Citation Nr: 1315907 Decision Date: 05/15/13 Archive Date: 05/15/13 DOCKET NO. 09-41 538 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a back disorder claimed as scoliosis, spinal stenosis, arthritis, and sciatica. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from September 1971 to September 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which denied service connection for scoliosis, spinal stenosis with arthritis, and sciatica. Reviewing the procedural history in this matter, in September 1985, the Veteran filed a claim for both compensation (service connection for a back condition) and for pension benefits. In a December 1985 rating decision, the RO denied nonservice-connected pension benefits; however, the Board finds that the RO did not explicitly or implicitly deny the service connection claim for a back disorder. Because the September 1985 claim for service connection for a back disorder was not adjudicated in the December 1985 rating decision, thereafter, the claim remained pending with VA. 38 C.F.R. § 3.160(c) (2012); see Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009) (a claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated). In January 2006, the Veteran again requested service connection for scoliosis, spinal stenosis with arthritis, and sciatica; however, because his claim had been pending since September 1985, this statement did not constitute a new claim but resulted in adjudication of the pending claim for service connection. In June 2008, the RO issued a rating decision denying the claim. The Board finds that the claim was not implicitly denied in the December 1985 rating decision. Cogburn v. Shinseki, 24 Vet. App. 205, 212 (2010) (citing Jones v. Shinseki, 619 F.3d 1368, 1373 (Fed. Cir. 2010)). The December 1985 adjudication of pension included some medical evidence referencing a back disability but did so in the context of how it affected the Veteran's employability; the pension issue that was adjudicated involved distinct criteria regarding employability; and a reasonable person would not be placed on notice that the expressly denied claim for pension also included an implicit denial of service connection for a back disability. In the present case, the Board finds that the description of the evidence considered in the December 1985 rating decision included a September 1985 general medical examination, which diagnosed the Veteran with moderate to marked rotary scoliosis and moderate to marked negative arthritis of the lumbar spine. Despite a positive diagnosis for a spine disability, the 1985 rating decision did not explicitly deny the claim for service connection for a back condition. Although a letter was sent to the Veteran in December 1985 informing him that his claim for disability benefits could not be granted, the letter appears to reference only his claim for pension benefits, and not his service connection compensation claim. Given the vagueness of the December 1985 rating decision and the following December 1985 notice letter, the Board finds that a reasonable person would not have been placed on notice that the expressly denied pension claim also included an implicit denial of the service connection back claim. The Veteran's service connection claim for a back condition was not adjudicated until the June 2008 rating decision now on appeal. Moreover, in his October 2009 substantive appeal, the Veteran requested a hearing before the Board (Travel Board). In March 2011, the RO sent a letter to the Veteran's current address in Baton Rouge, Louisiana, informing him that the requested hearing had been scheduled for June 10, 2011. Documented in the VA Locator System (VACOLS) is a notation that the Veteran failed to report to the hearing. Generally, there is a presumption of regularity under which it is presumed that Government officials have properly discharged their official duties. See Ashley v. Derwinski, 2 Vet. App. 307 (1992), citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption extends to the practices and procedures of the RO and the Board. See Mindenhall v. Brown, 7 Vet. App. 271 (1994). Here, the Board finds that the presumption of administrative regularity has not been rebutted. In this regard, the Board finds that a review of the claims file, the Virtual VA electronic file, and VACOLS, reveals that the Veteran's address has been consistent since January 2006. Moreover, none of the correspondence sent to the Veteran since June 2010 has been returned as undeliverable. The Veteran also submitted correspondence to VA in January 2012 and November 2012, which reflect the same address used on the hearing notification letter. Also, the Veteran's multiple correspondence, received after notification of the June 2011 hearing, did not provide an explanation for his absence at the June 2011 hearing and did not request that the hearing be rescheduled. The Board acknowledges that the Veteran's representative has requested the Board to remand the matter in order to determine the outcome of the Veteran's request for a hearing; however, the Board does not find a remand is necessary on this matter given the reasons listed above. Accordingly, the Board finds that the hearing request is deemed withdrawn. See 38 C.F.R § 20.704(d) (2012). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND The Board finds that a remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim for service connection for a back disorder claimed as scoliosis, spinal stenosis, arthritis, and sciatica. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). In disability compensation (service connection) claims, VA must provide a medical examination and medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the factor of relationship of current disability to service, the United States Court of Appeals for Veterans Claims has indicated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and a veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon, 20 Vet. App. at 83; see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service). A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304 (2012). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. 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 C.F.R. §§ 3.304, 3.306. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation and are not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2012). See Winn v. Brown, 8 Vet. App. 510, 516 (1996), appeal dismissed, 110 F.3d 56 (Fed. Cir. 1997), and cases cited therein. Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514- 15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; and VAOPGCPREC 11-99. For purposes of determining whether a disorder is a congenital defect or a familiar disease, VA interprets the term "disease" in 38 U.S.C. §§ 310, 331, and the term "defects" in 38 C.F.R. § 3.303(c), as being mutually exclusive. "Disease" is 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. See VAOPGCPREC 82-90 (citing DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 385 (26th Ed. 1974)). On the other hand, the term "defect," viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). At the outset, the Board finds that service treatment records from September 1971 to September 1974 are unavailable. See RO memorandum dated April 2008 and June 2008 letter informing Veteran that service medical records are unavailable. In his January 2006 claim for VA compensation, the Veteran reported that he suffered from scoliosis prior to joining the Army, but was unaware of his disorder. The Veteran reported that fellow servicemembers would ask him about the "knot" on his back and would call him "hunchback." The Veteran reported that while in service, he thought that back pain was "normal." The Veteran further contends that military service aggravated his scoliosis. In a February 2008 correspondence from Dr. F.H., the doctor noted that the Veteran suffers from chronic low back pain due to spinal stenosis and bilateral lumbar nerve root compression. Dr. F.H. further opined that he believed that the Veteran's back pathology was directly due to aggravation of the underlying disc disease associated with significant roto-scoliosis due to the physical stress during service, especially marching in full combat gear. Dr. F.H. opined that it was "much more likely than not" that the Veteran's current spine disability was directly aggravated due to military duties. The Board notes that the opinion from Dr. F.H. did not include a physical examination of the Veteran's spine and did not provide a supporting rationale for the opinions stated. In an April 2010 private examination, Dr. J.B. diagnosed the Veteran with cervical, thoracic, and lumbar spondylosis with radiculopathy, lumbar spine stenosis, and adolescent idiopathic scoliosis. Dorland's Medical Dictionary defines idiopathic as "unknown cause or spontaneous origin." See Dorland's Illustrated Medical Dictionary 912 (32nd ed. 2012). The Board finds that there are complex medical questions presented in this case which are not fully addressed by the evidence of record. The Board notes that no VA or private medical report is of record with an etiology opinion and supporting rationale which specifically address the question of whether the Veteran's spine disorder was congenital, preexisted service, and/or was caused by or aggravated by the Veteran's military service. For these reasons, the Board finds that medical opinions are needed. Accordingly, the issues of service connection for a back disorder claimed as scoliosis, spinal stenosis, arthritis, and sciatica is REMANDED for the following action: 1. The RO should schedule the Veteran for a VA spine examination. The VA examiner is requested to review all pertinent records associated with the claims file and the Virtual VA electronic file. The VA examiner should identify all current spine disorders by diagnosis and offer the following opinions: (a) For each of the spine disabilities diagnosed, the VA examiner should state whether the Veteran's spine disabilities are acquired or congenital. If a congenital disorder exists, the examiner should state whether it is a disease or defect (Note: A disease is capable of improvement or deterioration while a defect is static.) (b) If a congenital disease is present, the examiner should render a medical opinion as to whether the congenital disease permanent worsened beyond normal progress during the Veteran's military service, to include due to marching with full combat gear. (c) If there was permanent worsening of a congenital disease during service, was the worsening consistent with the natural progress of the disease, or was the worsening beyond the natural progress of the disease? (d) If a congenital defect is present, the examiner should render a medical opinion as to whether it is at least as likely as not that there was a superimposed disease or injury during military service that resulted in additional disability. (e) If an acquired (non-congenital) disorder exists, the VA examiner should state whether there is clear and unmistakable (obvious and manifest) evidence that the Veteran's spine disabilities existed prior to the period of active duty service in September 1971. (f) If it is the opinion that the Veteran's acquired spine condition(s) did pre-exist service, were the spine condition(s) clearly and unmistakably not aggravated (permanent worsening beyond normal progress) by any of the Veteran's periods of active duty, to include the reported marches with full combat gear? In responding to these questions, the examiner should note that temporary or intermittent flare-ups of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, in contrast with symptoms, has worsened. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. (g) If the answer to (f) above is negative, the Veteran is presumed sound at service entrance. Therefore, is it more likely than not (i.e., probability greater than 50 percent), that any current spine disability is etiologically related to any incident of active duty, to include the Veteran's reported marches with full combat gear. The VA examiner is requested to provide a rationale for any opinion provided. In the report, the examiner should refer to all medical and lay evidence of record used in making the conclusions. If the examiner is unable to answer the questions presented without resort to speculation, he or she should so indicate the reason. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue of service connection for service connection for scoliosis, spinal stenosis with arthritis and sciatica should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and representative an appropriate supplemental statement of the case, and should afford them the appropriate time period for response. 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). _________________________________________________ J. PARKER 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).