Citation Nr: 1342963 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 98-14 310A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to compensation benefits for spina bifida pursuant to 38 U.S.C.A. § 1805 on the basis of being a child of a Vietnam Veteran. 2. Entitlement to service connection for a back disability. REPRESENTATION Appellant represented by: Virginia Girard-Brady, Esquire WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from March 30, 1988, to May 5, 1988. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for a low back disability, and from a November 1997 rating decision of the same RO which denied compensation benefits under 38 U.S.C.A. § 1805. The St. Petersburg, Florida RO now maintains original jurisdiction over the appeal. This appeal has been before the Board previously on five occasions (January 2001, August 2003, September 2007, January 2010, and December 2011), and each time it was remanded for additional development. The Veteran's claims have at times been treated as claims to reopen previously-denied claims. Such treatment was not appropriate, as the Veteran timely perfected appeals on his original claims for service connection and section 1805 benefits. The Board considers the claims in this decision as original claims. The Veteran testified before an Acting Veterans Law Judge in May 2000. That judge has since left the Board. Following notification of the opportunity to present additional testimony at a new hearing, the Veteran declined such a hearing in September 2013. FINDINGS OF FACT 1. The Veteran has a diagnosis of spina bifida occulta, but no other forms of spina bifida. 2. The Veteran's degenerative disc disease and arthritis of the spine were not demonstrated during active duty service and are unrelated to any in-service occurrence or event. 3. The Veteran's spina bifida occulta and spondylolisthesis are congenital defects that unequivocally preexisted service, and were not subject to a superimposed injury that caused additional disability. CONCLUSIONS OF LAW 1. The criteria for a monetary allowance for an individual suffering from spina bifida whose biological father was a Vietnam veteran have not been met. 38 U.S.C.A. §§ 1802, 1805 (West 2002 & Supp. 2013); 38 C.F.R. § 3.814 (2013). 2. The criteria for service connection for back disorder have not been met. 38 U.S.C.A. §§ 1111, 1131, 1153 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.306 (2013); VAOPGCPREC 82-90 (July 18, 1990), 55 Fed. Reg. 45,711 (Oct. 30, 1990). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claim for Benefits under 38 U.S.C.A. § 1805 The Veteran contends that he is entitled to compensation under 38 U.S.C.A. § 1805. VA provides a monetary allowance for any child of a Vietnam veteran for disabilities resulting from spina bifida. 38 C.F.R. § 1805. With regard to the Veteran's claim, there is no dispute concerning the facts that (a) his father served in Vietnam, and (b) the Veteran has a diagnosis of spina bifida occulta. As section 1805 benefits are payable for "all forms and manifestations of spina bifida except spina bifida occulta," the Veteran does not meet the criteria for compensation. 38 C.F.R. § 1802 (emphasis added); see also 38 C.F.R. § 3.814(c)(4) (defining "spina bifida" as "any form and manifestation of spina bifida except spina bifida occulta). As the appellant's claim is being denied as a matter of law, the duty-to-notify-and-assist provisions of the Veterans Claims Assistance Act (VCAA) do not apply. See Manning v. Principi, 16 Vet. App. 534 (2002) (holding that the VCAA has no effect on appeal limited to interpretation of law). Service Connection Claim VA's Duties to Notify and Assist As provided for by the VCAA, VA has a 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. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Here, following the Board's January 2010 remand, the Veteran was sent a letter in April 2010 that fully addressed all VCAA notice elements for service connection claims. 38 C.F.R. § 3.159(b)(1); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although this notice was not prior to the original adjudication of the claim, the matter was subsequently readjudicated, curing any deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Accordingly, no further development is required with respect to the duty to notify. VA's duty to assist the Veteran in the development of the claim includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Specifically, the results of an April 2013 VA examination, as requested by the December 2011 remand, are of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the December 2011 remand, the Board instructed the RO to make additional attempts to locate Social Security Disability records for the Veteran. In December 2012, the Social Security Administration (SSA) denied having any records concerning the Veteran's disability benefits. In February 2013, VA made a formal finding of those records' unavailability (although noting that SSA medical records were of record). The Veteran's statements in support of the claim are of record, including testimony provided at a May 2000 hearing before an active Veterans Law Judge. The Board hearing focused on the elements necessary to substantiate his service connection claim and the Veteran, through his testimony and his representative's statements, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. Notably, that acting Veterans Law Judge has left the Board, and, as noted in the Introduction, the Veteran declined his opportunity to present additional testimony to another Veterans Law Judge in September 2013. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the acting Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013), and that the Board can adjudicate the claim based on the current record. The Board has carefully reviewed the Veteran's statements and the medical evidence of record, and concludes that no available outstanding evidence has been identified. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. 38 C.F.R. § 3.159(c). Criteria for service connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Concerning the aggravation of pre-service disabilities, 38 C.F.R. § 3.306, a Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted on the entrance examination report. 38 C.F.R. § 3.304(b). The presumption of soundness is rebutted where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto, and was not aggravated by such service. Id. "Congenital or developmental defects . . . are not diseases or injuries within the applicable legislation. 38 C.F.R. § 3.303(c). Thus, they are not subject to aggravation pursuant to 38 C.F.R. § 3.306. Moreover, 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 (providing that 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). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's March 1988 enlistment examination was negative for any abnormal findings regarding the spine. In early April 1988, the Veteran was diagnosed with spina bifida occulta and unilateral spondylolisthesis at L5-S1. Per an April 1988 Physical Standards Board report, the Veteran complained of low back pain and acknowledged a history of such pain prior to service. He was unable to enter basic training due to back pain. According to an April 1988 DA Form 4707 finding, the spina bifida occulta and spondylolisthesis were present prior to, and not aggravated during, active duty service. In a July 1997 statement, the Veteran indicated that he injured his back doing pull-up exercises, and that the problems with his back began "just after doing the exercises." On his September 1998 substantive appeal, the Veteran indicated that he began to have problems with his back when, during training, he "had to run, jog and do different exercise[s]." A May 2000 private treatment record addressed the question of whether the Veteran's spine disability was related to service. The examiner "discussed with him that he does have spondylolisthesis at L5-S1 and this has a high association with spina bifida occulta." The Veteran testified at a Board hearing in May 2000. At that time, he indicated that he was first diagnosed with back problems when he entered the Army, after he began to experience pain during the first days of training. Following a day of exercise, he woke up in the middle of the night with back pain. A June 2002 emergency room report indicated that the Veteran had injured his back while moving furniture. In April 2006, the Veteran underwent VA examination. He explained that his back pain had continued to worsen since beginning in service. The examiner noted objective findings of record showing grade I spondylolisthesis of L5-S1, with bilateral spondylosis suggested, and moderate degenerative disease throughout the remaining lumbar vertebral disc spaces. The Veteran previously worked as a carpenter. Following physical examination, the examiner diagnosed the Veteran with mild degenerative disc disease of the lumbar spine and spina bifida occulta. There were no other forms of spina bifida other than spina bifida occulta. The examiner opined that the spina bifida occulta, a congenital defect, was likely present at birth. Per the examiner, the spina bifida occulta was "likely exacerbated when he was in the service when he was going through increased physical stress of training, and more strain on his back. This could have resulted in a flare up of low back pain." Concerning degenerative disc disease, the examiner opined that there was no evidence of that condition in service; the disease was first diagnosed in 1999. He opined that, considering the short term of military service, it was less likely than not that his degenerative disc disease was related to service. The examiner noted the possibility that the defect from the spina bifida occulta put more strain on his lumbar disc, leading to degenerative disc disease. An October 2006 private treatment record indicated that the Veteran had a "long standing history of spina bifida with a back injury." He had chronic joint pain "secondary to a lot of injuries." The treatment provider indicated that the Veteran "worked as a carpenter until his fall from a building onto a concrete pad." A September 2007 private MRI noted facet hypertrophy. Private treatment records from May 2009 indicated a diagnosis of degenerative joint disease. A May 2010 MRI report indicated findings consistent with bilateral spondylolysis and associated anterolisthesis at L5. X-rays from May 2010 noted "[n]o significant degenerative changes." The Veteran underwent additional VA examination in April 2013. That examiner diagnosed the Veteran with spina bifida occulta and grade 1 spondylolysis/ spondylolisthesis L5, with minimal osteoarthritis L4-5. After a thorough recounting of the appellant's medical history with relation to his spine disability, the examiner opined that the claimed back condition was "less likely as not . . . due to, the result of, or aggravated by any superimposed acquired back pathology as a result of any in-service occurrence or event, to include as a result of any aggravation or worsening of a spina bifida or other back condition that preexisted service." She noted that there was no history of trauma; rather, the Veteran had only done a few days of basic training. The examiner noted that the Veteran's congenital condition preexisted service, explaining that spina bifida occulta was present in 17 percent of the population, though frequently undetected and usually asymptomatic. Further, patients with spina bifida occulta also have an increased risk for spondylolysis (causing spondylolisthesis). She stated that spondylolisthesis was present on imaging in 1988, and that it was "unlikely that a few days of basic training changed anything in [the Veteran's] congenital condition, as can be confirmed by imaging results from 1988 (x-rays) and 2010 (MRI) which show essentially the same findings: 'spina bifida occulta . . . spondylolisthesis L5S1.'" Regarding the in-service back pain, the examiner opined that it was likely a mechanical/muscular strain due to increased activity. She acknowledged that the Veteran did develop mild arthritis "over the years," which was a natural progression due to aging, compounded by occupational and daily stresses and lifestyle. The examiner pointed out that, following service, the Veteran performed carpentry work, and, despite his denial of post-service injuries, there was evidence of record indicating such, including evidence of a 2002 back injury while moving furniture, and a fall from a building in 2006. Initially, the Board finds that there is clear and unmistakable evidence that the Veteran's spina bifida occulta and spondylolisthesis, identified only days into his active duty service, are congenital defects and preexisted service. 38 C.F.R. § 3.303(c). The Veteran does not argue otherwise. The Veteran, through representation, argues that either service connection should be granted on the basis of aggravation during service, or that a remand should be provided to obtain a new examination. Specifically, the Veteran argues that VA has failed to prove a lack of aggravation, and thus service connection must be granted. See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012). He posits that there is "no requirement of a specific injury or trauma in order for the preexisting condition to have been aggravated. Rather, service connection may be awarded for any aggravation of a preexisting disease or injury during service." Id. at 239. The Veteran's argument is legally incorrect. Service connection is warranted on the basis of aggravation only for the aggravation of "[a] preexisting injury or disease." 38 C.F.R. § 3.306(a). The terms "injury" and "disease" are central to this case; as noted above, "[c]ongenital or developmental defects . . . are not diseases or injuries within the applicable legislation." 38 C.F.R. § 3.303(c). Thus, as congenital defects are specifically excluded from the definition of "diseases" and "injuries," service connection based on aggravation cannot be granted. Rather, there must be evidence of a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90; see also Carpenter, 8 Vet. App. at 245. In this case, the Veteran argues that he woke up in the middle of the night with back pain after a day of exercise during which he pulled a muscle. He is competent to identify the onset of symptoms. See Layno, 6 Vet. App. at 470. While the Board maintains some questions regarding his credibility, as he has not consistently described the events during basic training (at times being specific, at other times more vague), and he denied to the April 2013 having injured his back since service, despite the October 2006 report to a private physician that he had fallen off of a building onto a concrete slab while doing construction work, and a separate report of a June 2002 injury incurred while moving furniture that required medical care, see Caluza, 7 Vet. App. at 511-12, the Board concedes for purposes of this appeal the Veteran's allegation that he pulled a muscle during basic training. While the Veteran has thus identified an in-service "injury," there is no competent evidence indicating that the injury caused "additional disability." To the extent that the injury caused pain, "pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted." Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Rather, there must be an additional disability related to a superimposed injury. The evidence does not support such a finding. Per the April 2013 examiner, the Veteran had essentially the same findings both in 1988 and in 2010, showing spina bifida occulta and spondylolisthesis. The in-service back pain, according to the April 2013 examiner, was a muscle strain, and there is no evidence suggesting that it created additional disability. The examiner explained that "[m]echanical type back pain or lumbosacral strain are episodes of acute back pain associated with specific activities or events . . . which are generally transient, self limited[,] and respond to rest and medication." Further, "[d]ifferent episodes [of mechanical type back pain] occur de novo, are caused by different activities at different times, and are not related to nor caused by other prior episodes." Notably, the April 2006 examiner indicated that the preexisting conditions were "exacerbated" by the Veteran's basic training regimen. While such might have been the case, that "exacerbation" does not mean additional disability. See VAOPGCPREC 82-90. There is no question that the Veteran's pain had its onset during service, as discussed above, but there is no evidence that the "exacerbation" was anything other than pain. The April 2013 examiner's opinion, as discussed in the preceding paragraph, explains the etiology of the "exacerbation" as a mechanical type back pain and/or a lumbosacral strain that was transient in nature. More importantly, in addition to the fact that x-rays following the "exacerbation" only demonstrated spina bifida occulta and spondylolisthesis, thus showing no additional disability incurred, objective testing continued to show no additional disability for many years after service. Therefore, the Board finds that the spina bifida occulta and associated spondylolisthesis, which clearly and unmistakably preexisted service, did not undergo a superimposed injury that created additional disability. Id. The April 2013 examiner also noted a current diagnosis of mild arthritis, but opined that it had developed after service, as a result of aging, occupational and daily stresses, and lifestyle, and was unrelated to service. Notably, the first suggestion of arthritis of record is many years after service. A September 2007 MRI noted facet hypertrophy, and a May 2009 report indicated degenerative joint disease. Notably, an x-ray report from May 2010 private examiner noted "[n]o significant degenerative changes." The Veteran has not argued, and the evidence does not suggest, that his arthritis began in the first post-service year. 38 C.F.R. §§ 3.307, 3.309 (2013). (Moreover, he did not have sufficient service to qualify for the 1 year presumption.) Further, there is no competent evidence of record suggesting an in-service onset of arthritis, or that the current arthritis diagnosis is related to active duty. As such, the Board finds that the Veteran's arthritis is not related to an event or injury in service. See 38 C.F.R. § 3.303. The evidence likewise does not demonstrate that the current degenerative disc disease diagnosis warrants service connection, including as the result of a "superimposed injury." The April 2006 examiner's opinion is probative in this regard, noting that while the disease might be caused by the spina bifida occulta defect, it was less likely than not related to service. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) (holding that a medical opinion that is not factually accurate, fully articulated, or based on sound reasoning, is not probative). The examiner explained that the disease was not diagnosed until years after service, and that the short period of active duty, even considering the Veteran's alleged muscle strain during training, was unlikely to have caused the disease. As with the arthritis diagnosis, there is no competent evidence of record suggesting an in-service onset of the disease, or that the current degenerative disc disease diagnosis is related to active duty. Service connection for degenerative disc disease is not warranted. 38 C.F.R. § 3.303. The Veteran's representative argued in a November 2013 submission that additional examination is necessary, because the April 2013 examination report failed to comply with the Board's most recent remand. Despite the appellant's contentions, the April 2013 examination report fully satisfied the Board's remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance). Specifically, it was argued that the examiner failed to provide an adequate rationale, made an improper credibility determination, and based her opinion on an inaccurate factual premise. Concerning the "inadequate rationale," the it was argued that the examiner's opinion was "based solely on her belief that there were too many subsequent injuries to tell whether or not the [V]eteran's service aggravated his back condition." This argument misconstrues the opinion. What the examiner actually stated, after opining that the Veteran's back condition was less likely than not related to service, including by way of aggravation, that "[i]t is . . . impossible to know what kind of occupational injuries to his back were sustained after separation from [active duty] . . . ." The examiner provided a complete rationale in support of her finding that there was not additional disability resulting from the Veteran's service, noting the lack of changes on objective testing from 1988 through 2010. She also provided a complete rationale for her findings regarding arthritis, citing the Veteran's medical history and the various post-service injuries addressed in the Veteran's medical treatment record. The opinions were fully supportive, and are probative. See Nieves-Rodriguez, 22 Vet. App. at 302. In no way was the examiner's opinion speculative. The appellant fails to pur forth a supporting rationale for the allegation that the examiner made an improper credibility finding. Regardless, other than pointing out discrepancies between the history the Veteran described at his April 2013 examination and the medical treatment records in the claims file, the examiner did not make a credibility determination. Likewise, the contention that the April 2013 opinion was based on an inaccurate factual premise is mistaken. Per the November 2013 argument, the opinion "was based on the inaccurate factual premise that his back did not bother him sufficiently to impact his work until 1999;" despite that charge, the examiner did not make such a finding in her opinion. The examiner stated that the Veteran "was able to engage in carpentry work after separation, from 1988-1999." The examiner made no findings regarding whether the back disability impacted the appellant's ability to work, but rather merely recounted the Veteran's history of post-service employment. Id. The argument in this regard is misleading, and mischaracterizes the opinion. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. The preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. ORDER Entitlement to compensation benefits for spina bifida pursuant to 38 U.S.C.A. § 1805 on the basis of being a child of a Vietnam Veteran is denied. Entitlement to service connection for a back disability is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs