Citation Nr: 1424799 Decision Date: 06/03/14 Archive Date: 06/16/14 DOCKET NO. 11-05 067 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for degenerative disc disease of the lumbar spine at L2-L5. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to February 1987. He appealed to the Board of Veterans' Appeals (Board/BVA) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, in support of his claim, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing has been associated with the claims file, so is of record. The claim requires further development before being decided on appeal, however, so the Board is remanding it to the Agency of Original Jurisdiction (AOJ). REMAND If a VA compensation and pension examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. §§ 4.2, 19.9(a) (2013); Bierman v. Brown, 6 Vet. App. 125, 129 (1994). Indeed, whenever VA endeavors to provide a compensation examination in response to a claim of entitlement to service connection for a particular disability, even when not statutorily obligated to, it must ensure the examination is adequate, else, notify the claimant why one cannot or will not be provided. See Barr v Nicholson, 21 Vet. App. 303, 311 (2007). In September 2009, the Veteran was afforded a VA orthopedic examination for a medical nexus opinion concerning the etiology of his low back disorder. Despite the plethora of service treatment records (STRs) showing complaints of and treatment for low back symptoms (as well as the Veteran's reports of recurrent back pain during his November 1986 military separation examination), the examiner provided an opinion that the Veteran's low back disorder (diagnosed as degenerative disc disease/degenerative joint disease, lumbar spine) was less likely than not to have been caused or aggravated by his service based on the available information. The examiner appears to have concluded that, because there were no complaints or evidence of low back injury after the Veteran's August 27, 1985 accident in service, when he fell from a truck and injured his leg, his current low back disorder cannot be the result of his service. The opinion is inadequate however, for one, because it lacks any explanatory rationale, and this is where most of the probative value of a medical opinion is derived, not merely from reviewing the claims file or considering the relevant history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In the Neives-Rodriguez decision, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that most of the probative value of a medical opinion comes from the discussion of its underlying reasoning, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. Consider also that, during his August 2012 videoconference hearing before the Board, the Veteran steadfastly maintained that he had injured both his leg ("thigh") and low back in that 1985 incident during his service, and in any event that the VA examiner seemingly only had considered that injury, alone, when providing the unfavorable medical nexus opinion, rather than also considering the numerous other times during the Veteran's service when he had complained about his low back, such as from exercising, doing heavy lifting when loading and unloading trucks, moving boxes, and other things of those sorts. So the Veteran and his representative argued that the VA examiner had not considered all of the relevant facts. The Board agrees and, for this reason, is obtaining supplemental comment concerning this determinative issue of causation. In other testimony during his hearing, the Veteran cited an additional diagnosis of spina bifida occulta (i.e., curvature of his spine) - which he argued, even if pre-existing his service since congenital, nonetheless was aggravated by the injury and other physical activity mentioned during his service. Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2013). However, the mere fact that a disorder is congenital in origin does not preclude service connection. See VAOGC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty); VAOPGCPREC 82-90 (July 1990) (holding that "service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin"); accord Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). Only congenital "defects," as opposed to congenital "diseases," are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. See id. The Court indicated that support for this position could be found in VA's regulations, themselves, noting that sickle cell anemia, although a familial disease, was included for rating purposes in the Schedule for Rating Disabilities (Rating Schedule). Congenital defects are by definition static in nature, and thus the litmus test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is subject to change. See VAOPGCPREC 67-90. As explained in the precedential General Counsel opinion, "congenital or developmental defects are normally static conditions which are incapable of improvement or deterioration." Id. The opinion states further: "[a] disease, on the other hand, even one which is hereditary in origin, is usually capable of improvement or deterioration." Id.; see also Quirin, 22 Vet. App. at 395 (observing that "[u]nder the framework set forth in the General Counsel's opinion, any worsening-any change at all-might demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable") (citing VAOPGCPREC 82-90)). Thus, if the disorder may be aggravated, then it is not considered a congenital defect, and consequently it is eligible for service connection notwithstanding its congenital nature. See id. Thus, service connection may not be denied merely on the basis that a disorder is congenital in nature. Moreover, any superimposed disease or injury is also eligible for service connection. See VAOPGCPREC 82-90 (observing that even congenital defects "can be subject to superimposed disease or injury" and that "if during an individual's military service, superimposed disease or injury does occur, service connection may indeed be warranted for the resultant disability"); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). Thus, to allow for proper legal analysis of a Veteran's claim, medical clarification often is necessary to determine whether the condition being claimed is a congenital or developmental "disease" versus "defect." See id.; Quirin, 22 Vet. App. at 395. If the claimed disorder is a "disease," an opinion is required as to whether it was as likely as not aggravated by his active military service beyond its natural progression. If this claimed disorder instead is a "defect," an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during his active military service that resulted in disability apart from the congenital or developmental defect (this is relevant when considering the other low back diagnoses of degenerative disc and joint disease of the lumbar spine). Accordingly, this claim is REMANDED for the following additional development and consideration: 1. If still available, return the file to the examiner who performed the September 2009 VA examination to allow the examiner opportunity to again review the claims file and offer an addendum opinion regarding the etiology of the Veteran's low back disorder. Taking all the evidence into account, the examiner should offer an opinion on the following: a) Whether it is clear and unmistakable that the Veteran entered service with a pre-existing low back disability? In particular, did he have spina bifida occulta? If he did, is this best characterized as a congenital disease or defect? If a "disease", an opinion is required as to whether it was as likely as not aggravated by his active military service beyond its natural progression. If instead is a "defect", an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during his active military service that has resulted in disability apart from the congenital or developmental defect (namely, such as in the way of the additional diagnoses he has received since service of degenerative disc and joint disease of his lumbar spine). b) If on the other hand it is determined the Veteran did not enter service with a pre-existing low back disorder, is it as likely as not that any current low back disorder (including especially the degenerative disc and joint disease of his lumbar spine mentioned) is the result of any disease contracted or injury sustained during his service, if considering his repeated complaints of low back symptoms and treatment for chronic low back muscle strains during his service? If, for whatever reason, the examiner who performed the September 2009 examination is unavailable, have someone else with the necessary medical qualifications and expertise provide this supplemental comment. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, the designee can make the necessary determinations merely by reviewing the existing evidence in the claims file. If the designee determines another examination is required, then schedule this additional examination. The complete claims file, including the report of the previous VA examination, and a copy of this REMAND, must be provided to the examiner and the examiner should be asked to specifically note that the claims file (both the physical and electronic portions of it) has been reviewed. The examiner should elicit from the Veteran a comprehensive history of his relevant symptoms since the events in service It is most essential, however, that the examiner discuss the underlying medical rationale of the opinion, whether favorable or unfavorable to the claim, preferably citing to specific evidence in the file supporting conclusions and established medical facts and principles. If the examiner is unable to offer this requested opinion without resorting to mere speculation, this should be indicated but, even more importantly, explanation provided as to why a more definitive response is not possible. 2. Then readjudicate this claim in light of this and all other additional evidence. If this claim continues to be denied, send the Veteran and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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. 2013). _________________________________________________ KEITH W. ALLEN 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) (2013).