Citation Nr: 1754069 Decision Date: 11/28/17 Archive Date: 12/07/17 DOCKET NO. 11-09 094 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for right hip degenerative joint disease. 2. Entitlement to service connection for a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1958 to February 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The Veteran was scheduled for a video hearing before the Board in August 2017. However, he cancelled the hearing. No request to reschedule the hearing has been received; thus, his hearing request is deemed withdrawn. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is necessary prior to appellate review. The Veteran contends that he has a low back and right hip disabilities related to service. The Veteran argues the physical requirement of service aggravated his back and hip. See November 2017 Appellate Brief. A veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability both existed prior to service and was not aggravated by service is required to rebut the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004); VAOPGCPREC 3-2003. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). If a preexisting disorder is noted upon entry into service, a veteran cannot bring a claim for service connection for that disorder, but the veteran may bring a claim for service-connected aggravation of that disorder. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2017). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). In that case, 38 U.S.C. § 1153 applies and the burden falls on the veteran to establish an increase in severity. See Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). If the presumption of aggravation under § 1153 arises, the burden shifts to the government to show a lack of aggravation by establishing "that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; see also 38 C.F.R. § 3.306; Jensen, 19 F.3d at 1417; Wagner, 370 F.3d at 1096. The Veteran's October 1958 enlistment physical examination report reflects that he had mild asymptomatic dorsal scoliosis to the right. A June 1959 service consultation report notes that the Veteran had a recurrence of back pain during basic training. As such, the Veteran's service treatment records show that a spine abnormality existed on his enlistment into service and that he was treated for back pain during service. See 38 U.S.C. §§ 1153; 38 C.F.R. § 3.304(b). Most recently, the Veteran was afforded a VA examination in April 2010 for his low back disability. The examiner diagnosed the Veteran with lumbosacral spine degenerative disk and joint disease. The examiner provided a negative nexus opinion, noting the Veteran's current back symptoms are due to a post-service worker's compensation injury. The examiner noted treatment of chronic lumbosacral strain condition without history of injury or evidence of continuity of symptomatology. Therefore, the Board finds an opinion is necessary to determine whether the Veteran's pre-existing scoliosis is a congenital disorder. If so, then an opinion is needed to address whether the Veteran's currently diagnosed lumbosacral spine degenerative disk and joint disease is a superimposed injury. If it is determined that the Veteran's scoliosis is not a congenital disorder then it must be determined whether the Veteran's pre-existing back condition was aggravated beyond it's natural progression by the Veteran's active duty service. Finally, an opinion with regard to whether the Veteran's currently diagnosed back disorder is related directly to his active duty service is required. McClendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). With regard to the claim for right hip degenerative joint disease, the Board notes that the Veteran was provided the most recent examination in February 2010. During that examination, the examiner concluded and opined that the Veteran's right hip disability was not etiologically related to any incident or injury during active service. Instead, the examiner stated that the current right hip disability is due to degenerative joint disease. However, in a December 1961 service treatment record, it is noted the Veteran complained of clicks in the hip region accompanied by pain. The treating physician diagnosed the Veteran with chronic synovitis of the right hip. On examination, such findings should be reconciled. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the Veteran for a VA examination to determine the nature and etiology of his low back disability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner must offer an opinion in response to the following: Is the Veteran's scoliosis a congenital or developmental defect or disease? The examiner is informed a disease generally refers to a condition that is considered capable of improving or deteriorating while a defect is generally not considered capable of improving or deteriorating. VAOPGCPREC 82-90 (1990). If it is a congenital or developmental defect, explain whether it is at least as likely as not (50 percent or greater probability) that there was a superimposed injury or disease in service that resulted in additional back disability. Considering a pre-existing injury, the examiner must determine whether a pre-existing low back disability was aggravated beyond the natural progression of the disease. If a low back disability was not aggravated during service, is it at least as likely as not (50 percent or greater probability) that a current low back disability was incurred during service or is related to any event or injury during service. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 2. Schedule the Veteran for a VA examination to determine the nature and etiology of his right hip disability. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated tests and studies are to be conducted. The examiner must offer an opinion in response to the following: The examiner must identify any current right hip disorder. The examiner must opine whether it is at least as likely as not (50 percent or greater probability) that a right hip disability was incurred during service or is related to any event or injury during service. If the examiner determines that no in-service injury occurred, the examiner must explain the apparent discrepancy between his/her conclusion and earlier findings in the record, specifically the December 1961 treatment note. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3. Thereafter, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order. The Veteran 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. §§ 5109B, 7112 (2012). _________________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).