Citation Nr: 1756775 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 14-08 432 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Pelican, Counsel INTRODUCTION The Veteran served on active duty in the Army from March 1989 to July 1992, with service in Southwest Asia from January 1991 to May 1991. The Veteran was awarded the Southwest Asia Service Medal with three Bronze Stars, among other decorations. This case comes before the Board of Veterans' Appeals (the Board) from a September 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in November 2016. A transcript of that proceeding has been associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The most recent VA treatment records in the claims file are dated in November 2010. However, a May 2013 Report of Hospitalization and a February 2015 letter from the Veteran's treating clinician indicate there are outstanding relevant VA treatment records. Moreover, during the November 2016 Hearing, the Veteran indicated he was receiving physical therapy for his back and may be receiving additional therapy in the future. See Hearing Transcript, pg. 6. As these outstanding records may be relevant to both of the Veteran's claims, on remand, any outstanding VA medical records should be associated with the claims file. With respect to the Veteran's back claim, he was afforded a VA examination in July 2010. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine. In rendering a negative nexus opinion, the examiner opined that the Veteran's preexisting scoliosis and back pain were not aggravated beyond normal progression by military service. However, the examiner did not provide a rationale for that conclusion. Further, the examiner noted that an October 2007 radiology report indicated that the Veteran's bony lumbar canal was diffusely narrowed on a developmental basis, and thus it was more likely that his preexisting anatomy was a major contributor to the Veteran's current condition. The examiner's statement suggests the Veteran's degenerative disc disease may be developmental in nature. Congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation. See 38 C.F.R. §§ 3.303(c), 4.9 (2017); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). VAOPGCPREC 82-90 (July 18, 1990) (reissuing General Counsel Opinion 01-85 (March 5, 1985)) in essence held that a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexists a claimant's military service, but could be granted service connection if manifestations of the disease in service constituted aggravation of the condition. Indeed, diseases of hereditary origin may be considered to have been incurred in service if their symptomatology did not manifest itself until after entry on duty. The mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease. Only when the symptomatology and / or the pathology exist can he or she be said to have developed the disease. At what point the individual starts to manifest the symptoms of, or have pathological changes associated with the disease is a factual, not a legal issue. Even when an hereditary disease has manifested some symptoms prior to entry on duty, it may be found to have been aggravated during service if it progresses during service at a greater rate than normally expected according to accepted medical authority. VA VAOPGCPREC 67-90 (July 18, 1990), published at 55 Fed. Reg. 43,253 (1990); see also VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990). Accordingly, the case is REMANDED for the following actions: 1. Take appropriate action to obtain VA treatment records not already of record. If VA is unable to obtain these records, the Veteran must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and relationship to service of his claimed back disability. The written report must reflect that the electronic record was reviewed. Based on examination of the Veteran and review of the electronic record, the examiner is asked to provide an opinion on the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's scoliosis disability was aggravated (i.e., permanently increased in severity) beyond the natural progression of the disability during active service. Please provide a complete explanation for the opinion. b) If so, was any increase clearly and unmistakably (obviously, manifestly or undebatably) due to the natural progress of the disease. Please provide a complete explanation for the opinion. c) Whether the Veteran's degenerative disc disease is a congenital / developmental defect or disease. [Note: 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. Please provide a complete explanation for the opinion. d) If it is a congenital / developmental defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional back disability. Please provide a complete explanation for the opinion. e) If it is a disease, state whether it is clear and unmistakable (obvious, manifest, and undebatable) that degenerative disc disease preexisted active service. Please provide a complete explanation for the opinion. f) If so, is it clear and unmistakable (obvious, manifest, and undebatable) that preexisting degenerative disc disease WAS NOT aggravated (i.e., permanently worsened) during the Veteran's service or is it clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. Please provide a complete explanation for the opinion. g) If there is not clear and unmistakable evidence that degenerative disc disease preexisted service and was not aggravated by service, whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran's degenerative disc disease was incurred in or is otherwise related to service. In responding to the above inquiries, the examiner's attention is directed to the Veteran's documented treatment for back pain and injuries in February 1989, March 1989, October 1991, November 1991, and December 1991; the June 2010 statement from the Veteran's friend H. F. regarding his multiple in-service back injuries during service; and the Veteran's November 2016 testimony regarding his multiple in-service back injuries. See Hearing Transcript, pp. 3-4. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The rationale for any opinion rendered must be provided. If the examiner is unable to offer any opinion without speculation, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 3. Review the examination reports for compliance with the Board's directives. If necessary, any corrective action should be undertaken prior to recertification to the Board. 4. After receipt of the above, undertake any additional development necessary in light of the evidence received. Then readjudicate the Veteran's claims. If a complete grant of the benefit requested is not awarded, issue a Supplemental Statement of the Case to the Veteran and his representative, and provide them an opportunity to respond before returning the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ K. J. ALIBRANDO 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).