Citation Nr: 0731409 Decision Date: 10/04/07 Archive Date: 10/16/07 DOCKET NO. 03-11 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for mild scoliosis of the upper lumbar and lower dorsal spine, claimed as a back injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Layton, Law Clerk INTRODUCTION The appellant is a veteran who served on active duty from July 1951 to October 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the New Orleans, Louisiana Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in September 2004 and October 2005. In May 2004, the veteran presented personal testimony during a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The evidence of record demonstrates the veteran's back disorder is not a result of any established event, injury, or disease during active service. 3. The evidence of record demonstrates the veteran's back disorder was not aggravated during active service. CONCLUSION OF LAW A back disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in July 2002 and October 2004. Those letters notified the veteran of VA's responsibilities in obtaining information to assist in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that he send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. The Board observes that in May 2004, the veteran indicated that he had received medical treatment from Dr. A.J. and provided the RO with his address. In a June 2004 statement the veteran reported he was unable to obtain these records. Also, the Board notes that in his May 2004 hearing the veteran reported that he had seen private physicians for treatment within a year after he left the service. However, the veteran did not respond to the RO's October 2004 letter requesting names and addresses of all private doctors. Without this information, further attempts to obtain this additional evidence is not possible. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Factual Background The veteran's service medical records reveal an extensive history of complaints of back pain. His enlistment physical in July 1951 indicated a normal spine. An April 1952 clinical record provided a diagnosis of scoliosis, idiopathic. In June 1952, following 6 days of hospitalization at a service department facility, it was determined that the scoliosis existed prior to service. He was air evacuated from Guam to the United States in May 1952. Upon arrival in the United States, he was given a diagnosis of scoliosis, mild, upper lumbar and lower dorsal spine, congenital, not disqualifying. A July 1952 examiner noted a scoliostic wave with no limitation of motion. An X-ray revealed a marked midlumbar scoliosis with the convexity to the left. The vertebrae were of average height and regular contour, and the intervertebral spaces were not abnormal. An orthopedic medical note from the next day noted mild scoliosis, not clinically significant. It was noted that no disease prevented him from performing his duties. An additional medical note dated three weeks later stated that the veteran worked heavy manual labor and complained of back pain. He was referred for an orthopedic evaluation and was cleared for duty. Later in the same month, he complained of back pain. The orthopedic examiner noted the veteran had been cleared for duty three times in two months and requested the veteran not be returned for mid-back complaints. Through the remainder of his service, the veteran's back complaints and treatment continued. In September 1952, the veteran stated that he could not work because of back pain. His commanding officer referred him for a psychiatric evaluation. The examiner noted his history of back pain and handling heavy material and stated that the he could be rehabilitated for service if a transfer to a different type of work was possible. It was noted that no psychiatric diagnosis was indicated at that time. In December 1952, the veteran complained of backache. He again reported for medical treatment in January 1953 and February 1953 with back pain. In March 1953, it was noted that he had visited sick call 18 times in the previous year. An August 1953 medical record noted that he still complained of back pain and referred to the prior reports. In the veteran's October 1953 discharge examination report, the examiner noted a normal spine. It was also noted that the veteran denied all history of medical importance. In his Report of Medical History upon discharge, the veteran reported back pain since September 1951. In June 1954, the veteran was medically evaluated for possible entry into the Air Force. The medical examiner noted that he had a normal spine and cleared him for general duty. In the accompanying Report of Medical History, the veteran reported that he had previously been hospitalized in 1951 at a Navy hospital for back trouble. In October 1957, the veteran was again medically evaluated for possible entry into the Air Force. The medical examiner again noted that he had a normal spine and cleared him for general duty. At this time, the veteran stated that he was in good health. In the accompanying Report of Medical History, the veteran did not note any back trouble. In a statement in support of his claim, received in July 2002, the veteran stated that he was unaware of any evidence other than that already identified by VA. In a May 2004 hearing before the undersigned Veterans Law Judge, he stated that while in the military, his job assignment was changed due to his back pain. Within a year after getting out of the service, he was seen by a private doctor for his pain. He was currently being treated by a different private doctor. He reported he had to wear a back support to lift heavy objects. On VA examination in November 2004, the veteran stated that he had back problems all of his life and that he had hurt himself while he was on active duty. The examiner noted that the claims file did not validate that assertion, as the service medical records did not describe any significant back injury and the discharge physical exam revealed normal findings. Objective examination revealed normal posture and gait. X-rays of the lumbar and thoracic spine showed mild degenerative disc disease. It was noted that the veteran's spondylosis was compatible with aging. The diagnosis was aging changes seen on the lumbar spine. It was further noted that it was unlikely any of those changes were related to active duty service. During VA examination in April 2007, the veteran complained of moderate daily pain that radiated throughout his lower extremities. He stated he was unable to walk more than a few yards. Imaging studies revealed scoliotic curvature with thoracic dextroscoliosis and minimal degenerative changes. The diagnosis was age related lumbar spondylosis. It was noted that the scoliosis is and was minimal, asymptomatic and developmental. It was further noted that the scoliosis was neither related nor was it aggravating of his age-related lumbar spondylosis and degenerative disc disease, and the scoliosis was of no consequence in his life. The examiner observed that the veteran worked as a dockside freight handler and could have sought medical attention if his back gave him problems. The opinion was based on the veteran's work history, medical condition, and age. Law and Regulations A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. See 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). A veteran is considered to be in sound health when examined, accepted, and enrolled for service - except as to defects, infirmities, or disorders noted at the time of his entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior to service, and was not aggravated by such service. See 38 U.S.C.A. §§ 1111, 1132. In a precedent opinion, VAOPGCPREC 3-2003 (July 16, 2003), VA's General Counsel discussed the requirements for rebutting the presumption of sound condition when entering the military under 38 U.S.C. § 1111 and 38 C.F.R. § 3.304. The General Counsel 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 veteran claimant 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. The provisions of 38 C.F.R. § 3.304(b) are inconsistent with 38 U.S.C. § 1111 insofar as section 3.304(b) states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service. Section 3.304(b) is therefore invalid and should not be followed. VA's General Counsel went on to hold that the provisions of 38 C.F.R. § 3.306(b), providing that aggravation may not be conceded unless the preexisting condition increased in severity during service, are not inconsistent with 38 U.S.C. § 1111. Section 3.306(b) properly implements 38 U.S.C. § 1153, which provides that a preexisting injury or disease will be presumed to have been aggravated in service in cases where there was an increase in disability during service. The requirement of an increase in disability in 38 C.F.R. § 3.306(b) applies only to determinations concerning the presumption of aggravation under 38 U.S.C. § 1153 and does not apply to determinations concerning the presumption of sound condition under 38 U.S.C. § 1111. 38 U.S.C. § 1111 requires VA to bear the burden of showing the absence of aggravation. Congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2007). Analysis The initial question is whether the veteran's back disability was present prior to service. The record discloses that the veteran denied experiencing recurrent back pain on his July 1951 enlistment physical examination, and the accompanying Report of Medical History. At that time, a clinical evaluation of the spine was normal. In Crowe v. Brown, 7 Vet. App. 238 (1994), the Court indicated that the presumption of soundness attaches only where there has been an induction (enlistment) medical examination, and where a disability for which service connection is sought was not detected at the time of such examination. The Court noted that the regulation provides expressly that the term "noted" denotes only such conditions as are recorded in examination reports, and that history of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions. 38 C.F.R. § 3.304(b)(1) (2004). The Board concludes, accordingly, that the presumption of soundness at entrance attaches. However, this presumption is rebutted by the evidence of record. In this regard, the Board finds that the medical evidence of record clearly and unmistakably shows that the veteran had a pre-existing congenital back disability prior to service that was not aggravated by service. This evidence consisted of numerous medical evaluations for back complaints and the agreement among his service health care providers that the disorder was a congenital disorder that existed prior to service. As discussed above, VA has a duty to demonstrate by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated in service under 38 U.S.C. § 1111 prior to, the veteran's requirement to show an increase in a pre-existing disability under 38 C.F.R. § 3.306(b). In other words, VA must now show by clear and unmistakable evidence that the veteran's preexisting back disability was not aggravated by his service, in order to rebut the presumption of soundness on induction. Numerous complaints regarding his back were recorded during service. The veteran did report in the October 1953 Report of Medical History that he had back pain since 1951; however, no back pathology was noted during the October 1953 separation physical examination. In view of the foregoing, the Board finds that the service medical records, at most, document only that the veteran experienced a flare-up of his symptoms during his service as a manifestation of a back disability which was present prior to service. This is further reinforced by the fact that the veteran attempted to enlist in the Air Force 9 months later, and no back pathology was found, and attempted to enlist again in 1957, with no back disorders noted. In addition, consistent with the finding of a flare-up during service, there is no objective evidence of continuance of symptomatology during the years following the veteran's discharge from service so as to establish chronic aggravation. See Savage, supra (requiring medical evidence of chronicity and continuity of symptomatology). Instead, it appears that the veteran has not been treated for his back disability. The Board also finds the April 2007 VA examination persuasive. The examiner reviewed the claims file and all available medical records. The examination was complete, and the examiner provided adequate reasons and bases for his conclusions. The examiner stated that the veteran's scoliosis is and was minimal, asymptomatic and developmental. There was no indication that anything from his military service aggravated the development of his congenital scoliosis. In sum, the Board finds that there is clear and unmistakable evidence that the veteran's low back disability preexisted service, and that it was not aggravated by service. As such, the presumption of soundness on induction as to a low back disability has been rebutted. See 38 U.S.C.A. § 1111. In order for service connection to be established for a back disability, it must now be determined whether the record establishes that the pre-existing back disability underwent increase in severity beyond the normal progression of the disability. Since there has been no documented treatment of the back since service, it is safe to conclude that there has been no increase in severity beyond the normal progression of the disability. The only evidence portending that the veteran's back disability is in any way related to his service in the military comes from him personally. Where a determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Although the appellant is competent to provide evidence of visible symptoms, he is not competent to provide evidence that requires medical knowledge. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, the Board finds entitlement to service connection is not warranted. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to service connection for mild scoliosis of the upper lumbar and lower dorsal spine, claimed as a back injury is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs