Citation Nr: 1542543 Decision Date: 10/02/15 Archive Date: 10/13/15 DOCKET NO. 13-25 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Bordewyk, Counsel INTRODUCTION The Veteran served on active duty from November 1981 to August 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in pertinent part, denied the service connection for grade I spondylolisthesis L5-S1 (herein lumbar spine disability). The Veteran provided testimony during a videoconference hearing before the undersigned in April 2015. A transcript is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND During the Board hearing, the Veteran reported relevant private treatment with her primary care physician, although she did not provide that physician's name. She also reported treatment at Portsmouth Naval Hospital, including for her spinal fusion surgery in March 2000. As it appears that the treatment records associate with the claim are currently incomplete, a remand is necessary. The Veteran should be asked to identify all sources and dates of treatment and provide authorization for VA to obtain the associated records. In addition, the Board finds that a new VA examination and opinion must be obtained. An August 2013 VA examiner concluded that the Veteran's lumbar spine disability clearly and unmistakably existed prior to service and was not aggravated during service. This opinion was based largely on the service treatment records indicating that she fell by a pool and had been having back pain for about three years at the time she fell. However, at the Board hearing, the Veteran testified that her injury was incurred following a fall down the barracks stairs and that, while she had had a back injury in high school, she had not experienced any back pain prior to her enlistment. She further reported that she did not even have access to a pool at that time. A May 2015 statement from the Veteran's mother revealed that the Veteran had injured her upper back in high school, had received treatment from a chiropractor until the symptoms resolved, and had not experienced back pain again prior to falling down the stairs. A statement that month from her spouse indicated that the Veteran had called after the fall down the stairs and explained that that had happened and that she now had lumbar spine symptoms. The Board notes that every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to diseases or defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable demonstrates both a preexisting condition and that the condition was not aggravated in service. 38 U.S.C.A. § 1111 (West 2014); 38 C.F.R. § 3.304(b) (2014);Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In this case, the Veteran was accepted and enrolled for service and the induction examination did not reveal any lumbar spine disability. The presumption of soundness, therefore, applies. She, her spouse, and her mother are competent report that the Veteran's symptoms during high school had resolved and that she did not have any back problems prior to her fall during active duty service. The Board considers her reports to be credible. Hence, the evidence is not "clear and unmistakable" on the pre-existence prong. Even if the evidence could be deemed to clear and unmistakable regarding pre-existence, the evidence is not clear and unmistakable on the question of aggravation. In this regard, the Veteran reported that she began to experience lumbar spine symptoms for the first time following a fall down the barracks stairwell. Again, the Board finds her testimony and the statements from her mother and spouse to be credible regarding the onset of lumbar spine symptomatology after the fall during the stairs under active duty service. As such, the Board finds that the Veteran was sound at the time of enlistment. Based on the foregoing, a new examination and medical opinion is warranted. Additionally, the examiner should clarify whether the Veteran evidences a current congenital disease or defect of the spine. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (congenital diseases, but not defects, may be service connected); see VAOPGCPREC 82-90 (July 18, 1990) (a congenital or developmental "defect" may not be service-connected, although service connection may be granted for additional disability due to disease or injury superimposed upon such defect during service). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment, including with her primary care provider and the Portsmouth Naval Hospital. If the Veteran fails to complete necessary authorizations, tell her that she may obtain and submit the records herself. If any records cannot be obtained, inform the Veteran of this fact, tell her what efforts were made to obtain the records, and advise her of any additional development that will be undertaken. 2. Once all outstanding and available treatment records have been obtained and associated with the claims file, provide the Veteran with a VA spine examination with a qualified physician to determine whether any current lumber spine disability is related to service. The claims folder, including this remand and any relevant records contained in the virtual system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report. The examiner is requested to list all current lumbar spine disabilities. Then, the examiner should offer the following opinions: (a) Does the Veteran have a congenital or developmental defect or disease involving the lumbar spine? For VA purposes, a defect differs from a disease in that the former is "more or less stationary in nature" while the latter is "capable of improving or deteriorating." Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009). (b) If the a currently present disability is a developmental defect, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during her military service. If the answer to the above question is "Yes," please describe the resultant disability. (c) If the answer to question (a) is that any lumber spine disability is a congenital or developmental disease or does not have any congenital or developmental origin, please provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that that lumbar spine disability had its clinical onset during active service or is related to any in-service disease, event, or injury. Assume for the purposes of answering this question that the claimed condition did not exist prior to service. The examiner should provide reasons for the opinions that take into account the Veteran's reports of her history, the reported in-service injuries, exposures, or events, and her current symptoms. The examiner must specifically consider the Veteran's account of the in-service injury and subsequent symptoms provided in the April 2015 Board hearing, as it is considered credible. If the examiner discounts the Veteran's reports, he or she should provide a reason for doing so. If the examiner cannot provide an opinion without resort to speculation, the examiner must provide a reason why this is so, and must state whether there is additional evidence that would permit the opinion to be rendered. 3. Then readjudicate the appeal. The Veteran 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 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 2014). _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).