Citation Nr: 1332584 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-25 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a low back disability. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The appellant is a Veteran who served on active/Federalized duty from June 1974 to August 1976, November 1983 to November 1994, and March 1998 to October 2002. He also had periods of non-Federalized National Guard service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Chicago, Illinois Department of Veterans Affairs (VA) Regional Office (RO). In September 2012, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. He also requested, and was granted, a 60 day abeyance period for the submission of additional evidence. At the hearing (and subsequently) the Veteran submitted additional evidence with a waiver of RO consideration. In a March 2010 communication, the Veteran raised the issue of entitlement to an increased rating for a right ankle disability. Such claim has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran claims he sustained a back injury jumping from a truck in service, in1998 or 1999. He recalls that he misjudged the distance to the ground, his left leg hit the ground first and caused an acute pain to radiate in his lower left back area and shoot down the outside of his left leg. The available service treatment records (STRs) (his service separation examination report is not available for review) show findings of scoliosis to the right less than 1 inch, asymptomatic, on examinations in January 1974 (pre-enlistment) and August 1976. The STRs also show a finding of mild scoliosis, no osseous abnormality on November 1993 X-ray examination in connection with a motor vehicle accident (MVA). A March 1996 treatment report notes that the Veteran was treated at Great Lakes Naval Hospital with a complaint of "back pain post MVA." Post-service, a September 2012 statement from M. K. Chang, M.D., notes magnetic resonance imaging (MRI) findings of severe stenosis at L3-4, L4-5 levels and L4-5 grade I isthmic spondylolisthesis (Dr. Chang noted similar findings on January 2010 MRI). January 2010 and September 2012 statements from Dr. Chang include the opinion that it is "more probable than not" that his current lumbar spine condition is due to the traumatic jumping event the Veteran described in service. The Veteran has testified that he has experienced low back pain since service and has self medicated. The veteran is presumed 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 examination, acceptance, 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; 38 C.F.R. § 3.304. A preexisting injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the "correct standard for rebutting the presumption of soundness under section 1111 requires the government to show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service and (2) that the pre-existing disability was not aggravated during service." The Federal Circuit noted that lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progress of the pre-existing condition. See Wagner v. Principi, 370 F. 3d 1089, 1096-1097 (Fed. Cir. 2004). Further, congenital or developmental abnormality is not of itself a disease or injury within the meaning of applicable legislation [i.e., not a compensable disability]. 38 C.F.R. §§ 3.303(c), 4.9. However, service connection may be granted for disability due to aggravation of a congenital abnormality by superimposed disease or injury in service. See Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). VA's General Counsel has held that a congenital defect can be subject to superimposed disease or injury, and if superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990). See also 38 C.F.R. § 3.303(c). The Veteran has not been afforded a VA examination to determine whether there is a nexus between his current back disability and his service/injury therein. As the record shows a diagnosis of a back disability, and because there is medical evidence suggesting a connection between the Veteran's back disability and his military service, an examination to secure a nexus opinion is necessary. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the record shows that the Veteran was treated for complaints of post-MVA back pain at Great Lakes Naval Hospital in 1996 and continues to receive private treatment for his back complaints. Records of such treatment are constructively of record, may contain information pertinent to his claim, and must be secured. See 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following: 1. The RO should ask the Veteran to identify all providers of treatment and/or evaluation he has received for his back since his separation from service and to provide the authorizations necessary for VA to obtain outstanding records of any such private treatment/evaluation (to specifically include records from Dr. Chang). The RO should secure for the record copies of the complete evaluation/treatment records (those not already associated with the record) from the sources identified, to include complete records of treatment the Veteran has received at Great Lakes Naval Hospital and from Dr. Chang. If any records sought are not received pursuant to the RO's request, the Veteran must be so advised, and also advised that ultimately it is his responsibility to ensure that pertinent private records are received. 2. The RO should thereafter arrange for an orthopedic examination of the Veteran to ascertain the nature and likely etiology of his back disability. His entire VA record must be reviewed by the examiner in conjunction with the examination. Based on examination of the Veteran and review of the record (and noting the pre-enlistment finding of scoliosis and post-MVA back complaints in service and the Veteran's lay accounts of continuing symptoms since), the examiner should offer opinions that respond to the following: (a) Please identify (by medical diagnosis) any/each chronic low back disability found. (b) As to each current back disability entity diagnosed please indicate whether such is a disease or a defect, i.e., in the nature of a congenital or developmental abnormality. Please indicate based on the factual evidence of record (citing to supporting clinical data) when each diagnosed entity was first manifested. (c) As to each diagnosed entity, please opine whether it at least as likely as not (a 50 percent or better probability) was incurred in, or aggravated by (increased in severity beyond natural progression during) the Veteran's active service. (d) If a congenital back abnormality is diagnosed, please indicate whether acquired pathology was superimposed on such during service. If so, please identify the pathology. The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate. The explanation must include comment on the Veteran's reports of continuous/recurring symptoms since service/injury therein and the January 2010 and September 2012 opinions from Dr. Chang, expressing agreement or disagreement with each and explaining the rationale for the agreement or disagreement. 3. The RO should then review the record and readjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ George R. Senyk 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) (2013).