Citation Nr: 1339209 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-27 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right shoulder disability, to include as secondary to a back disability. 3. Entitlement to service connection for a left shoulder disability, to include as secondary to a back disability. 4. Entitlement to service connection for headaches, to include as secondary to a back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and J.E.G., Sr. ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from May 19, 1987, to June 24, 1987. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In August 2012, the Board remanded the matter to afford the appellant the opportunity to appear at a Board hearing. In April 2013, the appellant testified before the undersigned Veterans Law Judge at a Board hearing held at the Muskogee RO. A transcript of that hearing has been associated with the appellant's Virtual VA file. For the reasons set forth below, a remand of this matter is required. 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 VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). After reviewing the available record, the Board finds that additional evidentiary development is necessary prior to further appellate consideration. VA's duty to assist includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2) (2013). At his April 2013 Board hearing, the appellant testified that he was unable to work due to his back disability. He reported that he had applied for Social Security disability benefits and that the agency was in the process of adjudicating his claim. In light of the appellant's testimony, the Board finds that VA is required to undertake the necessary efforts to obtain the appellant's records from SSA, as they appear relevant to his VA claim. McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir. 2008) (noting that Congress has explicitly defined VA's duty to assist in terms of relevance); see also Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010) (noting that "[r]elevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the veteran's claim."). VA's duty to assist also includes making reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, such as records from a private physician. Such reasonable efforts will generally consist of an initial request for the records and at least one follow-up request. 38 C.F.R. § 3.159(c)(1). A claimant, however, has an obligation to provide VA with enough information to identify and locate existing records and authorize the release of these records in a form acceptable to the custodian. Id. At his April 2013 Board hearing, the appellant testified that he had received treatment for his back disability from private chiropractors as well as an orthopedic surgeon. In light of the appellant's testimony, the Board held the record open for a period of 60 days to allow him the opportunity to submit records from these providers. Unfortunately, however, no records were received. The appellant is advised that, if he wishes VA's assistance in obtaining these records on remand, he must provide VA with the information necessary to locate and obtain these records. Finally, the Board notes that VA's duty to assist also includes obtaining a medical opinion if one is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(4) (2013). After reviewing the available record in light of the applicable legal criteria, the Board concludes that an additional examination and opinion is necessary. Under applicable criteria, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002). In general, to establish service connection the evidence must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir.2004). Several statutory presumptions operate in connection with the laws providing for service connection, including the presumption of soundness. Under that statutory presumption, a Veteran is presumed to have been in sound condition when entering service, except as to defects, infirmities, or disorders noted at the time of the examination or where clear and unmistakable evidence demonstrates that the injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C.A. § 1111, 1137 (West 2002). Congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. 38 C.F.R. § 3.303(c) (2013). Rather, a defect of congenital, familial or hereditary origin by its very nature preexists military service. Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). If the defect is congenital, therefore, the presumption of sound condition at service entrance does not attach. See Quirin v. Shinseki, 22 Vet. App. 390, 397 (2002); Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed.Cir.2003) (holding that the presumption of soundness does not apply to congenital defects). Nonetheless, where during service a congenital or developmental defect is subject to a superimposed injury or disease, service connection may be warranted based on aggravation. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel opinion 01-85 (March 5, 1985). The record in this case includes military medical records showing that, on May 5, 1987, the appellant completed a medical prescreening form on which he expressly denied having or ever having had back trouble. On May 7, 1987, the appellant underwent a military enlistment medical examination. In connection with the examination, the appellant completed a report of medical history on which he specifically denied having or ever having had recurrent back pain. On clinical evaluation, his spine and musculoskeletal system were normal. The enlistment medical examination report shows that the appellant was found fit for enlistment and gave the highest rating in each of the PULHES categories, except his eyesight. See McIntosh v. Brown, 4 Vet. App. 553, 555 (1993) (noting that PULHES is a rating system widely employed by armed services physicians in examination reports for induction and separation. In pertinent part, the "P" stands for "physical capacity or stamina." A rating of "1" in any means that the inductee's condition should not result in any limitations in military assignments. Ratings from "2" to "4" indicate the existence of physical conditions that will result in progressively more severe restrictions on the assignments that the inductee may be given.). On May 19, 1987, the appellant entered onto active duty. On May 29, 1987, the appellant sought medical treatment for back pain which he indicated had been present for "quite a while" and had worsened in the past year, particularly when standing for long periods of time or running. He specified that his back pain had started at about age 6. The examiner noted that the appellant had made no mention of these symptoms on his SF 93, which was the report of medical history he had completed in connection with his military enlistment examination. X-ray studies of the appellant's spine were also performed and were interpreted as showing mild scoliosis. The appellant was given Motrin and put on a physical profile for four days. On the following day, the appellant again sought treatment for back pain, stating that he had stumbled and fallen while running to the dining facility. It was noted that the appellant had violated his medical profile by running. He was hospitalized overnight. On admission, he was treated with heat, rest, and muscle relaxants. On the next day, the appellant's spasms were noted to have resolved, his back was nontender, he exhibited full range of motion, and neurological examination was within normal limits. The diagnoses on discharge were L5 spondylolysis and low back pain with paravertebral muscle spasm. On June 1, 1987, an Entrance Physical Standards Board Proceeding was initiated. The report of that proceeding (DA Form 4707), dated on June 9, 1987, notes that the appellant's history was positive for low back pain prior to entering service. Current physical findings included left L5 spondylolysis on X-ray. The Board concluded that the appellant did not meet induction standards and recommended that he not be retained because his medical condition was likely to result in disability separation in the future. During the following week, the appellant indicated that he concurred with the findings and requested discharge from the Army without delay. The appellant was separated from active duty on June 24, 1987, for failing to meet procurement medical fitness standards. The appellant's military records also include a June 26, 1987, DA Form 2173, Statement of Medical Examination and Duty Status, which notes that he had sustained back pain in May 1987 as a result of falling while running. It was noted that his injury was considered to have been incurred in the line of duty and was likely to result in a claim against the government for future medical care. In pertinent part, the post-service record on appeal includes private clinical records showing that the appellant sought treatment for low back pain in December 1998. He reported a history of a prior back injury in a 1994 motor vehicle accident. He did not report a military injury at that time. The diagnosis was a lumbar back strain. In January 2001, the appellant was also seen with complaints of chronic back pain. X-ray studies showed transitional lumbosacral vertebra, which was probably due to a partially sacralized L5 segment, as well as changes suggestive of mild degenerative disc disease at L4-5. In November 2008, the appellant submitted an original application for VA compensation benefits seeking service connection for residuals of a back injury, which he indicated he had sustained in a fall. In support of his claim, the appellant submitted a copy of a January 2009 private clinical record showing that he reported a history of low back pain continuously since 1987 after he fell in basic training. The examiner also noted that the appellant reported that he had had back pain prior to service and was said to have spondylolithesis at L5-S1. X-ray studies showed degenerative changes of the lower lumbar spine at L5-S1. The appellant also submitted a copy of a December 2009 private examination report containing diagnoses of degenerative disc disease and foraminal stenosis at L4-5 and L5-S1. The examining physician concluded that it was more likely than not that the appellant's "injury in the military has led to him having some chronic back problems." The appellant was afforded a VA medical examination in June 2010. The examiner diagnosed minimal degenerative joint and disc disease at L3-4 and L4-5 without objective evidence of radiculopathy. She concluded that such condition was not due to the in-service fall, but "is at least as likely a result of a results [sic] of his post military events, injuries, activities, and/or working hard physical labor as a factory worker for seventeen years post military and/or the normal process of aging." The examiner also noted that scoliosis was a developmental anomaly and not rated as an impairment. After reviewing this evidence in light of the applicable legal criteria, the Board finds that additional evidentiary development is necessary. In this case, despite notations in the clinical evidence of back symptomatology prior to the appellant's active duty, absent a notation at the time of his May 1987 enlistment medical examination, the presumption of sound condition attaches. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); see also Crowe v. Brown, 7 Vet. App. 238, 247 (1994); Quirin v. Shinseki, 23 Vet. App. 390, 396 (2009) ("[T]he 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."). In cases where the presumption of soundness attaches, the burden shifts to the Secretary to show by clear and unmistakable evidence that: "(1) a disease or injury existed prior to service; and (2) the disease or injury was not aggravated by service." Patrick v. Shinseki, 668 F.3d 1325 (Fed. Cir. 2011) (citing Wagner v. Principi, 370 F.3d 1089, 1096 (Fed.Cir.2004) (emphasis added). The second prong of the presumption of soundness is rebutted if there is clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Wagner, 370 F.3d at 1096; see also Quirin v. Shinseki, 22 Vet. App. at 397. In this case, the appellant is presumed to have been in sound condition upon his entrance into active duty. During active duty, he was diagnosed as having mild scoliosis and L5 spondylolysis. Although there is a suggestion that scoliosis is a developmental anomaly, the record remains unclear whether scoliosis, or any of the other back conditions noted during service, was aggravated during service nor is it clear that such pathologies have persisted. The appellant's current low back diagnoses do not appear to include either scoliosis or spondylosis. The post-service record on appeal shows that the appellant current back diagnosis is degenerative joint and disc disease. Given the applicable legal standards, the Board finds that another medical opinion is necessary in order to clarify the nature and etiology of the appellant's current back disability, to include the issue of pre-service soundness and in-service aggravation. Horn v. Shinseki, 25 Vet. App. 231, 243 (Vet. App. 2012). Finally, the Board notes the appellant's contention that he has developed shoulder and headache disabilities secondary to his back disability. Given the appellant's contentions and the evidence of record, the Board finds that the issue of entitlement to service connection for a back disability should be resolved prior to further consideration of the secondary claims. See e.g., Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that when a determination on one issue could have a significant impact on the outcome of another issue, such issues are inextricably intertwined and VA is required to decide those issues together). Thus, the Board's consideration of the claims of service connection for a right shoulder disability, a left shoulder disability, and headaches will be held in abeyance pending additional action on the claim of service connection for a back disability. Accordingly, the case is REMANDED for the following: 1. The RO/AMC should contact the appellant and ask him to identify all sources of medical treatment for his back disability since 1987, to include treatment for a back injury following a 1994 motor vehicle accident. 2. The RO/AMC should contact the Social Security Administration and request copies of records in their possession pertaining to the appellant's application for disability benefits, to include a copy of any decision rendered and the records upon which such decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of those records. 3. After the development requested above is completed, the appellant should be scheduled for a VA medical examination to determine the nature and etiology of his current back disability. The claims folder and copies of any additional records in the appellant's electronic VA files must be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should be asked to identify all current back pathology found on examination, to include both congenital defects as well as acquired back disabilities. The examiner should then provide an opinion as to the following questions for each back disability identified: A. On the basis of all the evidence of record, is it clear and unmistakable (i.e., obvious, manifest, or undebatable) that the appellant had the back disorder prior to his entry onto active duty? B. If so, on the basis of all the evidence of record pertaining to the manifestations of such back disability prior to, during, and subsequent to service, is it clear and unmistakable that any preexisting back disability either (1) underwent no increase in disability during either period of service, or (2) that any increase in disability during either period of service was due to the natural progression of the condition? C. Is it as least as likely as not that any current back disability identified on examination is causally related to any incident of the appellant's service or to aggravation of any pre-service back disability during service? For any congenital defect identified: A. Is it at least as likely as not that such defect was subject to, or aggravated by, a superimposed disease or injury during service which resulted in additional disability? B. Is it as least as likely as not that any current back disability identified on examination is causally related to such superimposed disease or injury, or aggravation of, the congenital back defect during service? If the examiner determines that the appellant currently exhibits a back disability which is causally related to any incident of the appellant's service or to aggravation of any preservice back disability during service, he or she should provide an opinion as to whether it is at least as likely as not that the appellant currently exhibits a right shoulder disability, a left shoulder disability, or a chronic headache disability which was either incurred in service or that was caused or aggravated by the back disability. A complete rationale for all opinions must be provided. 4. After conducting any additional development deemed necessary, the RO/AMC should readjudicate the claims, considering all the evidence of record. If the claim remains denied, the appellant and any representative should be issued an appropriate supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board in accordance with applicable procedures. 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). _________________________________________________ J.W. ZISSIMOS 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).