Citation Nr: 1803318	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-16 825	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUES

1.  Entitlement to service connection for a middle and low back disorder.

2.  Entitlement to service connection for radiculopathy of the lower extremities.

3.  Entitlement to service connection for a left shoulder disorder.

4.  Entitlement to service connection for a right knee disorder.

5.  Entitlement to service connection for a sleep disorder.


REPRESENTATION

Appellant represented by:	The American Legion




WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Henriquez, Counsel


INTRODUCTION

The Veteran had active duty service from July 2008 to October 2008.

These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.

In February 2017, the Veteran testified at a video hearing.  A transcript of the hearing is of record.


FINDINGS OF FACT

1. The Veteran's currently diagnosed anomaly of the spine is a congenital or developmental condition, and was not subject to a superimposed disease or injury during active service.

2.  The Veteran's radiculopathy of the lower extremities has been related to his congenital back defect.  

3.  The Veteran does not have a current left shoulder disorder.

4.  The Veteran does not have a current right knee disorder.

5.  The Veteran does not have a current sleep disorder.    


CONCLUSIONS OF LAW

1.  The criteria for service connection for a middle and low back disorder have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F. R. § 3.303 (2017).

2.  The criteria for service connection for radiculopathy of the lower extremities have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F. R. § 3.303 (2017).

3.  The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F. R. § 3.303 (2017).

4.  The criteria for service connection for a right knee disorder have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F. R. § 3.303 (2017).

5.  The criteria for service connection for a sleep disorder have not been met. 38 U.S.C. § 1110 (West 2012); 38 C.F. R. § 3.303 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017).

Service Connection 

Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.  38 U.S.C.A. 
§ 1111; 38 C.F.R. § 3.304 (b) (2017).  Only such conditions as are recorded in examination reports are considered as noted.  Id.  

Congenital and developmental defects are not considered disabilities for VA compensation purposes.  38 C.F.R. §§ 3.303(c), 4.9.  However, if a claimant develops a superimposed disease or injury during service, such superimposed disease or injury may be subject to service connection.  VAOGCPREC 82-90, 56 Fed. Reg. 45711 (1990).

Middle and Low Back Disorder and Radiculopathy of the Lower Extremities

The Veteran's service treatment records document complaints of back pain with pain radiating to the legs.  The Veteran was seen on several occasions in July and September 2008.  In a July 15, 2008 treatment record, the Veteran complained of having pain in the back on and off for a couple of weeks when lifting his duffle.  He denied trauma to the back but said he had similar pain with lifting prior to service.  In a September 24, 2008 treatment record, the Veteran complained of a chronic history of lower back pain stating he did have back stiffness and pain which existed prior to service.  However, during his second week of training, it started to bother him more and more, and he was having problems with muscle spasms and tightness as well as soreness in the lower back.  He was diagnosed with congenital abnormalities of the thoracic and lumbar spine.  The Veteran indicated that he did not desire to continue his military service.  He was discharged from active duty service in October 2008.        

The Veteran sought private treatment for his back pain in January 2009.  The private physician noted that x-rays taken in November 2008 showed no evidence of spondylitis or sacroiliitis.  The Veteran was diagnosed as having congenital abnormalities of his spine with secondary mechanical discomfort.  The private physician stated that there was no evidence clinically or radiographically for inflammatory back pain, i.e., ankylosing spondylitis or a seronegative spondyloarthropathy in general.  

In a November 2010 examination report from a private chiropractor, the Veteran was diagnosed as having sciatica neuritis, cervical myofascitis and spinal enthesopathy.

On VA examination in April 2013, the Veteran was diagnosed as having an anomaly of the spine, congenital.  The examiner opined that the Veteran's congenital back condition was not as least as likely aggravated or made materially worse beyond the natural course because of injury or event during military service.  The rationale provided was that the Veteran's back condition was noted early in the course of basic training during active service.  X-rays taken in September 2008 showed fused segments at T4-T5, T6-T7, and mild left convex curve in the lumbar spine with L2 hemi-vertebra.  There was a 13th rib noted on the left as well.  He had a negative assessment for inflammatory arthritis and ankylosing spondylitis.  The Veteran was placed on activity profile until discharge.  He did not report pain in the back at the time of his separation on October 21, 2008.  The examiner explained that on and off symptom pattern is most consistent with a temporary exacerbation as opposed to aggravation where symptoms advance progressively.  The examiner noted that current physical examination was noted for full but painful motion.  Current x-rays were noted for congenital changes and some early facet arthritis of the lower segments.     

In this case, there is no evidence of symptoms of a middle and low back disorder prior to the Veteran's entering active service in May 2008, and he is presumed to have been in sound condition at enlistment.  However, the presumption of soundness does not apply to congenital or developmental conditions, as those conditions are not considered diseases or injuries for VA purposes.  See Quinn v. Shinseki, 22 Vet. App. 390, 396 (2009).  Moreover, 38 C.F.R. §  3.303(c) provides that, due to universally recognized medical principles, the notation or discovery of certain conditions during service, including congenital malformations, constitutes clear and unmistakable proof that such conditions preexisted service.  Evidence of record clearly reflects that the Veteran's current anomaly of the spine is a congenital or developmental nature.  Thus, the fact that such a condition was not noted on his May 2008 entrance examination does not preclude it from being characterized as a preexisting condition.

Evidence of record also does not show aggravation of this congenital condition by a superimposed disease or injury during active service, resulting in additional disability.  Here, the Board finds that evidence of record is against any finding that the preexisting anomaly of the spine underwent any permanent increase in symptoms or any increase in severity during service resulting in additional disability.  In fact, the April 2013 VA examiner specifically opined that evidence does not show any aggravation of the spine condition during active duty service.  

The Board considers the findings by the April 2013 VA examiner to be of great probative value in this appeal.  As such, the Board finds that the most persuasive medical evidence that specifically addresses the question of whether the Veteran's congenital back disorder was aggravated during active service weighs against the claim.  Accordingly, service connection for a back disorder is denied.  

The Veteran also alleges that he has radiculopathy of the lower extremities which should be service connected.  In this case, both the service treatment records and private chiropractic treatment records document complaints of radiculopathy and sciatica.  However, the service treatment records indicate that such symptoms were related to his congenital disorder of the thoracic and lumbar spine.  Current treatment records do not indicate otherwise.  Therefore, service connection for radiculopathy of the lower extremities on a secondary basis is moot, as service connection for a back disorder has been denied. 



Left Shoulder, Right Knee and Sleep Disorder

The Veteran contends that he is entitled to service connection for a left shoulder disability, right knee disability, and a sleep disorder, as each of these disorders were incurred during active duty service.  

The Veteran's service treatment records reflect no complaint, finding, or diagnosis with respect to the claimed left shoulder disorder, right knee disorder or sleep disorder.  Moreover, post-service, the medical evidence of record also fails to show any treatment or a diagnosis of a left shoulder, right knee or sleep disorder.

In this case, there is no evidence of record to show that the Veteran has a left shoulder disorder, a right knee disorder or a sleep disorder.  The Veteran has identified private treatment records which have been obtained but they make no reference to any symptoms or complaints with respect to the left shoulder, the right knee or a sleep disorder.  It is the Veteran's general evidentiary burden to establish all elements of the claim, including evidence of a current disability.  38 U.S.C.A. 
§ 5107 (a).  In this instance, the Veteran has not provided any medical evidence showing treatment or diagnosis of any left shoulder disorder, right knee disorder or sleep disorder since separation.  Without any evidence of current disabilities, the claims must fail.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  The preponderance of the evidence does not support a grant of service connection for a left shoulder disorder, a right knee disorder and a sleep disorder.







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ORDER

Entitlement to service connection for a middle and low back disorder is denied.

Entitlement to service connection for radiculopathy of the lower extremities is denied.

Entitlement to service connection for a left shoulder disorder is denied.

Entitlement to service connection for a right knee disorder is denied.

Entitlement to service connection for a sleep disorder is denied.




____________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs