Citation Nr: 1300885 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 09-32 933 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a low back disability, to include Bertolotti's syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from March 27, 1962 to August 16, 1962. This case came to the Board of Veterans' Appeals (Board) on appeal from a September 2008 decision by the RO in St. Petersburg, Florida that denied service connection for Bertolotti's syndrome, claimed as a back disability. A hearing was held at the RO before the undersigned Veterans Law Judge (i.e., a Travel Board hearing) in November 2011. A transcript of this hearing is of record. In a February 2012 decision, the Board denied the claim for service connection for Bertolotti's syndrome. The Veteran then appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2012 unilateral motion to the Court, the Secretary of VA requested that the Board decision be vacated, and that the issue of service connection for Bertolotti's syndrome be remanded. In an August 2012 Court order, the motion was granted, the Board's February 2012 decision was vacated, and the issue was remanded. The case was subsequently returned to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In light of the Secretary's motion and the Court order, vacating the Board's February 2012 decision, the Board finds that a remand is required. The Secretary's motion and the Court order found that the August 2009 VA examination upon which the Board had relied to deny this claim was inadequate, and that an adequate examination is required under Barr v. Nicholson, 21 Vet. App. 303 (2007). In Barr, 21 Vet. App. at 311, the Court held that once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. See also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated, and "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"). With respect to the claim for service connection for a back disability, to include Bertolotti's syndrome, the Court found that the VA examination was deficient in providing a reasoned explanation connecting the conclusions with medical data, citing Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). For the reasons discussed below, the Board finds that an additional VA examination and medical nexus opinion is needed concerning this claim, with a review of the claims file and medical evidence and an adequate supporting rationale. See Barr, supra; Nieves-Rodriguez, supra; McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006), citing 38 U.S.C.A. § 5103A(d)(2) and 38 C.F.R. § 3.159(c)(4) . The Court also determined that the Board failed to make a finding of fact as to whether the Veteran's pre-existing Bertolotti's syndrome is a congenital "disease" or "defect." The Board finds that additional medical comment is also needed as to this question, and the VA examiner should be asked to comment on this in the examination report. Service connection is granted if it is shown the Veteran suffers from disability resulting from an injury sustained or a disease contracted in the line of duty during active military service, or for aggravation during service of a pre-existing condition beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.306. 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 and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A congenital or developmental "defect" is not a "disease or injury" within the meaning of applicable legislation and, thus, not service connectable for VA compensation purposes as a matter of express VA regulation. 38 C.F.R. §§ 3.303(c), 4.9 (2012). Service connection is permissible, however, for "diseases" (but not "defects") of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. VA's General Counsel indicated that support for this position could be found in VA regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities. Also, according to the VA General Counsel's opinion, although service connection cannot be granted for a congenital or developmental "defect", such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Thus, to allow for proper legal analysis of a Veteran's claim as it pertains to the claimed low back disability, medical clarification is necessary as to whether any current back disability is a congenital or developmental "disease" or "defect." See id.; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). See also Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Winn v. Brown, 8 Vet. App. 510, 516 (1996); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. If the claimed disorder is a "disease," an opinion is required as to whether it was as likely as not aggravated by the Veteran's period of active service beyond its natural progression. Whereas, if the claimed disorder is instead a "defect," an opinion is required as to whether it was as likely as not subject to superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. The Veteran's service treatment records show that on pre-enlistment medical examination in late February 1962, a back disability was not noted. In early July 1962, the Veteran complained of severe back pain located just above the iliac crest but also to a lesser extent over the entire low back. It had been present for one and one-half months. He denied a history of trauma, but had a kidney infection four months ago. An August 1962 Report of Board of Medical Survey reflects that the Veteran was admitted in July 1962 with a diagnosis of Bertolotti's syndrome (sacralization lumbar vertebra), existing prior to service. It was noted that an X-ray study of the lumbosacral spine showed sacralization of the fifth lumbar vertebra with the iliac wing on the left with a questionable pseudoarthrosis at this level. The Medical Board determined that the Veteran suffered from Bertolotti's syndrome which is essentially a congenital abnormality of the lumbosacral spine and a condition which existed prior to enlistment into the Navy, and was not aggravated by Naval service more so than a comparable civilian activity. The Veteran was thereafter discharged as unfit for duty. By a letter dated in April 2008, a private physician, Dr. A.R., indicated that he had treated the Veteran for back pain, and stated that "this condition could have at least been aggravated in the service." An X-ray study of the lumbosacral spine was performed in August 2009, and revealed sacralization of L5 on the right, resultant degenerative height loss of L4-5, anterolisthesis of L4 on L5, osteophytes, and mild to moderate dextroscoliosis. The August 2009 VA examiner opined that the Veteran's pre-existing Bertolotti's Syndrome was unlikely aggravated by his military service. The stated rationale was that upon discharge from the service, the Veteran was able to work in the construction business for more than 20 years, and further that the Veteran was only in the service from March to August 1962. The Veteran contends that he never had any back problems prior to military service, and that his back pain began in service and has continued since then. He has submitted supporting lay statements in this regard. He testified that after service, although he worked in construction for many years, he was a foreman and did not have day-to-day lifting. Any additional pertinent VA or private medical treatment records must be obtained, as well. 38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive, even if not actual, possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of all additional records of any relevant VA or private treatment since service that are not already on file. If any identified records cannot be obtained, this fact must be documented in the claims file and the Veteran appropriately notified in accordance with 38 C.F.R. § 3.159(e). 2. Upon receipt of all additional records, schedule another VA compensation examination to obtain an additional medical nexus opinion concerning the etiology of the Veteran's current low back disability(ies), to include Bertolotti's syndrome and dextroscoliosis. The claims file, including a complete copy of this remand (and any additional evidence obtained on remand), must be made available to and reviewed by the examiner for the pertinent medical and other history. In particular, the examiner is asked to review the service treatment records, the prior August 2009 VA examination report (which the Court has since determined is inadequate) and the relevant private medical records. The VA examiner should specifically respond to the following questions: (a) What, if any, of the Veteran's current low back disorders is developmental (congenital)? (b) For any such disorder, is it a "disease" or "defect"? (c) If a "disease," an opinion is needed as to whether it was as likely as not aggravated by the Veteran's period of active service beyond its natural progression. (d) If instead a "defect," an opinion is needed as to whether it was as likely as not subject to superimposed disease or injury during the Veteran's military service that resulted in disability apart from the congenital or developmental defect. (e) Conversely, if not a congenital/development disease or defect, what is the likelihood (very likely, as likely as not, or unlikely) this disability is related to his military service from March to August 1962. "Defects" are usually static in nature, so not generally subject to episodic improvement or worsening, whereas "diseases" are. The term "as likely as not" means at least 50 percent probability. It does not, however, mean merely within the realm of medical possibility, rather, that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. "Aggravation" is defined for legal purposes as a chronic or permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms. Because the Veteran is competent even as a layperson to report the onset of symptomatology regarding this disability, including low back pain, the examiner must specifically address the Veteran's report of any manifestation during his military service in determining whether any current disability affecting his low back may have originated in service. See Dalton v. Nicholson, 21 Vet. App. 23 2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and, instead, relied on the absence of evidence in the Veteran's service treatment records to provide a negative opinion). The examiner must discuss the medical rationale for all opinions expressed, whether favorable or unfavorable, if necessary citing to specific evidence in the file. If no opinion can be rendered concerning this claim, without resorting to mere speculation, explain why this is not possible or feasible. The Veteran is hereby advised that failure to report for this additional VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 3. Then readjudicate this claim in light of the additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).