Citation Nr: 1318465 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 08-03 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a chronic back disability, claimed as residuals of a back injury, for the purpose of receiving accrued benefits. 2. Entitlement to a compensable rating for service-connected pneumonia, for the purpose of receiving accrued benefits. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David S. Ames, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. He died in January 2012, and the appellant is his surviving spouse. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania (RO). This case was remanded by the Board in June 2009 and February 2010 for additional development. In a December 2010 decision, the Board denied the claim of entitlement to service connection for a chronic back disability, claimed as residuals of a back injury. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). After the appeal was filed, but before it was heard, the Veteran died and his surviving spouse was substituted as the claimant. In May 2012, the Court vacated the Board's December 2010 decision and remanded the claim for readjudication. The issue of entitlement to a compensable rating for service-connected pneumonia, for the purpose of receiving accrued benefits, is addressed in the Remand portion of the decision below and is remanded to the RO via the Appeals Management Center, in Washington, DC. VA will notify the appellant if additional action is required on her part. FINDING OF FACT The Veteran's chronic back disability is the result of a congenital defect that pre-existed his entry into active duty, with no inservice superimposed disease or injury, and degenerative joint disease of the thoracic and lumbar spine was not shown within one year of service separation. CONCLUSION OF LAW The Veteran's chronic back disability was not incurred in or aggravated by active military service and arthritis may not be presumed to have been so incurred, for the purpose of receiving accrued benefits. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1153, 5121 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.1000 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Substitution At the time of his death, the Veteran had a pending appeal to the Court regarding the Board's December 2010 decision which denied service connection for a chronic back disability, claimed as residuals of a back injury. In addition, the Veteran also had a pending appeal of the claim of entitlement to a compensable rating for his service-connected pneumonia. While the Veteran never specifically perfected an appeal as to the rating assigned for his pneumonia, a notice of disagreement to the rating assigned for his pneumonia was received by the RO in October 2011. Substitution in an appealed case requires a Notice of Disagreement to have been filed prior to the appellant's death. 38 U.S.C.A. § 5121A. When a veteran has claims pending at the time of his death, his surviving spouse may be paid periodic monetary benefits, which were due and unpaid, to which he was entitled at the time of his death based on existing ratings or decisions, or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The statute regarding accrued benefits claims was amended on October 10, 2008. Veterans' Benefits Improvement Act of 2008, Pub. L. No. 110-389, § 212 (2008). Section 212 created a new statute, which provided that if a claimant died while a claim or appeal for any benefit under a law administered by VA was pending, a living person who would be eligible to receive accrued benefits due to the claimant may, not later than one year after the date of the death of the claimant, request to be substituted as the claimant for the purposes of processing the claim to completion. See 38 U.S.C.A. § 5121A. The new statute allows a person who could be considered an accrued benefits claimant to substitute for a deceased claimant to continue adjudication of the deceased claimant's claim. The provisions of the new statute apply with respect to the claim of any claimant who dies on or after October 10, 2008. See Pub. L. No. 110-389, § 212, 122 Stat. 4145, 4151 (2008). In this case, the Veteran died in January 2012. While there is no evidence of record that the appellant filed a proper claim for substitution, the Court's May 2012 Memorandum Decision found that the appellant had standing because she was eligible for accrued-benefits claims. Accordingly, the Board finds that the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. 38 U.S.C.A. § 5121A. Chronic Back Disability The Board notes at the outset that, in accordance with the Veterans Claims Assistance Act of 2000 (VCAA), the VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). With respect to the service connection claim on appeal, generally, the notice requirements of a service connection claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that the VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). During the course of the appeal, § 3.159(b) was revised and the requirement that the VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The service connection claim decided herein stems from the Veteran's application to reopen that was filed in May 2006. VCAA notice letters addressing the applicability of the VCAA to the service connection claim at issue and of the VA's obligations to the Veteran in developing the claim were dispatched to the Veteran in July 2006, and June 2009, which collectively address the issue on appeal and satisfy the above-described mandates, as well as the requirements that the Veteran be informed of how the VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). To the extent that there is any defect in the timing of the notice, as the notices issued after the February 2007 rating decision on appeal were followed by subsequent readjudications via several rating decisions/supplemental statements of the case, most recently in October 2010, any defective notice error is deemed to have been "cured" by these readjudications. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Furthermore, the appellant has not made any assertion that there has been any defect in the timing or content of the VCAA notification letters associated with this claim. The VA also has a duty to assist the claimant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the claimant in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). The VA informed the Veteran of its duty to assist in obtaining records and supportive evidence. In this regard, the Board observes that pursuant to actions taken by the RO in compliance with the instructions of the two prior remands that occurred during the course of this appeal, the Veteran's service treatment records and relevant post-service VA and private medical records for the period spanning 1965 to 2009 have been obtained and associated with the claims file. In any case, the appellant has not indicated that there are any outstanding relevant post-service medical records or other pertinent evidence that must be considered in this current appeal with respect to the issue decided on the merits herein. The Veteran was also afforded VA examinations, nexus opinions, and clarifying addendums to nexus opinions in September 2009 and May 2010, which determined his orthopedic diagnosis regarding his low back and specifically addressed the relationship between this diagnosis and military service, including his history of having sustained blast injuries during combat service. While the appellant has argued that the Board erred by not providing the Veteran with a physical examination instead of the May 2010 medical opinion, in May 2012 the Court specifically found that a second physical examination was not required. Furthermore, the opinions included adequate discussion of the opining examiner's clinical observations and a rationale to support these findings and conclusions within the context of the Veteran's relevant clinical history as contained within his claims file. Thus, except as discussed below, the September 2009 and May 2010 nexus opinions and medical examinations are collectively deemed to be adequate for adjudication purposes for the matter at issue. See Barr v. Nicholson, 21 Vet. App. 303 (2007). In addition, as noted by the Court in May 2012, as the claim on appeal is now before the Board as an accrued benefits claim, the Board would be legally barred from considering any additional evidence added to the claims file after the date of the Veteran's death. Hyatt v. Shinseki, 566 F.3d 1364, 1370 (Fed. Cir. 2009). As such, any additional attempts by the Board to further develop the claims would be pointless. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of his service connection claim decided herein, and thus no additional assistance or notification is required. The appellant has suffered no prejudice that would warrant a remand, and her procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection involves many factors, but basically means that the facts, shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if pre-existing such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. 38 C.F.R. § 3.303(a) (2012). The Board notes that every veteran who served in the active military, naval, or air service after December 31, 1946 is taken 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 the examination, acceptance, and 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, 1137 (West 2002). To rebut the presumption of soundness for conditions not noted at entrance into service, VA must show by both clear and unmistakable (obvious and manifest) evidence that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. VAOPGCPREC 3-03 (July 16, 2003), 70 Fed. Reg. 23027 (May 4, 2005); Wagner v. Principi¸ 379 F.3d 1089, 1096 (Fed. Cir. 2004). Where a veteran served 90 days or more during a period of war or during peacetime service after December 31, 1946, and a chronic disease such as arthritis manifests to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c). VA's General Counsel has noted that the term "disease" as used in 38 U.S.C.A. §§ 1110 and 1131 and the term "defect" as used in 38 C.F.R. § 3.303(c) are mutually exclusive, so that service connection may be granted for diseases, but not defects, of a congenital, developmental, or familial origin. VAOPGCPREC 82-90 (July 18, 1990). Compensation is payable, however, for injury superimposed upon a congenital defect. Id. The distinction between "disease" and "defect" is also important for purposes of applying the presumption of soundness under 38 U.S.C.A. § 1111. The presumption of soundness under 38 U.S.C.A. § 1111 does not apply to congenital/developmental defects as they are not deemed "diseases or injuries" within the meaning of 38 U.S.C.A. §§ 1110 and 1131. Monroe v. Brown, 4 Vet. App. 513, 515 (1993); Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003). With chronic disability or disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307 (2012)) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any notation of treatment for a back injury or manifestation of back pain in service will permit service connection for arthritis of the spine, degenerative joint and disc disease, or other chronic musculoskeletal disability, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition as identified in 38 C.F.R. § 3.309(a) and noted during service (or in the presumptive period) is not, in fact, shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Service connection may be granted for any disease diagnosed after discharge from active duty when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). However, congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency are not considered to be diseases or injuries within the meaning of applicable laws and regulations for purposes of establishing entitlement to VA compensation. 38 C.F.R. § 3.303(c) (2012); see Sabonis v. Brown, 6 Vet. App. 426 (1994). The Veteran's service entrance examination report dated in February 1943 shows that his musculoskeletal system was normal on clinical evaluation. In May 2006 he filed a claim of entitlement to service connection for a chronic back disability. In his written statements in support of his claim and in his oral hearing testimony, he contended that his back disability was the result of a stateside training injury in service, in which he sustained a back injury while sparring with an instructor during a judo or jujitsu demonstration, and two combat-related incidents in which he suffered a contusion injury of the right side of his back while jumping into a foxhole during an enemy artillery bombardment in November 1944 while in France, and a lumbosacral sprain injury when he fell during another enemy artillery bombardment in December 1944 while in Luxembourg. In this regard, the history of a back injury sustained during close-combat training is corroborated and substantiated by three written "buddy statements" from fellow servicemen who served with the Veteran and witnessed the injury. The Veteran's reported history of sustaining back injuries during two separate bombardment incidents in November and December 1944 is substantiated by the Veteran's service treatment records, which document the aforementioned injury episodes. Specifically, treatment in November 1944 for a moderately severe contusion injury of his right back and kidney that was sustained when he fell into a foxhole during an enemy shelling, and treatment in December 1944 for an acute and slight sprain injury of his lumbosacral region, which was characterized as being mild. Some spasm and tenderness of his low back muscles were observed at the time, with marked limitation of back motion. Although the aforementioned history was noted on his service separation examination report in January 1946, his musculoskeletal system was normal on clinical evaluation on discharge from active duty. At the time of his death, the Veteran was service connected for residuals of pneumonia and a left knee scar, residual of a shell fragment wound, both of which were rated as noncompensably disabling. Pertinent post-service medical records show that on VA examination in May 1965, the Veteran related the aforementioned history of back injury in service during basic training and combat. On objective examination, he displayed a normal gait, carriage, and posture, and had full, normal range of motion of his trunk. Although some percussion tenderness was noted in his lumbosacral region, close physical examination revealed no evident musculoskeletal abnormalities. Lumbar X-rays revealed slight scoliosis and a minor congenital anomaly at the lumbosacral junction consisting of a transitional vertebra with left-sided sacralization of the transverse process. VA examination in January 1977 shows that the Veteran complained of mid and low back pain and related a history of a contusion injury to his back during active duty. X-rays revealed normal thoracic spine and that his L-5 vertebra had developed into a transitional vertebra, manifested by broadening of the left transverse process with pseudo-arthrosis formation between the left transverse process of L-5 and the superior border of the sacrum. Otherwise, no other abnormalities of the lumbosacral spine were clinically demonstrated. The impression was a minor congenital anomaly consisting of transitional L-5 with unilateral left-sided pseudo-arthrosis formation. The orthopedic diagnoses included residuals of contusion of the right lumbar area. The transcript of a March 1977 RO hearing shows, in pertinent part, that the Veteran related a history of back contusion injuries sustained during active service from training and combat. Also testifying at this hearing was George A. Zuck, M.D., who testified that he was the Veteran's personal private physician from prior to when he was drafted into military service in 1943 and that he continued to treat the Veteran for several years following his discharge from active duty in 1946. Dr. Zuck reported that he was retired from medical practice as of 1971 - 1972, and that he destroyed all of his patients' medical records upon retiring. Dr. Zuck also testified that he treated the Veteran in 1946 for pain in his lumbar region and observed some limitation of motion on lateral bending to the right with mild lumbar muscle spasm. His final examination of the Veteran in 1971 prior to retiring from medical practice also noted lumbar muscle spasm on the right side, in the area of his kidney. Private medical records dated in 1998 - 1999 reflect that the Veteran, who had a history of chronic low back complaints, sprained his back while gardening and underwent surgery in July 1998 for a lumbar discectomy and medial facetomy on the left aspect of his L4-5 vertebrae for treatment of left leg sciatica and low back pain. Of note is a July 1998 treatment report from David R. Deitz, M.D., who made the following statement: [With regard to his left lower extremity sciatica and low back pain, the Veteran reports that] he did have this problem begin 50 years ago. He got knocked down a few times in the army secondary to exploding ordinates (sic) in WWII. He states he always took falls and injuries on his left side and he is pretty convinced that that was the start of his problem and frankly he makes a pretty good argument. (emphasis added) In a July 2006 statement, his private physician, Richard E. Anderson, M.D., related his treatment history of the Veteran. According to Dr. Anderson, he treated the Veteran from April 1990 to November 2003. The Veteran came for treatment of low back pain in April 1990 that he reportedly had after active duty due to a "service injury." Back pain was intermittent in 1990 and quiescent in 1993, but in September 1994 the symptoms became more frequent after he strained himself lifting some crates. X-rays at the time revealed normal disc spaces with slight scoliosis and a congenital transitional L5 vertebra, that Dr. Anderson found to be similar to the radiographic findings of a prior May 1965 VA examination report. In 1994, the low back symptoms responded to medication and physical therapy. Then, in 1998, the Veteran "sprained his back gardening" but X-rays in June 1998 revealed identical findings to the prior X-ray study of 1994. In July 1998, a neurosurgeon diagnosed the Veteran with herniated nucleus pulposus at L4-5 and mild L5-S1 stenosis, described as a disc protrusion with compression of the dural sac and nerve root of L4-5 on the left, which caused low back and left lower extremity symptoms. In July 1998, the Veteran underwent spinal surgery, during which a microlumbar discectomy with medial facetomy was performed at the affected site. When seen by Dr. Anderson in November 2002, May 2003, and September 2003, the Veteran's low back and left leg were asymptomatic. Dr. Anderson then related the following opinion: As to the matter of disability, [the Veteran's low back pain] evolving to a laminectomy in 1998 was related to a congenital predisposition to [degenerative disc disease] of the L5 spine aggravated by a history of a low back injury in the service and aging. VA medical records dated 2006 - 2009 show that the Veteran received treatment for complaints of chronic low back pain that was associated with an osteoarthritis diagnosis. In September 2009, the Veteran was examined by a VA physician, who reviewed the Veteran's relevant clinical history as part of the examination and diagnosed him with degenerative joint disease of the thoracic and lumbar spine with sacralization of the left transverse process of the L5 vertebra. At the time of this examination, the Veteran was 86 years old. He then presented the following nexus opinion: The question is whether these [diagnosed] disabilities are fully or partially due to an in-service back injury. I do not believe that the disabilities of [the Veteran's] mid and low back. . . are due to in-service back injury. His records do detail a service injury that was acute and however this healed without residual deficits. [The Veteran] had an acute episode of pain which was relieved with nonoperative modalities and from which he had no residual deficit. He was able to return to all of his activities. . . after leaving the military. What [the Veteran] has is a congenital problem which is sacralization of the left transverse process of L5. The other issue is an age problem which is arthritis in his thoracic and his lumbar spine which would be common in someone who is 86 years old who has led an active life. So on the one hand, I attribute the congenital issue as a birth issue and the arthritis is really an age and activity issue. Arthritis sets in someone who has been active and lived a long life as he has but it cannot be attributed to a single episode that occurred almost 60 years ago. This is especially the case since the episode in discussion was a Judo incident where he was thrown to the side and knocked down. But again, he did not have any residual deficit from this and he did make a full recovery from this. So the arthritis in [the Veteran's] thoracic and his lumbar spine and this congenital abnormality of his L5 transverse process are not due to his in-service back injury. In a May 2010 addendum, the VA physician who presented the above opinion re-reviewed the appellant's claims file and pertinent clinical history and then presented the following clarifying opinion: [The Veteran] is an 86-year-old gentleman with mid and low back pain. He underwent a laminectomy in 1998. He has had no surgeries since then and no injections since then. [The Veteran] did suffer a combat-related contusion and sprain injuries both in November and December of 1944, as well as [a] judo incident where [he was] slammed. . . into the mat, all of which happened in the service. I am asked whether it is [at] least as likely as not that [the Veteran's] low back disability represents chronically disabling residuals related to these in-service injuries. Review of [the Veteran's] radiographs shows a sacralization of the left transverse process of L5. I think that this is the main issue here with him. This sacralization means that there is an abnormal connection between his sacrum and his 5th lumbar vertebra. This will alter the mechanics of his entire low back given that when a segment is fused, adjacent motion segments undergo more stress and are more likely to wear out. The strains that he is talking about when he got slammed into the mat and the two incidents of contusions in November of 1944 and in December 1944 never resulted in a fracture or an acute type of trauma that was devastating to him. These were strains. Strains are muscle injuries. Strains get better and, in this case, I think they did get better. His surgery happened fifty four years following these incidents so the fact that the surgery he had in 1998 was fifty four years after the in-service traumas indicate that there is just too much of a time gap there to reliably connect them. I think that the sacralization of the 5th lumbar vertebra, as well as his advanced age, as well as the altered mechanics of his lumbar sacral spine due to the congenital fusion all have produced the arthritis that is now giving him symptoms. So, I would say that it is unlikely that the veteran's current low back disability represents chronically disabling residuals related to the in-service injuries. I have been asked whether the congenital sacralization was aggravated by these in-service injuries. Sacralization means fusion, meaning that two bones are joined. What happened to him [in service] are strains, meaning muscle injuries. You cannot worsen a fusion. In other words, you cannot aggravate a bone-to-bone union, which is what sacralization is. I think the injuries that he had were strains and the fact that he made it fifty four years before needing any surgical intervention indicates that the pathology of his low back condition is separate and distinct from these in-service injuries. So, I think it is unlikely that the congenital sacralization was aggravated by the in-service injuries. I am asked about his paraspinal muscle spasm on the right. Once again, the in-service injuries were strains, which are muscle injuries. Muscle injuries generally heal. My impression from my examination was that although I detected paraspinal muscle spasm on physical examination, this was not overwhelmingly disabling to him. His main disabling symptom is his osteoarthritis and sacralization of his L5 transverse process. Again, given the length of time that has passed, fifty four years, between his injury and his surgery, I don't feel that his paraspinal muscle spasm is permanently caused by his in-service injuries. I think that his muscle spasm is likely compensating for his arthritis in his back and for his congenital fusion. The biomechanics of his low back are permanently altered since birth. I think the muscle spasm is coming from these issues, his arthritis and his sacralization, and not from an injury that happened fifty four years ago. So, I think that it is less likely than not that the paraspinal muscle spasm on the right represent a chronic disability related to the in-service back injuries. The Board has considered the evidence reported above. The Board finds that the Veteran's account of sustaining back injuries in service is credible and supported by objective clinical, documentary, and lay evidence, and that, as he has received a diagnosis of arthritis, his account of having experienced chronic back pain after active duty is not only within his competence to report but also credible. 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the factual determination that the Board must make is whether the chronic back symptoms after service represent a continuation of the in-service back injuries. In this regard, while the Veteran was competent to report his history of perceived subjective back symptoms, as the record shows that he was not a trained medical professional, he lacked the expertise to etiologically link these perceived symptoms to the specific incidents of injury in service, or otherwise link his orthopedic diagnoses regarding his back to these specific in-service incidents of injury. Such opinions fall outside the realm of common knowledge of a lay person. His statements in this regard are thus not entitled to any probative weight towards resolving this question. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). At this juncture, the Board notes that, notwithstanding the finding of a normal spine on service entrance examination in 1943, the post-service medical evidence clearly establishes that the Veteran had a congenital spinous defect manifested by sacralization of his L5 vertebra that is, by its very nature as a congenital condition, not subject to service connection under 38 U.S.C.A. § 1110. As a defect, the concept of presumption of soundness or aggravation of pre-existing disability has no applicability in this case. Monroe, 4 Vet. App. at 515; Quirin, 22 Vet. App. at 397; Terry, 340 F.3d at 1385-86. However, the Board must also consider whether there is superimposed disease or injury during military service. Clinical evidence that tends to be supportive of the appellant's claim for service connection for a chronic back disability includes the March 1977 testimony of Dr. Zuck, who reported that he treated the Veteran for complaints of lumbar back pain beginning in 1946 (i.e., the year he was discharged from service) and who also noted that the Veteran related a history of back contusion injuries during military service. Dr. Zuck's testimony is probative of the appellant's claim in that it shows treatment for the Veteran's back complaints immediately after service, thus indicating continuity of symptomatology that is proximate to his history of back injuries in service, but it does not actually express an opinion drawing a specific link between the two. Also somewhat supportive of the appellant's claim is the July 1998 treatment report of Dr. Deitz, who, while not necessarily offering an express concurrence with the Veteran's factual assertion that his low back symptoms were directly due to his back injuries in service, acknowledged that the Veteran made a persuasive argument in this regard. This acknowledgement, however, is not the same as an actual nexus opinion on the part of Dr. Deitz as he does not take the next step and actually express a concurring opinion or otherwise expressly link the Veteran's back disability to his reported history of back injuries during active duty. The July 2006 statement of Dr. Anderson, in which he opined, in pertinent part, that the Veteran's history of a low back injury in service was a contributing factor aggravating his congenital predisposition to degenerative disc disease of the lumbar spine, remains the only objective medical opinion expressly drawing a link between the Veteran's in-service back injuries and his back disability. The Board finds that the above evidence supporting the appellant's claim, however, is outweighed by the September 2009 and May 2010 opinions of the VA examiner. The Board finds that the VA examiner's opinions have significantly greater probative value in addressing the question of the relationship between the Veteran's back disability and his military service than the aforementioned private opinion and statements, by virtue of being based on a thorough review of the Veteran's clinical history and the detailed rationale accompanying each opinion. The basic gist of the VA examiner's opinions, in summary, is that the Veteran's back injuries in service were muscle injuries that were acute and had completely healed and resolved during service without any chronic residual pathology. His back complaints after service were unrelated to service or to these in-service injuries as they were attributable to his congenital sacralization of his vertebral process at the L5 region that induced biomechanical changes in the functioning of his spine which, over time, progressively resulted in degenerative arthritic changes, disc disease with ultimate herniation of the L4-5 disc and associated sciatica necessitating surgery in 1998, and lumbar muscle spasm unrelated to the muscle injuries in service. The examiner further found no aggravation of the Veteran's congenital sacralization of his L5 vertebra by the in-service back injuries, as the injuries during active duty were acute soft tissue injuries that could not, by their nature, worsen a congenital bony defect, and in any case the muscle injuries in service had healed, and thus would not likely initiate an aggravatory process that would have taken 54 years to worsen to the point that it would eventually require surgical intervention. The May 2012 Court Memorandum Decision noted that there was a flaw in the VA examiner's September 2009 opinion with March 2010 addendum. Specifically, the examiner repeatedly referred to the Veteran's in-service injuries as "strains" while the Veteran's service medical records referred to them as "sprains." In this regard, the Court emphasized that strains and sprains are entirely different injuries with different medical definitions. As such, the Court found that the VA examiner's opinion was "inadequate to the extent that it was premised on" the finding that the Veteran's "in-service injuries did not cause his degenerative disc disease because those injuries were acute muscle strains of the low back that resolved prior to his discharge." Thus, the Board also finds that the VA examiner's opinion is inadequate to that extent. However, such a finding does not render the VA examiner's opinion inadequate as a whole. As noted by the Court, the VA examiner also supported his opinion with other rationales, including that the Veteran's degenerative changes and muscle spasms were more likely caused by the natural aging process and changes in the biomechanics of his low back caused by his congenital abnormality. The examiner also opined that the long period of time between the Veteran's 1998 microlumbar discectomy and his in-service injuries suggested that the two incidents were not related and that any residuals of the 1998 surgery were therefore not likely due to the in-service injuries. The Board finds that these rationales are sufficiently strong to warrant giving the VA examiner's opinion greater probative weight than the March 1977 testimony of Dr. Zuck, the July 1998 treatment report of Dr. Deitz, and the July 2006 statement of Dr. Anderson. As noted above, the March 1977 testimony and July 1998 report do not actually provide medical nexus opinions. While the July 2006 statement does provide such a medical opinion, no rationale was provided for the opinion. Dr. Anderson simply recounted the Veteran's medical history after 1990, and then made a conclusion without explanation. While the partial inadequacy of the VA examiner's opinion certainly makes it less probative than it otherwise would have been, the fact remains that it gave multiple reasons for the medical opinion provided. At least two of these rationales remain adequate despite the examiner's error in characterizing the Veteran's in-service injuries as strains rather than sprains. The Board finds that an opinion based on a partially adequate rationale warrants greater probative weight than an opinion without any rationale. In this regard, the Board also notes that the Court appeared to concur in this weighing, stating that the adequate "aspects of the VA examiner's opinion . . . do tend to preponderate against a finding that the in-service superimposed injuries caused or contributed to [the Veteran's] low back condition. Therefore, the Board concludes that the inservice injuries do not constitute superimposed injuries, as the Board finds that the VA examiner's opinion is determinative of this question, concluding that the Veteran's post-service back disability was not related to his in-service injuries. As arthritis of the thoracic and lumbar spine was not shown until many years later, a basis for a grant of service connection on a presumptive basis therefore is not presented. Degenerative disc disease is also not shown during service or until many years thereafter and has not been found to be related to service. The Board finds, as a factual matter, that the rationale-supported opinions presented by the VA examiner in 2009 and 2010 outweigh the 2006 opinion of Dr. Anderson, whose statement that the Veteran's in-service back injury had contributorily aggravated his congenital L5 sacralization is conclusory and unaccompanied by any supportive rationale. Therefore, in view of the foregoing discussion, the Board finds that the weight of the evidence is against the appellant's claim of entitlement to service connection for a chronic back disability, for the purpose of receiving accrued benefits, and the appeal must be denied. Because the evidence in this case is not approximately balanced with respect to the merits of the claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board regrets that it could not arrive at a favorable conclusion for the appellant regarding her appeal, she is urged not to perceive the denial as being in any way intended as a gesture of disrespect for the Veteran's honorable and heroic service in the defense of our nation. It is the objective facts of the case and the application of the law, and not considerations of equity, that are determinative of the outcome of this appeal. The VA fully acknowledges, honors, and respects the Veteran's individual valor during his service in the armed forces of the United States. ORDER Service connection for a chronic back disability, to include residuals of a back injury, for the purpose of receiving accrued benefits, is denied. REMAND An October 2011 rating decision denied entitlement to a compensable rating for the Veteran's service-connected pneumonia. As noted above, the RO received a notice of disagreement as to the rating assigned for the Veteran's pneumonia in October 2011. An October 2011 letter from the RO states that this statement was accepted as an appeal of the rating assigned for his service-connected pneumonia Accordingly, the Board finds that the October 2011 statement from the Veteran constitutes a timely notice of disagreement with the rating assigned for his service-connected pneumonia. 38 C.F.R. § 20.201 (2012). The filing of a notice of disagreement initiates the appeal process. Godfrey v. Brown, 7 Vet. App. 398 (1995). As discussed above, while the Veteran died in January 2012, the Board has found that the appellant has been substituted as the claimant for the purposes of all claims that were pending at the date of the Veteran's death. VA has not yet issued a statement of the case as to the issue of entitlement to a compensable rating for service-connected pneumonia, for the purpose of receiving accrued benefits. 38 C.F.R. § 19.26 (2012). Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: Issue a statement of the case on the issue of entitlement to a compensable rating for service-connected pneumonia, for the purpose of receiving accrued benefits. If the appellant perfects an appeal, return the case to the Board. 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 or the United States Court of Appeals for Veterans Claims for development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs