Citation Nr: 1305378 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 11-09 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Megan C. Kral, Associate Counsel INTRODUCTION The Veteran had active duty from January 1951 to December 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2012, a Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In a July 2012 decision, the Board remanded the appeal to the RO via the Appeals Management Center (AMC), in Washington, DC. However, as will be explained below, this claim must again be remanded to the RO via the AMC. VA will notify the Veteran if further action is required. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND While the Board regrets the further delay that another remand of this case will cause, the record is not ready for appellate review of the issue on appeal. The following further development is required. As discussed in the July 2012 remand, congenital or developmental defects are not diseases or injuries in the meaning of applicable legislation for disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2012). 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 (July 18, 1990). The medical evidence of record shows that the Veteran has sacralization of the 5th lumbar vertebrae which, a result of the July 2012 remand, has been confirmed by medical personnel as a congenital defect. As such, it would not be a disability for which service connection may be established. However, if the Veteran has a separate low back disability which is causally related to service, then it would be possible to establish service connection for such disability. It appears that subsequent to the VA examination conducted in early August 2012, there have been medical findings of low back disability separate from the congenital defect. For example, a radiological report from August 2012 shows there is grade 1 anterolisthesis at L4-L5; mild multilevel degenerative disc disease seen throughout the lumbar spine; mild endplate concavity suggestive of osteoporosis; and facet arthropathy seen at L3-L4, L4-L5 and L5-S1. These records, as well as others, are in Virtual VA (VA's electronic data storage system) and it appears that the August 2012 examiner was either unaware of the records or did not have access to the records. Additionally, the prior remand directed review by a medical doctor, but it appears that a physician's assistant conducted the August 2012 examination. Although the Board regrets delay in appellate review, it appears that further action is necessary to fully assist the Veteran. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO should obtain any VA treatment records (not already of record) relevant to the appeal. 2. After the above development is completed, the Veteran's claims file and Virtual VA records should be made available to a VA medical doctor for review. After reviewing the records, the VA medical doctor should clearly list all current medically diagnosed low back disorders reflected in the records. The examiner should then respond to the following: a. Is the Veteran's sacralization of the 5th lumbar vertebrae a congenital defect or disease? b. If the sacralization of the 5th lumbar vertebrae is a congenital disease (as opposed to a congenital defect), is it at least as likely as not that such sacralization increased in severity during service beyond the natural progression of the disease? c. Disregarding the Veteran's sacralization of the 5th lumbar vertebrae, as to any other current low back disability, is it at least as likely as not (a 50% or higher degree of probability) that such other current low back disability is causally related to the Veteran's period of active duty service, to specifically include an injury suffered during such service? A detailed rationale should be furnished for all opinions. 3. In the interest of avoiding further remand, the AMC/RO should review the medical opinion obtained and ensure that an adequate opinion with rationale has been offered. 4. After completion of the above and any further development deemed necessary by the AMC/RO, the issue on appeal should be readjudicated. If the benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. The Veteran 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). _________________________________________________ ALAN S. PEEVY 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).