Citation Nr: 1343083	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  12-24 026	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to service connection for a low back disorder, to include scoliosis.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

M. Sopko, Associate Counsel



INTRODUCTION

The Veteran served on active duty from March 2010 to May 2010.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 


FINDING OF FACT

The Veteran does not have a back disorder that is causally related to service, including as due to aggravation of pre-existing congenital scoliosis. 


CONCLUSION OF LAW

A back disorder was not incurred in or aggravated by active duty, including as due to aggravation of pre-existing congenital scoliosis.  38 U.S.C.A. §§ 101, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.1, 3.102, 3.303, 3.307, 3.309 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Introductory Matters

In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet. App."). 

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). 

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 and 3.326(a) (2012).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in July 2010. The letter advised the Veteran of what evidence was required to substantiate his claim and of his and VA's respective duties for obtaining evidence. The letter provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. 

The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs) and the reports of VA examinations in September 2011 and August 2013. The examinations were adequate because they were based on thorough examinations, descriptions of the Veteran's pertinent medical history, and appropriate diagnostic tests. The examiners also provided rationales for the opinions. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). 

The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). 

Analysis of the Claim

Every Veteran shall be taken 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 the examination, acceptance, and 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. 

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In interpreting sections 1110 and 1131 of the statute and section 3.303(a) of the regulations, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that a three-element test must be satisfied in order to establish entitlement to service connection. Specifically, the evidence must show (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). Walker v. Shinseki, 708 F.3d. 1331, 1333 (Fed. Cir. 2013) (citing Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) ((quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)). 

Service connection may not be granted for congenital or developmental defects.  38 C.F.R. §§ 3.303(c) and 4.9.  See also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation).  However, VA's General Counsel (GC) has held that a congenital defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service-connection may be warranted for the resultant disability.  VAOPGCPREC 82-90 (July 18, 1990).  This GC opinion concluded that a defect differed from a disease in that a defect is "more or less statutory in nature" while a disease is "capable of improving or deteriorating."  See VAOPGCPREC 82-90 at p. 2. 

The presumption of soundness, however, does not apply when a condition is a congenital or developmental defect, as service connection cannot be granted for such disorder.  See Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993) (noting the difference between defect and disease and further noting that service connection may be granted if the congenital or developmental condition is a disease). 

The Veteran's service treatment records (STRs) reveal that he was not noted to have any back disorder upon enlistment.  The STRs show he was treated for back pain and diagnosed with scoliosis during his two months on active duty.  See April 13, 2010 record.  Despite the Veteran's assertions, the STR's do not detail any traumatic incidents to his back.  See, e.g., March 9, 2010 record (Veteran reported "no known trauma" to have caused his back pain) and April 13, 2010 record (Veteran reported "no trauma in basic military training").  

On April 28, 2010, the Veteran was recommended for discharge because he did not meet the minimum medical standards for enlistment.  He was informed that he "should not have been allowed to join the Air Force because [he] has symptomatic scoliosis.  See April 28, 2010 Memorandum.

Because of the STR's, the Veteran was afforded a VA compensation examination in September 2011.  The Veteran denied any "sudden onset of pain."  The examiner diagnosed him with scoliosis.  The Veteran again claimed to have "fractured" his back during basic training, but the examiner found this "fallacious."  The examiner concluded a back fracture never occurred.  Indeed, he found that the Veteran had congenital scoliosis, "meaning it was present from birth and did not occur during military service or due to military service."  Moreover, he found that the failure to note scoliosis upon enlistment was "an oversight" ... because the Veteran "clearly has scoliosis on examination today and [did] during the military."

The Veteran was afforded a second compensation examination in August 2013.  The examiner concluded the Veteran's claim of back trauma is "not borne out by the available information."  He noted that "scoliosis will naturally begin to cause more back pains as time progresses, and often causes increased muscular back pains when the muscles are used more than previously."  He further stated that the increased muscular usage during basic training was a factor in the timing of the increase in the back pain.  However, he concluded that the scoliosis was not aggravated beyond its natural progression by service.  "The progression was natural, and [it] was expected to occur."

This evidence reveals that the Veteran's pre-existing scoliosis is a congenital defect of the back that was not subject to a superimposed chronic disease or injury, as required to warrant service connection for a congenital defect.  See VAOPGCPREC 82-90. 

The Board has considered the written statements on file in support of the Veteran's claim.  The Board finds that the Veteran's post-service statements asserting that his back disability is due to service are not probative, given the medical opinions which rule out such a connection.  The Veteran's assertions are directly contradicted by the two VA examiners.  

The Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Service connection for a back disorder, including as due to aggravation of pre-existing congenital scoliosis, is denied. 



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs