Citation Nr: 1237317 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-14 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for thoracolumbar spine disability. 2. Entitlement to service connection for a respiratory disorder to include benign neoplasm. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran had active military service from July 1970 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Buffalo, New York. 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 After review of the record, the Board finds that a remand for further development is warranted with respect to the issues of entitlement to service connection for a thoracolumbar spine disability and a respiratory disorder to include a benign neoplasm. 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 2002); 38 C.F.R. § 3.303(a) (2012). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board acknowledges that lay evidence may be sufficient to establish a causal relationship between a current disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the Veteran is currently diagnosed with a calcified nodule of the right lung, as noted in the July 2009 VA examination. The Veteran contends that she has had trouble breathing for over 10 years. The Board notes that the Veteran had an abnormal chest x-ray in service in May 1977 which revealed a 2 x 4 mm calcific density in the right lateral midlung field that most likely represented granulomatous disease. Post service treatment records also indicate that the Veteran had granulomatous disease. A July 1984 x-ray revealed a 4 x 7 mm calcified nodule in the peripheral right mid lung zone consistent with a healed granuloma. X-rays taken in April, June, and December 1986 revealed old granulomatous disease with no evidence of a superimposed acute cardiopulmonary process, but with calcification in the hila and apicopleural thickening. The Veteran was afforded a VA examination in June 2009. The examiner noted that the VA treatment records showed a history of anxiety attacks and office visits where the Veteran denied shortness of breath or breathing problems. The Veteran was seen by a pulmonary specialist in November 2008 who noted that the Veteran's lesion in her lung was benign, had not changed in size, and the Veteran was asymptomatic. A chest x-ray taken in July 2008 revealed no evidence of an acute cardiopulmonary pathology. As noted above, the Veteran was diagnosed with calcified nodule of the right lung, which was noted to have significant occupational effects including decreased mobility, decreased dexterity, problems with lifting and carrying, difficulty reaching, speech difficulty, weakness, fatigue, and decreased strength in her lower extremities. The Board notes that is unclear if each of these effects is the result of the diagnosed respiratory disorder. The examiner provided no opinion with regard to whether the Veteran has any current respiratory disorder that is related to her active duty service. With regard to the issue of a thoracolumbar spine disability, the Board notes that the Veteran is currently diagnosed with thoracic lumbar scoliosis with degenerative changes as noted at the July 2009 VA examination. The Veteran's May 1970 entrance examination failed to note that the Veteran had scoliosis. A September 1973 x-ray report noted scoliosis to the left. A May 1977 x-ray report noted moderate scoliosis of the thoracic spine with convexity to the right. The Veteran's June 1982 exit examination noted that she had compensatory retroscoliosis due to left short leg. Post service, a July 1984 x-ray report revealed thoracic lumbar dextroscoliosis. A June 1986 x-ray report noted a moderate thoracic scoliosis with residual of old granulomatous disease with no evidence of a superimposed acute cardiopulmonary process. At her June 2009 VA examination, the Veteran stated that she has had severe pains in her lower back which required injections. It was further noted she had surgery for left sided L5 hemilaminotomy with L5-S1 left medial facetectomy and foraminotomy and resection of synovial with exploration of the epidural space. Notes associated with the surgery, in particular an MRI report, indicated that the Veteran had an underlying spondylolisthesis at L5-S1 with scoliotic deformity of her spine which she had for a long time, but the left sided S1 radiculopathy had recent onset. Upon examination it was noted the Veteran had limitation of motion and at times, severe pain. A June 2008 x-ray report revealed scoliosis and degenerative changes. It was noted the Veteran's back disability had significant effects on her occupational activities including decreased mobility, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength in lower extremities and pain. The examiner did not provide an opinion with regard to whether the Veteran's scoliosis was related to her active duty service. The Board notes that certain abnormal curvatures of the spine, including scoliosis, may be the result of a congenital or developmental defect, which are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation). As such, a congenital or developmental defect generally may not be service-connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996); Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). The presumption of soundness does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder. See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993) (noting the difference between defect and disease and further noting that service connection may be granted if the congenital or developmental condition is a disease). VA's General Counsel has also held that familial or inherited diseases are not excluded from service connection. VAOPGCPREC 67-90 (Sept. 27, 1988), VAOPGCPREC 82-90 (July 18, 1990). A disease, which is defined as a condition capable of improving or deteriorating, is service-connectable if pathology first manifests in service or the disease progresses at a greater than normal rate during active service. Id. According to VAOPGCPREC 82-90, "disease" has been broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, "defect" has been defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. Generally, a "disease" is considered to be a condition capable of improving or deteriorating, while a "defect" is not considered to be a condition capable of improving or deteriorating. Id. There is no opinion with regard to whether the Veteran had a superimposed injury to her spine while in service. The Board recognizes a duty to provide a VA examination when the record lacks evidence to decide the Veteran's claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. 38 C.F.R. § 3.159(c)(4)(i) (2011); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In consideration of the Veteran's lay statements and with recognition of the "low threshold" as announced in McLendon v. Nicholson, the Board finds that a remand for VA examinations to determine if the Veteran has a respiratory disorder or a thoracolumbar spine disorder that is related to her active duty service is warranted. While the Board acknowledges that the Veteran was afforded VA examinations in July 2009, the Board further notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. 38 C.F.R. § 3.159(c) (4); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Pursuant to VA's duty to assist, VA will provide a medical examination or obtain a medical opinion based upon a review of the evidence of record if VA determines it is necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4)(i) (2011). As this case presents certain medical questions which cannot be answered by the Board, a VA opinion must be provided. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). Therefore, the Board finds that a remand is warranted so that the Veteran can be afforded new VA examinations to address whether the Veteran suffered a superimposed injury while on active duty with regard to her scoliosis and whether she has a respiratory disorder that is related to her active duty service. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any current thoracolumbar spine disorder. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should address whether or not any current thoracolumbar spine disorder was more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to the Veteran's military service. The examiner should also address whether the Veteran had a superimposed injury during active duty service that affected any congenital spine defect. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 2. The Veteran should be afforded an appropriate VA examination to determine the nature and etiology of any current respiratory disorder. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should address whether or not any current respiratory disorder was more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent), related to the Veteran's military service. The examiner should provide a thorough rationale for his or her conclusion and confirm that the claims file was available for review. Please send the claims folder to the examiner for review in conjunction with the examination. 3. After any additional notification and/or development that the RO deems necessary is undertaken, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case (SSOC) that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters 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).