Citation Nr: 1326624 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 11-22 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for degenerative joint disease of the lumbar spine, to include as secondary to a service-connected knee disability. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Christine C. Kung, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1981 to November 1981 and from March 1984 to August 1986. This matter comes on appeal before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. 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 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. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran contends that a low back disability began in service, or is related to a service-connected knee injury or disability. An April 2009 VA MRI reflects disc disease at L4-5 and L5-S1 and congenital lumbar canal narrowing. Congenital or developmental defects are not diseases or injuries as such within the meaning of applicable law, 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); VAOPGCPREC 82-90 (interpreting that a disease considered by medical authorities to be of congenital, familial (or hereditary) origin must, by its very nature, have pre-existed a claimant's military service). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. See Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993), citing Hunt v. Derwinski, 1 Vet. App. 292 (1991); VAOPGCPREC 82-90. While a February 2010 VA examiner diagnosed degenerative disc disease and joint disease of the lumbar spine and provided an opinion addressing the question of whether a claimed lumbar spine disability is secondary a service-connected left knee disability, the opinion did not address the question of direct service connection. Service treatment records reflect treatment for back pain, diagnosed as back strain in August 1985. Additionally, during the pendency of this appeal, the Veteran was service-connected for a right knee disability. Based on findings in service, and findings showing a current congenital lumbar spine defect, and the more recent grant of service connection for a right knee disability, the Board finds that a supplemental medical opinion in necessary to address both direct and secondary service connection. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should refer the case to the VA examiner who conducted the February 2010 VA examination (or a suitable substitute) for a supplemental medical opinion regarding service connection for the lumbar spine. Another examination is not required; however, if the VA examiner indicates that he or she cannot respond to the Board's question without examination of the Veteran, such should be afforded the Veteran. The record should be made available for review in connection with this request. The examiner should identify any currently diagnosed lumbar spine disability or disabilities, to include any congenital lumbar spine defect, and should offer the following opinions: a. Is it at least as likely as not (a 50 percent or greater probability) that a currently diagnosed lumbar spine disability that began during service or is otherwise linked to some incident in service? b. If arthritis of the lumbar spine is found, is it at least as likely as not that arthritis was manifest to a compensable degree within one year after discharge from active service? 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. c. If the Veteran a congenital lumbar spine defect is identified, is it at least as likely as not (a 50 percent or greater probability) that such congenital defect increased in severity in service, or was a disease or injury superimposed on the preexisting congenital spine defect during active service? In the supplemental opinion, the examiner should address relevant findings of record, to include treatment for back strain in service and VA MRI evidence of congenital lumbar canal narrowing. d. During the pendency of the appeal, the Veteran was service-connected for a right knee disability, in addition to the service-connected left knee disability. Is it at least as likely as not that a diagnosed lumbar spine disability is proximately due to, the result of, or was permanently worsened in severity (aggravated) by a service-connected right and/or left knee disability? If the opinion is that there is aggravation, to the extent that is possible, the examiner is requested to provide an opinion as to approximate baseline level of severity of the nonservice-connected condition before the onset of aggravation. The examiner should note that "aggravation" is defined for legal purposes as a worsening of the underlying condition versus a temporary flare-up of symptoms. The examiner should provide a rationale for his or her opinion with reference to the evidence of record. Citation to medical authority/treatise would be helpful. The examiner should provide a rationale for his or her opinions with reference to the evidence of record and should provide a discussion of the facts and medical principles involved. 2. When the development has been completed, the RO/AMC should review the case again based on the additional evidence. If the benefit sought is not granted, the RO/AMC should furnish the Veteran and his representative with a Supplemental Statement of the Case, and should give the Veteran a reasonable opportunity to respond before returning the record to the Board for further review. The Veteran is advised to appear and participate in any scheduled VA examination(s), as failure to do so may result in denial of the claims. See 38 C.F.R. § 3.655 (2012). The Veteran 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. J. ALIBRANDO 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).