusion that the Veteran’s back disabilities are degenerative changes of the spine related to aging and they are not congenital. He noted that chest radiographs showed mild scoliosis and bifid third rib on the right side, and that both of these are development defects that are not in the lower back and are not commonly a source of pain. Additionally, 
the surgeon stated that there are no disabilities superimposed on the development defects found in the thoracic spine. Rather, the disabilities are in the lower back, and are a result of the degenerative process. The examiner also explained that there was no congenital disease. He concluded that the Veteran’s back pain preexisted service as documented by the medical records and that it was less likely than not to have worsened during service as there was no specific major trauma to the back, which would have been needed to show aggravation in service based on the currently cited medical literature. He finally explained that the Veteran’s current disabilities are at least as likely as not a progression of the back pain that existed prior to service. 
The Board finds this VHA opinion to be highly probative. The surgeon is a specialist in his field. He thoroughly reviewed the Veteran’s medical records and documented specific findings throughout. He supported his conclusions as based on the evidence in the medical records as well as cited to appropriate medical literature. For these reasons, the Board finds this opinion to be highly probative and assigned it much weight. 
After review of the competent and probative evidence, the Board finds that service connection for a back disability is not warranted.
In this case, the Board must consider whether there is clear and unmistakable evidence that the Veteran’s back disorder preexisted service. Ordinarily, in such cases, the presumption of soundness would be applicable and evidence establishing that the disease or injury manifested in service would be deemed to satisfy the in-service incurrence element of a service connection claim. Gilbert v. Shinseki, 
26 Vet. App. 48, 55 (2012). The presumption of soundness may be rebutted if there is clear and unmistakable evidence demonstrating the injury or disease existed prior to service and it was not aggravated by such service. Horn, 25 Vet. App. at 235. Despite the lack of formal diagnosis of a back disability prior to service entrance, the Veteran’s statements, as well as his medical records, document chronic back pain prior to service. His service treatment records indicate back pain seven years prior to service. His medical treatment records also show that he was treated for back pain prior to service. Having reviewed the record and assessing the totality of the competent and credible evidence, the Board finds that there is clear and unmistakable evidence that the Veteran’s back disability existed prior to when he was examined, accepted, and enrolled for service. 
Thus, the pivotal question in this appeal is whether there is clear and unmistakable evidence demonstrating that the Veteran’s back disability, which existed prior to service, was not aggravated by service. See Horn, 25 Vet. App. 231, 234–35 (2012) (holding that neither the presumption of aggravation prescribed in 38 U.S.C. § 1153, nor the regulations implementing it in 38 C.F.R. § 3.306 are applicable when considering the aggravation prong of the presumption of soundness). If there is clear and unmistakable evidence demonstrating the preexisting back disorder was not aggravated by service, then service connection must be denied. See Gilbert, 26 Vet. App. at 55 (“If the Secretary rebuts the presumption, the second element of service connection has not been established, and service connection is unwarranted.”).
After review of the competent and probative evidence of record, the Board finds that there is clear and unmistakable evidence that the Veteran’s back disability was not aggravated in service beyond its natural progression. The Veteran’s service treatment records show chronic back pain, but the records do not document a traumatic back injury in service. Additionally, the record does not show that the Veteran sustained any injuries to his back during activity duty. While, as noted above, the Veteran reported back pain during in service, there is no evidence that the back disorder was aggravated beyond its natural progression. In this regard, 
the VHA orthopedic surgeon has opined that the Veteran’s back disorder preexisted service, and that it was not aggravated beyond its natural progression in service. In support, the surgeon cited relevant medical literature that shows a major traumatic injury would need to occur to aggravate the Veteran’s back disorder beyond its natural progression. As noted above, the Board this specialist’s opinion to be probative and deserving of much weight.  
The Board acknowledges the Veteran’s belief that his back disorder is related to service, but notes that he is not competent to provide an opinion on whether his service aggravated his back disorder beyond its natural progression. Thus, he opinion on this matter is not competent and is given no weight.  Therefore, based on the totality of the probative and competent evidence, the Board finds that the record clearly and unmistakably demonstrates that the Veteran’s back disorder was not aggravated beyond its natural progression by service. 38 C.F.R. § 3.304(b). 
(Continued on the next page)
 
As the evidence of record clearly and unmistakably shows that a back disorder preexisted service and was not aggravated by service, service connection is not warranted.
 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	G. Morales, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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