Citation Nr: 1615203 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 04-39 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a lumbar spine disorder. 2. Entitlement to service connection for a psychiatric disability, to include depression and anxiety. 3. Entitlement to service connection for a skin disorder, to include pseudofolliculitis. 4. Entitlement to service connection for bilateral plantar fasciitis. 5. Entitlement to service connection for bilateral flat feet. REPRESENTATION Appellant represented by: Douglas Sullivan, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1983 to May 1986. This appeal is before the Board of Veterans' Appeals (Board) from June 2003 and July 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim for a lumbar spine disorder was remanded by the Board in March 2006, March 2007, April 2009, August 2010, and August 2012. In April 2013, the Board denied the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2013, the Veteran, through his attorney, and the Secretary of Veterans Affairs submitted a Joint Motion for Remand. In a December 2013 Order, the Court granted the Motion and remanded the case to the Board. In June 2014, the Board remanded the claim involving a lumbar spine disorder for a medical opinion. In February 2015, the Board remanded the above issues for further development. In October 2015, the Veteran testified at a videoconference hearing before the undersigned regarding the lumbar disorder. A transcript of the hearing is of record. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The issues of entitlement to service connection for a psychiatric disability, a skin disorder, bilateral plantar fasciitis, and bilateral flat feet are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is approximately evenly balanced as to whether the Veteran's lumbar scoliosis is a congenital or an acquired disorder that was permanently worsened beyond its natural progression during service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, lumbar scoliosis was aggravated during active service. 38 U.S.C.A. §§ 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION 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. § 1131; 38 C.F.R. § 3.303(a). Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9 (2015). VA's General Counsel has held, however, that there is a distinction under the law between a congenital or developmental "disease" and a congenital "defect" for service connection purposes. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. See VAOPGCPREC 82-90 (July 18, 1990). In this case, the Veteran contends that lumbar scoliosis was aggravated as a result of his physical activities in the Navy. He has been diagnosed with lumbosacral scoliosis with degenerative joint disease at L2 and L3. A December 1982 enlistment examination report reflects that the appellant's spine was normal, that no spine conditions were noted, and that the appellant denied ever having a history of recurrent back pain. Service treatment records show a January 1984 service physical report indicating costovertebral angle tenderness and a January 1984 chest X-ray reflecting thoracic scoliosis. No discharge examination report has been associated with the claims file. Three medical professionals have provided opinions addressing whether there is a relationship between the appellant's current lumbar disorder and his military service. In September 2010, after reviewing the claims file and examining the appellant, a VA examiner provided the following opinion: The Veteran has structural scoliosis, indicating that this is a pre-existing condition. He has back pain relative to it and this is not unexpected or inexplicable. It is also probable that during his military career, the situation was aggravated; hence, he did have aggravation of his preexisting low back condition, leading to pain. However, since leaving the military, he has worked for 23 years in the postal service handling mail and although he states that he does have pain while he is doing this, he can handle it and this is certainly due to his scoliosis. The diagnosis is structural scoliosis with associated degenerative joint disease. Thereafter, a Veterans Health Administration opinion was requested. In a February 2012 opinion, a VA orthopedic surgeon opined that the Veteran's scoliosis was congenital in nature, that it preexisted service but was not permanently affected by military service. In an April 2012 addendum, the doctor concluded that the Veteran's scoliosis was a congenital defect that was not subject to a superimposed disease or injury and had not worsened during service. The Veteran then submitted a July 2012 letter from Dr. Jose Alvarez, his chiropractor since 2001. Dr. Alvarez opined that the Veteran's reported Navy activities - pulling, lifting, painting, bending, shipboard firefighting, preventative maintenance of equipment, transferring supplies from ship to sea, and standing security watches - would have aggravated even a slight scoliosis. (The evidence shows that the appellant's duties included service on the USS Iowa (BB-61), a World War II era battleship. Hence, the Board concedes that he was required to perform very arduous physical duties inservice.) In April 2013, the Board denied the claim, relying in large part on the Veterans Health Administration opinion. In December 2013, the parties to the Joint Motion agreed that the Board had erred because the Veterans Health Administration examiner had not supported his conclusion with a rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). In an October 2014 addendum to the September 2010 VA examination, the VA examiner stated that the Veteran's scoliosis was not caused by his military service but may have been aggravated by it, although it subsequently resolved. The examiner noted, however, that he was unable to find the July 2012 chiropractor's opinion which he had previously been instructed to consider. In a November 2014 addendum, the VA examiner opined that the Veteran's idiopathic scoliosis, which usually expresses itself during adolescence and may include degenerative joint disease, was a congenital disease or disorder rather than a congenital defect. He further opined that while it was "very likely" that the condition had been aggravated during military service, because he worked as a mail carrier after service, it resolved even though it was also "very probable that he did have pain from time to time related to his scoliosis." Finally, the examiner stated that he agreed with Dr. Alvarez's July 2012 opinion that the Veteran's scoliosis had been aggravated during service, but added that he believed that after service, the aggravation had "abated to the extent that he was able to carry out the duties of mail handler." Initially, while the February 2012 Veterans Health Administration examiner opined that the appellant's scoliosis was a congenital defect, since he failed to provide a rationale for this conclusion, the Board affords that opinion to have little probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In contrast, in the November 2014 addendum, the VA examiner opined that the Veteran's scoliosis was a congenital disorder. Since he supported his conclusion with a fully-supported rationale, the Board assigns it more probative value. Id. The Board therefore finds that the appellant's scoliosis is a congenital disorder. As such, the Veteran may establish service connection by showing that his scoliosis was aggravated during service. The VA examiner concluded in the November 2014 addendum that it was very likely that the Veteran's scoliosis had worsened beyond its natural progression during service. While he expressed some doubt as to whether the worsening was permanent, the examiner nonetheless conceded that it was "very probable" that the Veteran had continued to experience pain due to his scoliosis after service. The 2014 VA examiner also indicated that he agreed with Dr. Alvarez who concluded that the typical duties of a Navy seaman would aggravate even a slight scoliosis. Prior to rendering his opinions, the 2014 VA examiner reviewed the claims file and, in September 2010, examined the Veteran. While it does not appear that Dr. Alvarez had access to the Veteran's claims file, his relevant medical experience as a chiropractor and over 10 years of treating the Veteran serves to bolster the November 2014 opinion. The only contrary opinion is that of the Veterans Health Administration doctor who, as observed in the December 2013 Joint Motion, failed to support his conclusion with a rationale. Stefl, 21 Vet. App. at 124. Hence, while the VA examiner's statement that the Veteran's scoliosis had abated after service casts some doubt as to whether the worsening was permanent, because the VA examiner has also conceded that the Veteran continues to experience pain as a result of his scoliosis, the Board finds that, considering the overall record, to include the Veteran's credible reports of severe back pain since service, the evidence is approximately in equipoise. As the reasonable doubt created by this approximate balance must be resolved in favor of the Veteran, entitlement to service connection for a lumbar spine disorder is granted. 38 U.S.C.A. §§ 1131, 5107; Wise v. Shinseki, 26 Vet. App. 517, 531 (2014). ORDER Entitlement to service connection for a lumbar spine disorder is granted. REMAND Regarding the remaining claims, in February 2015, the Board directed the AOJ to issue a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). There is no indication that this has been completed. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case addressing the issues of entitlement to service connection for a psychiatric disability, to include depression and anxiety; a skin disorder, to include pseudofolliculitis; bilateral plantar fasciitis; and bilateral flat feet. The appellant is hereby informed that the Board will exercise appellate jurisdiction over these claims only if he files a timely substantive appeal. 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 2014). ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs