Citation Nr: 0725143 Decision Date: 08/13/07 Archive Date: 08/20/07 DOCKET NO. 03-25 072A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a low back disorder. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney At Law ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The veteran served on active duty from September 1969 to August 1971. This matter came to the Board of Veterans' Appeals (Board) on appeal from a December 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In a September 2005 decision, the Board relevantly denied service connection for a low back disorder. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court), which in a September 2006 order, granted a Joint Motion for Remand, vacating that part of the Board's September 2005 decision that denied service connection for a low back disorder and remanded the case for compliance with the terms of the joint motion. In December 2006 the Board remanded the case for further development. The requested development has been completed and the case has been returned to the Board for further appellate action. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained. 2. A low back disorder did not pre-exist the veteran's active service. 3. Any currently diagnosed low back disorder did not have its onset in service or within one year thereafter, and there is no objective evidence etiologically linking it to service or any incident therein. CONCLUSION OF LAW A low back disorder was neither incurred in nor aggravated by active military service; and cannot be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.307, 3.309 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties To Notify And Assist In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims (Court) held, in part, that a Veterans Claims Assistance Act of 2000 (VCAA) notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on a claim for Department of Veterans Affairs (VA) benefits. In reviewing the veteran's claims of entitlement to service connection, the Board observes that the RO issued VCAA notices to the veteran in April 2003, July 2003 and February 2007 which informed him of the evidence generally needed to support claims of entitlement to service connection; what actions he needed to undertake; the need to submit any evidence in his possession that pertained to the claims; and how the VA would assist him in developing his claim. The February 2007 letter informed him of the evidence needed for the assignment of evaluations and effective dates for initial awards of service connection. Although VCAA was enacted after the December 1998 rating decision from which the instant appeal arises, the VCAA notice letters and subsequent readjudication of the claim have cured any defect with regard to the time of notice. Cf. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). The VA has secured or attempted to secure all relevant documentation to the extent possible. VA medical examination reports and treatment records are of record and were reviewed by both the RO and the Board in connection with the veteran's claim. There remains no issue as to the substantial completeness of the veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2006). Any duty imposed on the VA, including the duty to assist and to provide notification, has been met. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007). Analysis The veteran asserts that his current low back disorder was incurred in service. Alternatively, he contends that he aggravated a preexisting low back disorder in service. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis). 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 the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, 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. VAOPGCPREC 3-2003 (July 16, 2003). Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action. Black's Law Dictionary 1067 (5th ed. 1979). Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law. Accordingly, service connection may not be granted on the basis of aggravation of a preexisting disease or injury in such a case. Rather, where the government fails to rebut the presumption of soundness under section 1111, the veteran's claim must be considered one for service incurrence or direct service connection. See Wagner, 370 F.3d at 1094, 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). The Board has a duty to analyze the credibility and probative value of the evidence of record. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Owens v. Brown, 7 Vet. App. 429, 433 (1995). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is not entitled to service connection for a low back disorder. In this case, the presumption of soundness applies because, while the veteran gave a history of pre-existing back trouble in his June 1969 medical history, the accompanying induction physical examination did not show any abnormalities of the spine and there was no indication of any significant or interval history regarding any prior back disorder. Moreover, evidence submitted regarding previous head injuries show that July 1968 X-ray studies of the lumbosacral spine were within normal limits. The remainder of the veteran's service medical records is silent for any low back complaints, treatment, or diagnosis and there were no relevant complaints, findings or diagnoses at the time of his June 1971 separation examination. A December 1971 Statement of Medical Condition, signed by the veteran after his separation from active service further shows no relevant complaints. Thus, the Board finds that the presumption of sound condition is not rebutted in this case, as not even the first part of the two-part test to rebut the presumption is met because there is no clear and unmistakable evidence to show that a back disorder pre-existed service. Accordingly, the Board concludes that the presumption of soundness is not rebutted concerning a low back disorder. Therefore, the Board's analysis must turn to the issue of whether a current low back disorder was incurred during the veteran's active service. See Wagner v. Principi, 370 F.3d 1089, 1094-1096 (Fed. Cir. 2004) (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence). VAOPGCPREC 3-03 (July 16, 2003). While the evidence reveals that the veteran currently suffers from a low back disorder, the competent, probative evidence of record does not etiologically link the veteran's current disability to his service or any incident therein. In this regard, the Board acknowledges the March 2005 VA orthopedic examination report and the April 2005 addendum to the VA orthopedic examination report, in which the examiner initially opined that the veteran's history of heavy lifting and uncomfortable riding positions during service could not be excluded as a possible initial insult leading to his current condition and that it was at least as likely as not that his current low back disorder was due to service. After further review of the veteran's record, the VA examiner subsequently opined that a preexisting low back disorder was aggravated during the veteran's active military service. However, in an April 2007 evaluation, another VA physician, after reviewing the veteran's claims file, opined that his low back disorder was unlikely caused by his military service. This VA physician further provided rationale for his opinion, noting that the veteran had no back complaints inservice and that the first post-service documentation of back pain was in January 1993, more than 21-years after his discharge, and that this incident was clearly preceded by a snow-shoveling incident. The Board finds the April 2007 VA physician's opinion more probative than the VA examiner's opinions in both the March 2005 examination report and the April 2005 addendum, as he provided a detailed rationale for his opinion based on the medical evidence of record. In contrast, while the VA examiner who conducted the March 2005 examination also indicates that he reviewed the veteran's claims file, it is clear that both his opinions are nevertheless based upon the veteran's reported history of both a low back injury prior to service and a low back injury in service, neither of which is supported by contemporaneous service medical and post-service medical evidence of record. A medical opinion, based on an inaccurate factual premise, has very limited, if any, probative value. See Reonal v. Brown, 5 Vet. App. 458, 460- 461 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993). Moreover, the Board further finds that March and April 1997 private medical records further suggest that the veteran's chronic low back strain was related to his employment as a rural postal mail carrier. Finally, the Board finds the 21- year gap in time between the veteran's discharge from service and his initial treatment for back complaints significant, and it weighs against the existence of a link between the veteran's current low back disorder and his time in service. Cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Although the veteran believes his currently diagnosed low back disorder is the result of his service, he is not competent to provide evidence that requires medical knowledge. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Accordingly, for the reasons noted above, the Board concludes that the preponderance of the evidence is against the claim in this case, and service connection for a low back disorder must be denied. In reaching this determination, the Board has considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a low back disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs