Citation Nr: 1325250 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 09-27 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from December 1965 to December 1968. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 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 The Veteran asserts that his current lumbar spine disability, diagnosed as traumatic arthritis of the lumbar spine, had its onset in service. Specifically, the Veteran contends that he injured his low back in service which progressed and contributed to his current lumbar spine disability. The Veteran's service treatment records indicated that no disability of the back was identified upon examination prior to the Veteran's enlistment into service in November 1965, and clinical evaluation of the back was normal. A Report of Medical Board dated in July 1966 indicates that the Veteran was admitted to U.S. Naval Hospital, San Diego, California in April 1966 for evaluation of right back pain. Examination at that time revealed some right-sided para-spinal muscle spasm. He was discharged to full duty. He continued to complain of right back pain and was seen in consultation by the Orthopedic Department. The Veteran was readmitted for further evaluation. Upon admission, the Veteran was entirely asymptomatic and stated that he had had no further pain for the previous several days. Physical examination upon admission was entirely within normal limits. The Veteran was seen in consultation by the Orthopedic Department with the following notation, "7 June 1966 Orthopedic Clinic - The patient referred for evaluation by BuMed. History of fall from truck in March 1966 with back pain following which has now cleared completely. At present the patient has no complaints regarding back and has but one episode of prior back pain at age 12. Back examination today is considered within normal limits with full range of motion and no tenderness. X-rays show sacralization of L5 vertebra with spina bifida occulta L5 arch. Impression: Asymptomatic back with X-ray evidence of congenital anomalies. This is not disqualifying for full duty. ..." A Diagnosis of Spina Bifida Occulta L-5 was rendered, and it was determined that it "existed prior to entry, not line of duty, not misconduct." A lumbosacral stain was also diagnosed in service. Subsequent in-service physicals revealed normal findings on evaluation of the back. The Veteran underwent VA examination in June 2008 at which time a diagnosis of traumatic arthritis of lumbar spine with radiculopathy to the left leg. In July 2008, an opinion was requested to determine whether the Veteran's lumbar spine arthritis was at least as likely as not the result of or caused by the Veteran's fall in military service. That same month, a VA physician provided a medical opinion. The physician noted that in July 1966, the Veteran had an acute paraspinal muscle spasm which was an acute and self-limiting condition and that at that time, x-ray of the lower back was done and incidentally he was diagnosed with spina bifida occulta (a congenital anomaly). The physician also noted that subsequently, the Veteran was diagnosed with asymptomatic back with x-ray evidence of spina bifida occulta L5 arch. The physician opined, This is congenital anomalies (sic), and due to this anomalies (sic), the veteran has no aggravation during active service, rather than it is a normal progression of the disease. Therefore, the veteran's current diagnosis of traumatic arthritis is more likely than from some other unknown cause or causes rather than congenital spina bifida. Because the examiner did not provide an opinion as to whether the Veteran's current lumbar spine arthritis was at least as likely as not related to the Veteran's fall in service, the Board finds that it has no alternative but to remand this issue for an additional medical opinion. Moreover, the nature of the congenital anomaly must be determined as set forth below. VA's Office of General Counsel has distinguished between congenital/hereditary diseases and defects, emphasizing that the former is capable of improvement or deterioration while the latter is static. VAOPGCPREC 82-90 (O.G.C. Prec. 82-90). A "defect" is defined as an imperfection or structural abnormality, while a "disease" is any 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. Id. Service connection can be established if a congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Service connection can also be established if a congenital disease was permanently aggravated (worsened) by the Veteran's military service and not due to the natural progress of the disease. Whether the Veteran's Spina Bifida Occulta L-5 is a developmental defect or disease is a medical question that cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) [the Board is prohibited from exercising its own independent judgment to resolve medical questions]. In this case, although the July 2008 VA physician noted that the spina bifida was a congenital anomaly and a normal progression of the disease, the physician did not specifically provide an opinion whether the spina bifida was a congenital disease as opposed to a congenital defect. Notwithstanding the fact that following the development of this claim, analysis may no longer be necessary as to whether pre-existing spina bifida occulta was clearly and unmistakably aggravated by service [that is, should the Veteran's spina bifida be medically categorized as a defect, thus precluding an award of service connection], the Board believes that for the sake of economy if such disability does in fact constitute a preexisting developmental disease, clarification as to whether in-service aggravation clearly and unmistakably occurred should be obtained. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be requested to indicate if he has received any VA or non-VA medical treatment for his lumbar spine disorder that is not evidenced by the current record. If so, the Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. These records should then be obtained and associated with the claims folder. The Veteran should be advised that he may also submit any evidence or further argument relative to the claim at issue. 2. The Veteran's claims file should be referred to an appropriate physician for an addendum to the June 2008 and July 2008 VA examination reports. If the reviewing physician determines that another examination of the Veteran would be useful in providing the opinions requested below, such an examination should be scheduled. * The examiner should determine whether the Veteran's spina bifida occulta diagnosed in service is a congenital disease or defect. * If a congenital defect is present, the examiner should render a medical opinion as to whether the evidence shows that it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. * If a congenital disease is present, the examiner should render a medical opinion as to whether the evidence shows it was not aggravated (worsened) by the Veteran's military service. If there was worsening, was this due to the natural progress of the disease? * The examiner should determine whether it is at least as likely as not that the Veteran's lumbar spine traumatic arthritis (or any other current, chronic lumbar spine diagnosis) was incurred in the Veteran's military service. Consideration should be given to the fall in service as well as post-service evidence of back treatment when working for UPS. It would be helpful if the examiner would use the following language, as may be appropriate: "more likely than not" (meaning likelihood greater than 50%), "at least as likely as not" (meaning likelihood of at least 50%), or "less likely than not" or "unlikely" (meaning that there is a less than 50% likelihood). The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. 3. The case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ MICHAEL D. LYON 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).