Citation Nr: 1340263 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-02 884 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION 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 Veteran had active service from December 1972 to September 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2007 rating decision of the RO. In November 2012 and May 2013, the Board remanded the issue for further development. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's spina bifida occulta is a congenital defect. 2. The currently demonstrated spondylolisthesis is shown as likely as not have been present during the Veteran's period of active service as a superimposed disease process. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, his current back disability by a spondylolisthesis is due to disease or injury that was incurred in active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013); VAOPGCPREC 82-90 (July 18, 1990); Quirin v. Shinseki, 22 Vet. App. 390, 394-395 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION To the extent that the action taken hereinbelow is fully favorable to the Veteran, further discussion of VCAA is not required at this time. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Veteran asserts that his current back disability is related to service. Additionally, he reports having back problems beginning in service, although such complaints were not documented therein. The Board notes a post-service diagnosis of spina bifida, which has been confirmed as a congenital defect by the February 2013 VA examiner. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9 (2013). Such conditions are part of a life-long defect and are normally static conditions which are incapable of improvement or deterioration. See VAOGCPREC 67-90 (1990). VA regulations specifically prohibit service connection for a congenital or developmental defect, unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90 (July 18, 1990) (cited at 55 Fed. Reg. 45,711 ) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury). See also Carpenter v. Brown , 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993). In any event, service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the condition was incurred in or aggravated by service. While a defect is a structural or inherent abnormality or condition that is more or less stationary in nature, a disease is defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. See VAOPGCPREC 82-90, 56 Fed. Reg. 45711 (1990). On this record, spinal bifida occulta was found to be a defect. Generally, 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 military 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). 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). The service treatment records, to include the reports of the entrance and separation examinations, show no complaints or findings referable to a back disorder, and there was no mention of a pre-existing back defect or disease noted at entrance. At separation from service, the Veteran's back was noted to be normal. However, the Board notes that a report of an in-service oral cholecystogram, dated in March 1976, noted findings of a large posterior fusion defect at the L4-L5 levels. A private X-ray study performed in August 1993 showed that the Veteran had spondylolysis of L5 with grade one spondylolisthesis of L5/S1 as well as spina bifida with hyperplasia of the lamina of L5. A private X-ray study in January 1996 reported a spina bifida defect at S1. A private physician in October 2009 opined that the Veteran's extensive training had worsened his back problems during service, thereby suggesting that the spondylolisthesis was present during service. However, as there was no supporting rationale for this opinion, further development was sought. The Veteran was afforded a VA examination in March 2010 when the examiner diagnosed intervertebral disc syndrome and degenerative arthritis and ruled out a relationship between these back conditions and service on the basis that there were no records of any back problems during service. Upon VA examination in February 2013, the examiner diagnosed spondylolisthesis, spina bifida occulta, arthritis and degenerative disc disease. Although the examiner considered the Veteran's medical and military history and concluded, in pertinent part, that spina bifida occulta was a congenital defect (versus a congenital disease), the Board finds that the examiner's opinion to be inadequate with respect to addressing whether another disease or injury could have been superimposed on the congenital defect. Also, the Board noted that the examiner did not discuss the significance of the finding of a large posterior fusion defect at the L4-L5 levels as noted in the March 1976 service treatment record. Thus, an addendum VA medical opinion was obtained. The same VA examiner provided an addendum medical opinion after reviewing the claims folder in June 2013. Based on a careful review of the evidence, the examiner found the presence of superimposed low back pathology during service. After considering the findings in the March 1976 service treatment record, she opined that it was at least as likely as not that, in addition to the congenital spina bifida occulta, there was other superimposed low back pathology present during service. She stated that, while a conclusion about what the service clinician meant by "defect" was not definitive with respect to the posterior fusion defect at the L4-L5, she elaborated that current medical evidence pertaining to spina bifida occulta had shown that it often accompanied spondylolysis and spondylolisthesis (citing to relevant medical literature). Furthermore, the VA examiner explained that medical literature also documented that angulation of the sacrum, specifically a low sacral table angle might be found in patients with spina bifida occulta rendering them more susceptible to progressive slippage of intervertebral disc and/or conditions such as spondylolisthesis. Considering this medical evidence and the January 1996 lumbar X-ray report documenting a pars defect at L5 and references the poor viewing of L5 on S1 due to the angulation of the lumbosacral spine, she opined that it was at least as likely as not that this Veteran's asymptomatic spina bifida occulta placed him at risk for dynamic mechanical instability of the lumbar spine. However, not having the 1996 plain film report available for review, the examiner concluded that, based on the evidence available in the record, it was at least as likely as not that the Veteran had, in addition to the asymptomatic congenital spina bifida occulta, an asymptomatic superimposed defect at L5, plausibly a spondylolisthesis, present during service. Yet, the examiner opined that it remained less likely than not that the Veteran's active back symptoms existed during service or were aggravated by service as there was no evidence in the record to support or suggest any back condition during service other than the existence and incidental finding of an asymptomatic mechanical instability of the lumbar spine. The Board has assigned various degrees of probative value to the medical evidence in this case, and accords some probative weight to the medical findings in the February 2013 VA examination in conjunction with the medical opinion addendum in June 2013. In sum, there is a current back disability manifested by spondylolisthesis and spina bifida occulta as evidenced by the record; a medical finding of a superimposed low back pathology during service (possibly spondylolisthesis); a positive opinion that the Veteran's congenital defect spina bifida occulta placed him at risk for dynamic mechanical instability of the lumbar spine; allegations of continuity of back problems since service by the Veteran; but a negative opinion with respect to relating the Veteran's current back symptoms to a possible superimposed spondylolisthesis in service. VA is also to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154. The Federal Circuit held that medical evidence is not always or categorically required in every instance to establish the required nexus or linkage between the claimed disability and the Veteran's military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Citing its previous decisions in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit stated in Davidson that it has previously and explicitly rejected the view that competent medical evidence is always required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. See id. at 1316. As such, the Board finds that the evidence to be at least in relative equipoise in showing as likely as not that the current back disability had its clinical onset in service as the asymptomatic mechanical instability of the lumbar spine, to include an acquired spondylolisthesis, was present in service as superimposed on the congenital defect spina bifida occulta. See 38 C.F.R. § 3.303 (2013); VAOPGCPREC 82-90 (July 18, 1990); Quirin v. Shinseki, 22 Vet. App. 390, 394-395 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). . In resolving all reasonable doubt in the Veteran's favor, service connection for a back disability manifested by a spondylolisthesis is warranted. 38 U.S.C.A. §5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a spondylolisthesis is granted. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs