BVA9504701 DOCKET NO. 92-14 707 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Associate Counsel INTRODUCTION The veteran had active service from September 1946 to January 1947. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 1992, rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). The notice of disagreement was received in April 1992. The statement of the case was sent to the veteran in May 1992. The substantive appeal was received in May 1992. In a May 1993 decision, the Board found that new and material evidence had been received to reopen an April 1953 rating decision denying the veteran's claim for entitlement to service connection for a back disability. The Board then remanded the case for the RO to consider whether all the evidence both old and new warranted a grant of service connection. Thereafter, the RO, in an August 1993 rating decision, noted that the veteran's claim for entitlement to service connection for a back disability had been denied in a final March 1947 rating decision (prior to the April 1953 rating decision). The RO's August 1993 rating decision affirmed the March 1947 rating decision and did not review the veteran's claim on the basis of the entire record. Thereafter, in an April 1994 decision, the Board addressed the question of whether there was new and material evidence to reopen the March 1947 decision in accordance with the guidelines set forth by the Court of Veterans Appeals (Court) in Manio v. Derwinski, 1 Vet. App. 140 (1991) In the April 1994 decision, the Board first determined that new and material evidence had been submitted and the claim for entitlement to service connection for a back disability was reopened under 38 U.S.C.A. § 5108 (West 1991) and 38 C.F.R. § 3.156 (1993), and, second, remanded this case for the RO to review the claim under the second part of Manio. Specifically, the RO was instructed to readjudicate the claim for entitlement to service connection for a back disability in light of all evidence, both old and new. The RO was also instructed to complete further development. The Board recognizes that the claim has been reopened and all development has been completed. Therefore, the case is ready for appellate review and will be considered on a de novo basis. CONTENTIONS The veteran currently contends that he injured his back in service when a sergeant put his knee in the center of the veteran's back and applied his full weight leaning forward. The veteran asserts that this incident caused an immediate back injury which resulted in lasting residuals. He asserts that although he reported a history of sustaining a throw from a horse in which his back was injured to his in service examiners, he actually injured his left side in that fall and not his back. Alternatively, he asserts that if his back was injured during a fall from a horse, it was a minor injury that resolved within a few days with no lasting residuals. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claim for entitlement to service connection for a back disability. FINDINGS OF FACT 1. The veteran clearly and unmistakably had a back disability before service. 2. During the veteran's short period of service, there was no increase in severity in his back disability. CONCLUSION OF LAW 1. There is clear and unmistakable evidence that the veteran's back disability existed prior to service, and the presumption of soundness with regard to a back disability is rebutted. 38 U.S.C.A. § 1111 (West 1991). 2. The veteran's back disability was not aggravated in service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991); 38 C.F.R. § 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim as to this issue is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a plausible claim. The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107 (West 1991). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service will rebut the presumption. 38 U.S.C.A. § 1111 (West 1991). A review of the service medical records reflect that the veteran's spine was noted to be normal upon entry examination on September 27, 1946. Thereafter, in a December 6, 1946 medical record, the veteran was treated for back pain. At that time, he reported a history of a back injury prior to entry. He related that four years prior to service, he was thrown from a horse and landed on his back. He further related that since that time, he had experienced backache upon exertion. Since service entry, he related that his back ached during working, drilling, and carrying a pack on field exercises. The examiner specifically noted that the veteran reported no other sudden trauma or illness involving the spine. Physical examination revealed a thin, poorly developed male who was alert, cooperative, and in no apparent distress. The veteran exhibited poor muscular development. He had loss of lumbar curve, tenderness to percussion over the lower dorsal and upper lumbar spines, and no Murphy's sign. X-rays revealed edging deformity of T12 and L1 with the major defect at the superior and inferior anterior ossicular surfaces of the bodies with defect being irregular in outline. The examiner provided a diagnosis of deformity, acquired, dorsal and lumbar spine which existed prior to service entry and was not caused by misconduct. The examiner opined that, in view of the veteran's poor posture, lack of muscular development, and x-ray evidence of bony deformity of the spine, he would be a small asset to the service. He was transferred to Camp Lejeune for treatment. At Camp Lejeune, he was examined again on December 6, 1946. At that time, he complained of back pain. The veteran repeated the history of falling from a horse, but related that he had suffered no ill affects until November 1946, when he began to have severe pains in the middle of his back while he was on the rifle range. He stated that any physical exertion such as marching, exercise, or carrying heavy packs was causing severe back pain. Physical examination revealed that he had poor posture and stood in a slumped position. He did not have any gross abnormalities, except for the skeletal system. The examiner noted slight arching of the thoracic spine and a little loss of the normal lumbar lordosis. The veteran did not exhibit any loss of motion or tenderness anywhere on the spine to palpitation or strenuous percussion. On December 18, 1946, the veteran appeared before a Board of Medical Survey. At that time, the veteran stated that he had had considerable difficulty with his back upon any physical exertion or heavy work as well as poor posture for the past several years. He related that he was, at present, unable to perform routine service duties due to severe back pain. Physical examination revealed a slightly built male with poor posture, poor musculature development and general underdevelopment. He exhibited some flattening of the normal lumbar curve and a moderate increase in the low dorsal rounding. X-rays of the three lower dorsal spine and lumbar spine showed an irregularity of the epiphyseal plates and the antero-superior margins of the bodies of the eleventh and twelfth dorsal and first and second lumbar vertebrae, most marked in twelve and one. There was also some involvement of the antero-superior margins of D-12 and L-1. It was the opinion of the orthopedist that those changes were consistent with an old juvenile epiphysitis involving D-11, D-12, L-1, and L-2. The Medical Board concluded that the veteran had deformity, acquired, dorsal and lumbar spine which was not the result of his own misconduct, was not incurred in the line of duty, existed prior to enlistment, and was not aggravated by service conditions. The veteran was found to be permanently unfit for service and it was recommended that he be discharged from service. The recommendation for discharge was approved and the veteran was discharged in January 1947. In December 1951, the veteran apparently attempted to reenlist. On his Report of Medical History, he indicated that he had sprained his back during service and was treated at Camp Lejeune. The veteran stated that he developed a backache during service, but he did not recall any specific injury or accident which precipitated the backache. He related that following a medical discharge, his back remained painful for 4 months, but had since remained asymptomatic for 4 years despite his employment as a farmer and fruit-picker. The veteran was examined for reenlistment. The examiner noted that the spine was apparently normal in movement and function and also noted that the veteran denied any symptomatology since service in 1947. In December 1951, a waiver recommending approval for reenlistment was submitted. However, in January 1952, a recommendation that the disability not be waived was implemented. VA treatment records dated in February 1953 revealed that the veteran was treated for a back disability. At that time, he gave a history of injuring his back on an obstacle course in service. The examiner opined that he had a compression fracture of D12 and L1 with no evidence of herniated nucleus pulposus or spondylosis. In an April 1953 letter, the veteran indicated that during service, he injured his back when he fell while going through an "obstruction course." In support of his claim, several affidavits were submitted which essentially related that the veteran had no back disability prior to service, injured his back during service, and the in service back injury caused permanently disabling residuals. Currently, the veteran contends that he never had a preexisting back injury before service. He asserts that although he did fall from a horse prior to service, he actually injured his left side and did not injure his back. Alternatively, he asserts that if his back was injured during a fall from a horse, it was a minor injury that resolved within a few days with no lasting residuals. Further, he contends that during service, while he was on the rifle range, his sergeant put his knee in the center of the veteran's back and applied his full weight leaning forward. The veteran asserts that this incident resulted in an immediate back injury which has resulted in his current back disability. As noted above, the Board reopened the claim for entitlement to service connection for a back disability in the April 1994 decision based on the veteran's current allegations that he was initially injured in service when he was struck in the back by his sergeant. The Board found that since that statement presented a reasonable possibility of changing the outcome, the claim was reopened. Justus v. Principi, 3 Vet.App. 510 (1992). Currently, the Board will review all of the evidence on a de novo basis. The veteran's current allegations were sufficient to permit the reopening of the claim. However, a credibility determination regarding those allegations along with the other evidence of record must be made. Hadsell v. Brown, 4 Vet.App. 208, 209 (1993) citing Justus. In regard to the veteran's current allegations that he did not have a preexisting back injury prior to service and initially incurred a back injury when he was struck in the back by his sergeant, the Board finds that these statements are not probative in light of his contradictory statements made during service and reflected in his service medical records. As noted, during service, he consistently reported a preexisting back injury due to a fall from a horse, but he did not report that he sustained any trauma whatsoever to the spine during service. Moreover, an orthopedist who examined the veteran in conjunction with the Medical Board found that the veteran's current clinical findings regarding a back disability to be consistent with the veteran's reported old juvenile back disability. It is significant to note that the veteran provided his medical history during service at a time when he was in need of treatment for his back, and, thus, was likely to be forthcoming regarding his prior back injury and medical history. Moreover, contrary to his current contentions, the veteran reported to the Medical Board that he had considerable difficulties with his back prior to service. Furthermore, in 1951, when the veteran attempted to reenlist 4 years after discharge, he related that he developed a backache during service, but again, he related that he did not recall any specific injury or accident which precipitated the backache. The Board has considered the lay statements which asserted that the veteran had no back problems prior to service and has suffered from back problems subsequent to his discharge from service. However, since the individuals who submitted the affidavits have not been shown to be capable of making medical conclusions, their statements are not probative and are not supported by the medical evidence of record. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The Board finds that the entries in the service medical records are clear and convincing evidence that the veteran had a preexisting back disability. The records include specific details regarding the veteran's preservice injury as stated by the veteran himself on several occasions, reflect no report of any trauma to the back, and reveal an opinion of an orthopedist in service who found that the veteran's current clinical findings regarding the spine were consistent with a preexisting juvenile back disability. In addition, although the veteran currently contends that he sustained trauma to the back during service, that contention directly conflicts with his statements made in service at a time when he was in discomfort and in need of treatment and, thus, unlikely to mislead the in service examiners. Accordingly, the Board concludes that the veteran's in service statements regarding his injury to his back prior to service, the service examiners' corresponding documentation of the veteran's medical history, and the orthopedist's opinion regarding the preexisting juvenile back disability constitute clear and unmistakable evidence that a back disability existed prior to service. Therefore, the presumption of soundness is rebutted. 38 U.S.C.A. § 1111 (West 1991). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due the natural progress of the condition. 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 U.S.C.A. § 1153 (West 1991); 38 C.F.R. 3.306(b) (1993). In addition, the United States Court of Veterans Appeals (Court) has stated that temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet.App. 304, 306-307 (1993) citing Hunt v. Derwinski, 1 Vet.App. 292 (1991). The Board notes that a determination must be made whether the veteran's preexisting back disability underwent an increase in severity during service. In particular, it must be determined whether the veteran merely exhibited symptoms of his back disability or whether there was an actual increase in pathology of the underlying disorder beyond the natural progression of that disorder. At the outset, the Board notes that although the veteran currently has a back disability as shown in recent medical records, the question to be resolved involves whether there was aggravation of a preexisting back disability in service. Therefore, since the veteran's medical records dated after discharge do not provide any evidence of aggravation of a back disability during active duty, they are not probative as to that issue. Upon a review of the service medical records, the Board observes that the veteran reported considerable difficulty with his back including backaches upon any physical exertion or heavy work prior to entry. Within two months of service entrance, he began relating that his back ached during working, drilling, and carrying a pack on field exercises and that he was unable to perform routine service duties due to severe back pain. The Medical Board found that the preexisting back injury was not aggravated during service. Thus, taking into account the veteran's own statements, a review of these records reveals similar, if not the same, manifestations of a back disability, including backaches and pain upon exertion, before and after service. In order to assist in the Board's review of whether the veteran's preexisting back injury was aggravated during service, an independent medical expert opinion (IME) in the field of orthopedics was obtained in November 1994. The Board notes that the IME reviewed the veteran's claims file prior to rendering his opinion. The IME observed that the veteran engaged in normal activities following service and reported no back disability in 1951 when he tried to reenlist. In essence, the IME determined that the veteran's preexisting back disability was not aggravated during service. He stated that any incident involving back problems during service did not impact the veteran's back disability, rather, it developed to its present level through the natural progression of the underlying condition. Upon reviewing the evidence of record including the IME opinion, the Board finds that the veteran's preservice injury did not increase in severity during service. According to the veteran's own statements during service which he made contemporaneously with his complaints of back pain, he endured several years of considerable back problems manifested by backaches and pains upon exertion prior to service. The veteran's complaints that he was unable to perform routine duties which required exercise and exertion during service are wholly consistent with his descriptions of the symptomatology of his preservice back disability. The service medical records do not offer evidence of an actual increase in pathology beyond the natural progression of the underlying preexisting back disability during the veteran's brief 3 months of active duty. Rather, the veteran's reported complaints of physical limitations caused by a back problem during service, by his own admission at that time, were essentially the same as his reported complaints of physical limitations caused by a back problem prior to service. Therefore, in light of the IME opinion and the evidentiary record, the Board finds that although the veteran experienced symptoms of his preexisting back disability during service, the underlying pathology did not increase. The Board concludes that the veteran had a preexisting back disability upon his entrance into service which was not aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991); 38 C.F.R. § 3.306 (1993). Accordingly, the Board must conclude that entitlement to service connection for a back disability has not been established. ORDER The appeal is denied. G.H. SHUFELT Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.