Citation Nr: 1752386 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-20 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a back disability, to include a congenital deformity of the lumbar spine with spondylolysis, lumbosacral strain and degenerative arthritis of the spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L.J. Bakke, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to January 1968. This case arises before the Board of Veterans Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut. In June 2012, the Veteran testified at a hearing before the undersigned Veterans Law Judge in Hartford, Connecticut. A transcript of the hearing is present in the claims file. Since the Veteran's original claim, he has been found to have degenerative arthritis of the spine. This disability has thus been added to the issue on appeal, and the issue is rephrased as on the front page of this decision. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The claim was previous remanded in May 2014, March 2015, October 2015 and May 2017. The development requested having been provided, the claim is now again before the Board. FINDINGS OF FACT 1. The evidence establishes that transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion, diagnosed during active service, is a congenital defect. 2. There was no superimposed disease or injury of the congenital defect during active service, and no permanent worsenting of transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion during active service or as a result of any incident therein. 3. Lumbosacral strain and degenerative arthritis of the spine are not the result of active service or any incident therein, and arthritis of the spine was not manifest within one year after discharge from active service. CONCLUSION OF LAW The criteria for service connection for back disability, to include for transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion, lumbosacral strain, and degenerative arthritis of the spine, are not warranted. 38 U.S.C.A. § 1110, 1153, 5107 (West 2014); 38 C.F.R. § 3.102, 3.303, 3.306, 3.309, 4.9 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter dated in a June 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1131 (West 2014). Generally, the evidence must show: (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. Shedden v. Principi, 391 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires that there is evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). 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. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013) (holding that the term "chronic disease" in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a) (to include arthritis). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. In this case, arthritis is a listed as a "chronic disease" under the regulation. However, arthritis was not diagnosed during active service, nor were there observed a combination of manifestations sufficient to identify it as a disease entity. As will be discussed below, clinical findings noted during active service showed transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion. Moreover, post-service clinical findings of degenerative arthritis of the spine were first noted in 2009-many years after the one-year presumptive period following the Veteran's discharge from active service in 1968. Therefore, the presumptive service connection provisions do not apply. Service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the appellant seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, at 394-97. In this regard, the presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C.A. § 1110 and 1111; see also 38 C.F.R. § 3.303(c); see also Quirin, at 394 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). For purposes of determining whether a disorder is a congenital defect or a familial disease, VA interprets the term "disease" in 38 U.S.C.A. § 310, 331, and the term "defects" in 38 C.F.R. § 3.303(c), as being mutually exclusive. "Disease" is broadly 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 (citing Dorland's Illustrated Medical Dictionary 385 (26th Ed. 1974)). On the other hand, the term "defect," viewed in the context of 38 C.F.R. § 3.303(c), is defined as a structural or inherent abnormality or conditions which are more or less stationary in nature. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect," indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 F.2d 569, 572 (D.C. 1975). If it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin at 396-97. VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. The Veteran is seeking service connection for a back disability, to include a congenital deformity of the lumbar spine with spondylolysis, lumbosacral strain and degenerative arthritis of the spine. To this end, he has stated and testified that he experienced back pain in service, and was on a profile. After discharge he continued to have problems with his back to the present. Initially, the Veteran reported, he self-treated with aspirin and rest, but in the last two years of post-service employment, his back he experienced increased difficulty at his job as a welder. While he continued to be able to weld in the shop at his bench, it became difficulty to weld outside the shop, where he might have to get into a tight spot. See June 2012 Board Hearing Transcripts, pp. 12-13; see also June 2010 Statements of the Veteran, rec'd 6/25/2010, 8/31/2015. In the June 2012 hearing the Veteran's representative argued that, although the Veteran entered service with a congenital deformity of the lumbar spine, the condition was aggravated during active service. She reported that the Veteran's duties as an infantryman required him to walk long distances carrying a rucksack of over 40 pounds not including weapons and ammunition. She pointed out that he walked an area over 15 to 20 miles five to seven hours or more daily while guarding the demilitarized zone in Korea and, while not walking the perimeter he and other soldiers patrolled in an armored personnel carrier (APC). The representative reported one incident in which the APC driver went off a small embankment and the Veteran got banged up. See Transcripts, pp. 2-3. VA examinations conducted in July 2014, August 2015, and June 2017 reflect diagnoses of lumbosacral strain and degenerative arthritis of the spine. In addition, private treatment records show findings of lumbar spondylosis with osteoarthritic changes in 2012, and results of private X-ray results taken show probable facet degenerative joint changes at L5-2 with mild multilevel endplate spondylosis in 2009. See June 2012 Clinical Findings Back (Levin), rec'd 6/29/2012; and Private Treatment Records (Comprehensive Ortho & Muscle), p. 63, rec'd 6/17/2011. Finally, VA treatment records reflect complaints of and treatment for chronic back pain. These finding and diagnoses meet the first element of Shedden. The Veteran's report of medical history and examination at entrance to active service reflect no back or spine complaints, abnormalities, diagnoses or other findings. During active service, however, the Veteran was treated for complaints of back pain. Results of X-rays revealed transition L5 with spondylolysis, and he was given a permanent profile. His reports of medical history and examination at discharge showed congenital deformity of L5, L6 and S1 described as lumbarization of the sacrum without six lumbar vertebrae. See STRs, pp. 10, 13, 17, 33. These findings meet the second element of Shedden. The critical element in this case is the third element of Shedden, a finding of an etiological link, or nexus, between the inservice findings of congenital abnormality and the current diagnoses of lumbosacral strain and degenerative arthritis of the spine. After a review of all the lay and medical evidence, the Board finds that the weight of the evidence demonstrates that (1) the spine abnormalities the Veteran evidenced during active service, found by x-ray to be transitional L6 with spondylolysis and described at discharge as congenital deformity of L5, L6, and S1 without spondylalysion, clearly and unmistakably pre-existed active service, and (2) the currently diagnosed lumbosacral strain and degenerative arthritis are not the result of aggravation of this pre-existing disease. In June 2017, the Veteran underwent his most recent VA examination, pursuant to the May 2017 remand. In pertinent part, the June 2017 VA examiner diagnosed lumbosacral strain and degenerative arthritis of the spine. As to whether or not the transitional L5 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion is considered a congenital or developmental defect or disease, the examiner reported: [B]y definition: Lumbosacral transi[tio]nal vertebrae (LSTV) [] are congenital spinal anomalies defined as either sacralization of the lowest lumbar segment or lumbarization of the most superior sacral segment of the spine. Source: American Journal of Neuroradiology, Vol 31, Issue 10 (Nov. 1, 2010). Please note: [V]eteran had 2 x-ray of the spine : (sic) June 29, 2014: which was normal with no evidence of sacralization nor spondylolysis June 7, 2017: with degenerated disc disease. If this was a continuum of his LSTV, he should have changes in the spine earlier than 2017. His x[-ra]y in 2014 was normal. His present spine changes are more consistent with natural progression of age(70y/o) , (sic) occupation and partly attributed to his obesity. See June 2017 VA DBQ Examination for Back, p. 10. As to whether or not the Veteran sustained a superimposed inservice injury or disease that resulted in additional back injury to include the current diagnosis of lumbosacral strain and degenerative arthritis, the examiner opined that it was less likely than not that the claimed condition was incurred in or caused by the claimed in-service injury, event or illness. See June 2017 VA DBQ Medical Opinion, p. 1. As rationale, the examiner explained: On separation exam, exam of the spine was normal, this was in 1967. There was no evidence of chronicity of back pain till (sic) 2009, which is 41 years[]after his departure from service. [P]lease note: 1977 physical exam done 4/18/1977 ([when the Veteran was employed as a] (Vertical Turret Lathe Oper) spine no finding no complaints of back pain .. healthy 30 y/o male 1997 exam at [place of employment]: negative exam for the spine, no complain[t] about back pain. See Id., pp. 1-2. The examiner was asked to opine as to whether or not the evidence clearly and unmistakably shows that transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion, if a disease, pre-existed active service and, if so, whether the evidence clearly and unmistakably shows that the condition was not aggravated by service or whether any increase in disability, including the currently diagnosed lumbosacral strain, was due to the natural progression of the disease. The examiner observed: This is a pathologic condition of the spine, however[] his most recent x-ray mentioned the presence of degenerative changes which was not noted on the x-ray done in 2014. See June 2017 VA DBQ Examination for Back, p 11. The examiner further explained: [The Veteran's] complain[t] of back pain did not occur till (sic) 2009 which is 41 years after his separation from the service. Review of records showed an exam done while he was [(employed at) Employer] as follows: 1977 physical exam done 4/18/1977 (Vertical Turret Lathe Oper) spine no finding no complaints of back pain .. healthy 30 y/o male 1997 exam at [Employer]: negative exam for the spine, no complain[t] about back pain[.] [I]n summary: this was not aggravated by service, there was no definitive documentation of the presence of the disease with radiologic findings. Id. Although the examiner responded to that inquire, it appears clear that the overall description of the in-service findings are more consistent with a congenital defect, which is not considered a disease or injury. Therefore, the presumption of soundness does apply. In any event, it is also clear that the examiner felt that there was no superimposed disease or injury in service, nor was the defect otherwise aggravated therein. Finally, as to whether or not the evidence showed a direct etiological relationship between any back disability that is not congenital and did not pre-exist service, the examiner opined that it was less likely than not that the claimed back condition to include lumbosacral spine and degenerative arthritis condition was incurred in or caused by the claimed inservice injury, event or illness. As rationale, the examiner explained: [R]eview of records did not show chronicity of the back pain till (sic) 2009 which is 41 years after his separation from service. His lumbosacral strain is affected [b]y his posture[,] by his activities of daily life and by his weight. See June 2016 VA DBQ Medical Opinion, p. 2. The Board finds the June 2017 VA examination report and opinions to be both competent and adequate. The June 2017 VA examiner is an MD. In addition, the Board finds the opinion to be of probative weight. The examiner, as noted, a medical doctor, demonstrated close review of the Veteran's claims file, including previous VA examination reports, service treatment records, post-service employment medical records, private medical records, and VA treatment records including clinical findings as reported by previous clinicians, treating physicians, and examining physicians and health care providers. The examiner examined the Veteran and diagnosed current back disabilities in conjunction with analyzing the evidence to provide the reported opinions. The report contains careful notations from the claims file and the Veteran's medical history as reported during examination, including clinical findings, the Veteran's reports of pain during active service, and his reports of moving vehicle accidents during and post active service. In addition, the examiner referred to medical literature to define LSTV. Thus, although the examiner's opinions and observations were sometimes awkwardly worded, the June 2017 VA examination report is sufficient to establish that the medical evidence does not support a finding that of an etiological link between the Veteran's current back conditions and any incident of active service. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Notwithstanding, and given the numerous remands in this case, the Board wishes to clarify two items. First, the Board is aware that the June 2017 VA examination report does not specifically describe the Veteran's assertions that he sustained injury to his back which marching and carrying heavy gear on active duty, or his description of the inservice APC incident. Yet, these incidents were described in previous examination reports and in the Veteran's June 2012 testimony before the Board. See June 2016 VA Spinal Cord Injury Examination Opinion and January 2017 Addendum; August 2015 VA DBQ Examination for Back, p. 2-3; and July 2014 VA DBQ Examination for Back, p. 2-3; see also June 2012 Transcripts. It is noted that the examiner stated the VA electronic folder and CPRS had been reviewed in conjunction with examining the Veteran in person. See June 2017 VA DBQ Examination for Back, p. 1. Given the examiner's detailed notes from the record, as reported in the June 2017 VA examination report noted above, the Board accepts that the previous VA examinations, opinions, and Veteran's lay statements as well as testimony were part of the same careful review and analysis. Second, the Board observes that the June 2017 VA DBQ examiner's summation that "there was no definitive documentation of the presence of the disease with radiologic findings" (see Id., p. 11) appear to indicate that the examiner did not find that the service treatment records sufficiently supported the finding of a congenital abnormality or, in other words, that the LSTV observed in active service was not confirmed by clinical findings. However, after careful analysis, the Board finds that the examiner was not questioning the clinical finding of LSTV during active service. The inservice findings of LSTV by x-ray are clearly noted and interpreted as such: X rays - Transitional L6 [medical abbreviation indicating "with"] Spondylolysis (underline in original). see STRs p. 17. Rather, it is more logical that the examiner meant to say it was not possible to compare those clinical findings of LSTV from active service to those clinical findings post-service without the actual x-rays, or their radiological interpretations, to review. As for the inservice clinical findings of congenital abnormalities themselves the Board reiterates that service connection is not available for congenital defects. Quinn v. Shinseki, 22 Vet. App. 390 (2009). In the absence of superimposed disease or injury, service connection may not be allowed for transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion because these findings, in and of themselves, are not a disease or injury within the meaning of applicable legislation relating to service connection. 38 C.F.R. § 3.303(c), 4.9. VA regulations specifically prohibit service connection for congenital defects unless such defect was subjected to a superimposed disease or injury which created additional disability. See VAOPGCPREC 82-90. There are no other opinions, findings or statements of record demonstrating that the Veteran's currently diagnosed lumbosacral strain and degenerative arthritis of the spine are the etiological result of active service or any incident therein. The Board notes that as the finder of fact, it is required to weigh and analyze all the evidence of record and to make determinations as to the credibility of the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1998). "The evaluation and weighing of evidence and the drawing of appropriate inferences from it are factual determinations committed to the discretion of the fact finder." Bastien v. Shinseki, F.3d 1301, 1306 (Fed. Cir. 2010). The Board may permissibly draw inferences from the medical evidence, including an overall reading of a VA report. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Acevedo v. Shinseki, 25 Vet. App. 286, 293-94 (2012) (the Board is permitted to draw inferences based on medical reports so long as the inference does not result in a medical determination). In reaching its determination, the Board has considered the Veteran's June 2012 testimony and his lay statements. The Veteran is competent to state that he felt pain in his lower back following patrols, the APC incident, and other motor vehicle accidents during active service, and that he has felt pain in the same lower back area from that time to the present. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). However, neither the Veteran nor his representative has asserted, and the record does not show, that he has the requisite medical credentials to provide clinical findings and opinions as to the specific issue in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, the Board finds that the preponderance of the evidence of record is against a finding of service connection for back disability, to include transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion, lumbosacral strain and degenerative arthritis of the spine, and the appeal must be denied. As the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for back disability, to include for transitional L6 with spondylolysis and congenital deformity of L5, L6, and S1 without spondylalysion, lumbosacral strain and degenerative arthritis of the spine is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs