Citation Nr: 1329836 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 10-12 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for hemisacralization, or congenital anomalous facet L5/S1. 4. Entitlement to service connection for a lumbosacral strain. 5. Entitlement to service connection for degenerative disc disease (DDD) of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1971 to March 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran testified before a Decision Review Officer (DRO) in July 2010 and the hearing transcript is of record. The Board notes that the Veteran initially filed a claim for service connection for a back disability on his January 2009 original claim form. In May 2009 the Veteran was diagnosed with residual left side lumbar radiculopathy status post lumbar discectomy versus permanent nerve damage from previous nerve compression; and mild degenerative disc disease of the lumbar spine. The RO, in its June 2009 rating decision, characterized the issue as service connection for residual left side radiculopathy, status post discectomy, and denied the claim on the basis that records showed the Veteran had back problems prior to service and there was no evidence that the condition permanently worsened as a result of service. The Board recognizes that in order to properly address the legal concepts of presumption of soundness and service connection, the issue involving the Veteran's back disability must be trifurcated and recharacterized (as now shown on the title page) as several diagnoses of the Veteran's back condition has been documented in the records. A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record except the August 2013 Appellate Brief. There are no documents in the Veterans Benefits Management System (VBMS) which are relevant to this appeal. The issues of service connection for a lumbosacral strain and service connection for DDD are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Bilateral hearing loss disability did not manifest in service, an organic disease of the nervous system did not manifest within the one year presumptive period or for many years thereafter, and is unrelated to service. 2. Tinnitus did not manifest in service or for many years thereafter, and is unrelated to service. 3. Hemisacralization or congenital anomalous facet L5/S1 was identified during service. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was not incurred in or aggravated by service and organic disease of the nervous system may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385 (2012). 2. Tinnitus was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). 3. Hemisacralization or congenital anomalous facet L5/S1 is a congenital defect and not a disease or injury within the meaning of compensation benefits. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 4.9 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The RO provided a VCAA-compliant letter to the Veteran in February 2009 prior to the initial adjudication of his claims in June 2009. The letter notified the Veteran of what information and evidence must be submitted to substantiate his claim, as well as what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. He was also told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence in support of his claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The requirements of VCAA also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was provided with notice of the type of evidence necessary to establish a disability rating and effective dates. In this case, VA obtained the Veteran's service treatment records, service personnel records, and all of the pertinent VA treatment records. The Veteran has not identified private treatment records in connection with any of the disabilities claimed in this appeal. In addition, the Veteran was provided with VA examinations (spine and audiological) in connection with his hearing loss, tinnitus, and back claims in May 2009. As the May 2009 medical opinion on hearing loss and tinnitus included a review of the pertinent medical history, clinical findings, and diagnoses, and was supported by medical rationale, the Board finds that the evidence is adequate to make a determination on these claims. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA. The Veteran was an active participant in the claims process by providing evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to have caused injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claims. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Pertinent Law and Analysis As an initial matter, the Board notes that the Veteran did not engage in combat with the enemy. His service personnel records, to include his DD Form 214, do not indicate that the Veteran engaged in combat (e.g., no combat awards or decorations). Therefore, the combat provisions of 38 U.S.C.A. § 1154(b) (West 2002) are not applicable. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service incurrence may be presumed for some chronic disorders, including an organic disease of the nervous system, when demonstrated to a compensable degree within one year following separation from service. 38 U.S.C.A. § § 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Sensorineural hearing loss is an organic disease of the nervous system. See Memorandum, Characterization of High Frequency Sensorineural Hearing Loss, Under Secretary for Health, October 4, 1995. 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service Connection for Bilateral Hearing Loss Disability For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran contends that his current bilateral hearing loss disability began in service as a result of exposure to hazardous noise levels (loud noises from weapons firing as a light weapons infantry soldier). At his July 2010 DRO hearing, the Veteran testified that he was responsible for firing weapons, including M-16s, M-60s, and mortars. The Board accepts that the Veteran was exposed to hazardous noise during service as his statements are consistent with the circumstances of his service and duties as a light weapons infantryman. See 38 U.S.C.A. § 1154(a). Specifically, at his DRO hearing, the Veteran stated that he noticed diminished hearing approximately six weeks after entry into service and it gradually worsened over time. He indicated that he was issued hearing protection in service but he was unable to utilize them. He also stated that he had post-service noise exposure in his civilian job performing maintenance, but he wore hearing protection. The Veteran testified that he has previously been treated at different hearing places prior to seeking VA treatment. However, the Board notes that the Veteran has not provided specific details of such treatment nor has he submitted any evidence of private treatment records. Service treatment records show that the Veteran did not complain of a disease or injury affecting his ears in service. Service treatment records also contain audiograms which show that the Veteran did not have hearing disabiliy for VA purposes in either ear. The Veteran first demonstrates a hearing loss disability for VA purposes in 2009. However, as will be explained infra, there is an abnormal finding at the time of separation as the Veteran demonstrates hearing loss in service. Upon pre-induction examination in October 1970, puretone thresholds were as follows (NOTE: Frequency categories not shown below indicate that testing was not conducted/not reported for that particular category): HERTZ 500 1000 2000 3000 4000 RIGHT 5 15 5 -- 15 LEFT 20 10 10 -- 20 Upon examination in May 1971 (due to lost records), the Veteran exhibited the following puretone thresholds (NOTE: Frequency categories not shown below indicate that testing was not conducted/not reported for that particular category): HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 0 -- 5 LEFT 10 10 0 -- 5 Upon separation examination in February 1972, the Veteran exhibited the following puretone thresholds: HERTZ 250 500 1000 2000 3000 4000 6000 8000 RIGHT 25 15 25 20 -- 20 -- 10 LEFT 25 15 15 15 -- 20 -- 5 The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Even though a hearing loss disability is not shown in service or within one year of separation from service, service connection can be established if evidence shows that it is actually due to incidents during service, particularly where the evidence demonstrates a threshold shift during service. Hensley, 5 Vet. App. at 159-60. According to Hensley, there was hearing loss but not disability at 250 Hertz in each ear and at 1000 Hertz on the right. VA post-service treatment records indicate that the Veteran had an initial audiological assessment in January 2009. Hearing sensitivity tests were performed (although decibels level were not reported) and the Veteran was found to have sensorineural bilateral hearing loss. An otoscopic inspection revealed non-occluding cerumen in the left ear. The Veteran also discussed hearing aid fitting with the audiologist. In May 2009, the Veteran was afforded a VA audiological examination. The VA examiner reviewed the claims file, to include all in-service and separation audiograms, and considered the Veteran's statements that he was exposed to gunfire, tanks, and armored personnel during service, and had post-service noise exposure in his civilian occupation, wearing hearing protection. Objective hearing tests were performed and showed that the Veteran has a hearing loss disability pursuant to VA standards. The Veteran also complained of constant tinnitus and reported that the onset of tinnitus was eight or nine years ago. The Veteran was diagnosed with bilateral sensorineural hearing loss and subjective tinnitus. In considering all of the information provided to him, the VA examiner opined that it was less likely as not that hearing loss and tinnitus were caused by or a result of exposure to acoustic trauma from firing weapons during service. He reasoned that while the service treatment records indicated that there was a shift in hearing acuity, or decrease in hearing, from enlistment to separation, the shift is in the low and mid-frequencies, which is not consistent with acoustic trauma, but rather consistent with outer or middle ear pathology or a noisy testing environment. Furthermore, he mentioned that the Veteran reported an onset of tinnitus almost 30 years after discharge from service. Since there is no evidence of noise-induced hearing loss during service and since all in-service hearing tests were within normal limits bilaterally, the VA examiner found for a negative nexus between a bilateral hearing loss disability and tinnitus, and any event in service. The Board acknowledges that, even "when audiometric test results at a Veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service". Hensley, 5 Vet. App. at 160 (1993). The Veteran is competent to describe symptoms of an injury or illness, such as loss of hearing, and once such evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). As such, it is within the scope of the Veteran's competency for him to describe the diminished hearing acuity during service and thereafter. Because the Veteran currently has an organic disease of the nervous system, 38 C.F.R. § 3.303(b) is potentially applicable. However, an organic disease of the nervous system, to include sensorineural hearing loss, was not "noted" during service. Furthermore, there were no characteristics of the disease process noted, identified, manifest, or diagnosed during service. The Board notes that in-service audiograms reveal abnormal findings with respect to hearing acuity. In fact, when comparing the in-service audiograms there is a change in hearing acuity in certain frequency categories at separation. Specifically, the Veteran demonstrated puretone thresholds of 25 decibels at the 250 Hertz and 1000 Hertz category for the right ear and in the 250 Hertz category for the left ear. The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Thus, the Board finds that there was an abnormal finding (hearing loss) demonstrated in service. Despite the abnormal findings in service, 38 C.F.R. § 3.303(b) does not assist the appellant in this case as the in-service audiogram results were later interpreted by an audiologist as not consistent with sensorineural hearing loss (the Veteran's current disability). See supra, May 2009 examiner's opinion. Thus, the current bilateral sensorineural hearing loss disability is not linked to the Veteran's experience of hearing loss during service. Regardless of continuity of symptomatology, whether the Board considers the issue under 38 C.F.R. § 3.303(a) or § 3.303(b) with the Veteran reporting an in-service onset and providing a lay nexus opinion, our result is the same. As the VA examiner explained the reasons for his conclusions based on an accurate characterization of the evidence in the claims file, his opinion is entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The Board also notes that the VA examiner did not base his conclusion solely on the absence of evidence of hearing loss in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993); Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992) (the absence of hearing loss disability in service is not in and of itself fatal to a claim for service connection for bilateral hearing loss disability). Rather, he based his opinion on his examination of the Veteran, the Veteran's statements to him regarding post-service noise exposure, the medical evidence indicating onset of hearing loss disability many years after service, and relevant medical principles. The examiner also specifically addressed the upward shift in hearing acuity that is noted on audiograms from entrance to separation, and provided a medical explanation that addresses the shift and attributes it to other medical and environmental causes. The VA examiner ultimately found a negative nexus between the current bilateral sensorineural hearing loss disability and the hearing loss exhibited in service. The only other opinion with respect to etiology is that of the Veteran. The Veteran is competent to testify to his observations, and the RO and the VA examiner conceded his in-service noise exposure, as does the Board. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, on the question as to whether current bilateral hearing loss disability is related to in-service noise exposure, the specific, reasoned opinion of the audiologist who performed the May 2009 VA examination is of greater probative weight than the more general assertions of the Veteran, even assuming the Veteran's competence to opine on this medical question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau; lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). The weight of the evidence therefore reflects that hearing loss disability did not manifest in service, sensorineural hearing loss disability did not manifest within the one year presumptive period or for many years thereafter, there is no relationship between current hearing loss disability and the conceded in-service noise exposure. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the hearing loss disability claim. 38 U.S.C.A. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection for Tinnitus The Veteran avers that his current tinnitus, or ringing in his ears, is related to exposure to hazardous noise in service. Again, the Board accepts that the Veteran had in-service noise exposure. As previously mentioned, the Veteran was diagnosed with subjective tinnitus at the May 2009 VA examination. During the examination, the Veteran complained of constant tinnitus and reported that the onset of tinnitus was eight or nine years ago. The Veteran is competent to describe symptoms of an injury or illness, such as ringing in his ears, and once such evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency and credibility, which is a "factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Tinnitus is a condition where lay observation has been found to be competent to establish the presence of the disability. Charles v. Principi, 16 Vet. App. 370 (2002). As such, it is within the scope of the Veteran's competency for him to describe the ringing in his ears he has experienced, to include the onset of the tinnitus. The Veteran does not allege that his tinnitus began in service. In fact, he specifically testified at his July 2010 DRO hearing that he began noticing tinnitus around nine or ten years ago. The lay and medical evidence establishes a remote post service onset approximately nine years prior to 2009. Thus, he is alleging that his current tinnitus is a result of the in-service noise exposure. To this end, the Veteran's statements as to the link between his current tinnitus, which had its onset approximately nine years prior, and in-service noise exposure, is not credible. The opinion from the audiologist who performed the May 2009 VA examination is of greater probative weight, even assuming the Veteran's competence to opine on this medical question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) The weight of the evidence therefore reflects that tinnitus did not manifest in service or for many years thereafter, there is no relationship between current tinnitus and the conceded in-service noise exposure. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the tinnitus claim. 38 U.S.C.A. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Service Connection for Congenital Defects As to the issue of service connection for hemisacralization, or congenital anomalous facet L5/S1, where the facts are not in dispute, and the case is decided on the application of the law to the undisputed facts, the Veterans Claims Assistance Act of 2000 does not apply. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004), 69 Fed. Reg. 25180 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). Therefore, VCAA compliance need not be addressed for this issue. The record contains several distinct diagnoses of back disorders. The Board notes that the Veteran did not specifically claim service connection for hemisacralization or congenital anomalous facet L5/S1. However, because the Veteran seeks service connection for the symptoms no matter how they are labeled, the Board must assume jurisdiction over any claimed back condition. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that a claimant seeks service connection for the symptoms regardless of how those symptoms are diagnosed or labeled). Congenital or developmental defects are not disease or injuries within the meaning of legislation applicable to service connection. 38 C.F.R. § 3.303(c). Sacralization is the fusion of the fifth lumbar vertebra to the first segment of the sacrum, so that the sacrum consists of six fused vertebrae (segments) instead of five. Dorland's Illustrated Medical Dictionary, at 1478 (27th ed. 1988). Sacralization alters the spinal mechanics and results in instability and stress, which sometimes produces back pain. Section Fifteen--Mechanical Lesions of the Spine and Related Structures, James B. Posner, at 2257, Cecil Textbook of Medicine, Volume 2, Wyngarden and Smith (1988). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). However, congenital or developmental defects as such are not considered to be diseases or injuries within the meaning of applicable legislation providing VA disability compensation benefits. 38 C.F.R. § 3.303(c). The United States Court of Appeals for Veterans Claims (Court) has recognized that congenital diseases, but not defects, may be service connected. See Winn v. Brown, 8 Vet. App. 510, 516 (1996). In Winn, the Court held that the term "disability," as used in 38 U.S.C. § 1110, cannot include "non-disease or non-injury entities such as congenital defects," because it would lead to the absurd result of requiring the Secretary to meet his burden of rebuttal under the presumption of soundness "only by evidence of disease or injury when a congenital defect is neither a disease nor an injury." Id. Recognizing the important distinction between the two, the VA General Counsel issued an opinion explaining how congenital conditions may properly be classified as either defects or diseases. See VA Gen. Couns. Prec. 82-90 (first released as 1-85 on March 5, 1985). The General Counsel opinion draws on medical authorities and case law from other federal jurisdictions and concludes that a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." VA Gen. Couns. Prec. 82-90 at p. 2. The Board also notes that since hemisacralization, or congenital anomalous facet L5/S1, is not due to a disease or injury in service, it is not subject to the presumption of soundness. The only prerequisite for the application of the presumption of soundness is that the veteran's entry examination be clear of any noted diseases or disabilities. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). The presumption of soundness applies to congenital conditions that are not noted at entry. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The presumption of soundness does not, however, apply to congenital defects, because such defects "are not diseases or injuries within the meaning of 38 U.S.C. §§ 1110 and 1111." Quirin, 22 Vet. App. at 397; see 38 C.F.R. § 3.303(c); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed.Cir.2003) (holding that the presumption of soundness does not apply to congenital defects). Accordingly, the Veteran's claim for service connection for hemisacralization, or congenital anomalous facet L5/S1, must be denied because it is a congenital defect, and not subject to service connection. Since the Veteran's claim fails because of the lack of entitlement under the law, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). However, to the extent that the appellant has acquired or superimposed pathology in the back, such issues are the subject of the REMAND. ORDER Service connection for a bilateral loss disability is denied. Service connection for tinnitus is denied. Service connection for hemisacralization, or congenital anomalous facet L5/S1, is denied. REMAND The Board finds that additional development is necessary for the lumbar strain and mild degenerative disc disease issues. As previously noted, the Veteran did not report any back trouble nor was there a finding of abnormality with his spine at the time of entrance into service in May 1971. However, service treatment records indicate that the Veteran sustained an injury to his back in September 1971 and complained of low back pain and pain in the left hip. He was diagnosed and treated for a chronic lumbar strain for several months thereafter. During the course of treatment, the Veteran revealed that he had previously fractured his pelvis prior to service, which has before caused him pain in his back and left hip area. In February 1972, the Veteran underwent a Medical Board examination where his final diagnosis was lumbosacral strain, chronic, secondary to hemisacralization, congenital anomalous facet L5/S1. The Medical Board determined that the Veteran was erroneously inducted and was unfit for retention, and recommended separation from service. The Medical Board noted that the Veteran's lumbosacral strain was not service aggravated. The Veteran underwent a lumbar discectomy in 1982. In May 2009, the Veteran underwent a VA examination for his spine where he was diagnosed with residuals of left side lumbar radiculopathy status post lumbar discectomy versus permanent nerve damage from previous nerve compression. He also received a current diagnosis of mild degenerative disc disease of the lumbar spine. The current record is unclear as to whether the Veteran still has a lumbosacral strain as he did in service and what the relationship is between such strain and his currently identified mild degenerative disc disease of the lumbar spine. It is difficult to ascertain the etiology of his back disorder(s) at this juncture without further development. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disorders noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C.A. § 1111. To rebut the presumption of soundness, 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. VAOPGCPREC 3-03 (July 16, 2003). The clear and unmistakable evidence standard requires that the result be undebatable. Cotant v. West, 17 Vet. App. 116, 131 (2003). In considering the effect of section 1111 on claims for service-connected disability, VA may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition. Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153 ). Based on the facts of this case and the existing regulations governing principles of service connection and the presumption of soundness, the Board finds that certain questions must be addressed, particularly with the help of a medical specialist prior to adjudication on the merits. Thus, these matters are remanded for a medical opinion which should address the specific questions that the Board has set forth below. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain a medical opinion from an orthopedic spine surgeon. The claims file must be sent to the examiner for review. After reviewing the record, the examiner should answer the following questions and provide a thorough and complete rationale for each answer he or she provides: a. Does the Veteran currently have a lumbosacral strain? If no present lumbosacral strain is found, did the Veteran's lumbosacral strain resolve in service? b. Did the Veteran's lumbosacral strain, as diagnosed in service, clearly and unmistakably exist prior to service? c. What is the relationship, if any, between the Veteran's lumbosacral strain diagnosed in service and the Veteran's pelvic fracture he sustained prior to service? Was there any increase in disability or permanent worsening as related to his lumbosacral strain due to the natural progression of his pre-existing pelvic fracture? d. Was there any back disorder identified in service that was superimposed on his congenital hemisacralization? e. Did the Veteran have an onset of degenerative disc disease in service or within one year after separation from service? f. What is the relationship, if any, between the currently diagnosed degenerative disc disease and any in-service manifestations of back disorders (e.g., lumbar strain). In considering this question, the examiner should specifically consider the injury that the Veteran sustained to his back in September 1971. A clear explanation for all opinions and a discussion of the facts and medical principles involved is necessary. 2. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefits sought of appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity to response. 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs