Citation Nr: 1327726 Decision Date: 08/29/13 Archive Date: 09/05/13 DOCKET NO. 06-06 689 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a low back disability, to include spina bifida and degenerative joint disease. REPRESENTATION Appellant represented by: Jill Mitchell, Attorney ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from November 1954 to October 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO in Houston, Texas now has jurisdiction of the Veteran's claims file. In January 2007, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. Pursuant to 38 C.F.R. § 20.707, the Veteran was advised in letters dated in April and May 2013, of his right to a second Board hearing before another judge and to let VA know whether he wanted a second hearing within thirty days of the date of the letter. As neither the Veteran nor his attorney responded, the right to a second hearing is deemed waived and the matter has been reassigned to the undersigned Veterans Law Judge. A transcript of the hearing before the prior Veterans Law judge is in the record. In July 2007, the Board remanded the claim for service connection for a low back disorder for further development. In a July 2008 decision, the Board denied the Veteran's claim for entitlement to service connection for a low back disability, to include spina bifida. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order in March 2009, the Court granted a Joint Motion for Remand and vacated the Board's decision for compliance with the instructions in the Joint Motion. In October 2009, the Board remanded this case to the RO for additional development. In May 2011, the Board denied the Veteran's claim for entitlement to service connection for a low back disability, to include spina bifida. The Veteran appealed the Board's decision to the Court. In a Decision dated in January 2013, the Court remanded the Board's decision for compliance with the instructions in the decision. The Board has reviewed both the Veteran's physical claims files and his Virtual VA file so as to insure a total review of the evidence. 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). 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 As noted, the Court remanded the Veteran's claim to the Board in a decision dated in January 2013. The Court directed the Board to obtain clarification and further clinical opinions from the VA examiner regarding the Veteran's claim for service connection for a low back disability. Accordingly, the Board is again remanding the Veteran's claim for service connection for a low back disability to include spina bifida. As the evidence indicates that the Veteran has also been diagnosed with degenerative joint disease of the lumbar spine, the issue has been addressed as set forth on the first page of the decision. Every person employed in the active military, naval, or air service shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to diseases or defects noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury 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(b) (2012). In the claim before the Board, there seems to be no dispute by the Veteran that his condition of spina bifida preexisted service. X-ray evidence both in service and after establishes that the Veteran has spina bifida occulta, a congenital condition. Blanchard v. Derwinski, 3 Vet. App. 300, 301 (1992); Firek v. Derwinski, 3 Vet. App. 145, 146 (1992). It was not, however, noted upon entrance into service. As such, although clear and unmistakeable evidence establishes that spina bifida occulta existed prior to service, in order to rebut the presumption of soundness for this condition, there must also be clear and unmistakeable evidence that the disability was not aggravated by service. 38 U.S.C.A. § 1111. Whether there is clear and unmistakeable evidence that the Veteran's pre-existing spina bifida disability was not aggravated by service remains at issue. VA's General Counsel has held that to rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. See VAOPGCPREC 3- 2003; see also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence (as likely as) standard. It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993).) The Veteran argues that service aggravated his low back disability caused by spina bifida. He has submitted evidence that his back was pushed or forced by instructors so he could touch his toes during basic training. Later, during a training exercise in Germany, the Veteran fell onto his back while carrying a recoilless antitank gun strapped across his back. He was treated in a medical tent before being sent to the U.S. Army Hospital in Frankfurt and then he was placed on a physical profile for the remainder of his service, which involved driving and loading and unloading a big laundry truck, which he contends further aggravated his condition. The Court held that the existing VA clinical opinion does not arise to the level of "clear and unmistakable" evidence to support a finding that the pre-existing spina bifida occulta was not aggravated by his service. See Wagner, 370 F.3d at 1096. Specifically, it was held that the VA examiner did not identify affirmative evidence of nonaggravation of spina bifida occulta by service. The Court stated that an examiner must not rely on the insufficiency of the evidence to establish aggravation. Otherwise, the burden of proof is improperly placed upon the Veteran instead of VA. Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). VA must rely upon affirmative evidence that proves there was no aggravation. Id. 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. Arrange for the same VA examiner who provided the January 2008 VA examination report, with addendums in January and June 2010, if available, or an appropriate substitute, to prepare an addendum opinion, and if necessary, conduct a new examination. The claims file, to include a complete copy of the REMAND and the Court memorandum decision dated in January 2013, should be made available to the examiner to review in conjunction with rendering the addendum opinion, and any necessary examination. All necessary testing should be conducted. The rationale for all opinions should be provided. The examiner is asked, considering the evidence, accepted medical principles pertaining to the history, manifestations, clinical course, and the character of the disability found, to determine: a. Whether the record contains clear and unmistakable that is, obvious or undebatable, affirmative evidence of nonaggravation of spina bifida occulta in service? If so, the examiner must identify the affirmative evidence of nonaggravation. In this regard, if the conclusion is that an increase in disability was due to the natural progress of the spina bifida occulta, the examiner is asked to identify what affirmative evidence there is to support that conclusion? b. If feasible, the examiner is asked to determine the pre-service level of severity of the low back disability caused by the pre-existing spina bifida occulta and the level of severity after the Veteran left service. The examiner is directed to consider that an increase in the disability is a chronic worsening of underlying condition beyond natural progression as opposed to temporary flare-up of symptoms. Stated another way, a permanent increase in severity of the pre- existing condition, that is, an irreversible worsening of the pre- existing condition during service on the basis of the manifestations prior to, during, and subsequent to service. The examiner must render all opinions under the standard of clear and unmistakable evidence which is a standard meaning it is obvious or undebatable. The "as likely as not" standard does not apply in this instance. Finally, the expert is advised that the opinions must be based upon clear and unmistakeable affirmative evidence demonstrating the opinion there was no aggravation, and cannot rely on the insufficiency of the evidence to establish nonaggravation. 2. After the development requested is completed, readjudicate the claim. If the benefit sought remains denied, furnish the Veteran a supplemental statement of the case and 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 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). _________________________________________________ U. R. POWELL 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).