Citation Nr: 18140762 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 10-16 585 DATE: October 5, 2018 REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hip is remanded. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. The Board denied these claims in a July 2016 decision. In December 2017, the United States Court of Appeals for Veterans Claims (Court) vacated the Board’s decision with respect to these issues. The Court found that the July 2012 and October 2015 VA examination reports were inadequate because the examiners failed to consider statements made by the Veteran and his wife, that he was injured due to heavy lifting in service and that he has experienced continuous pain since the injury. The Board remanded the claims in June 2018 so that the Veteran could undergo new VA examinations and so that the examiner could render an opinion as to whether the Veteran’s back and left hip disabilities are connected to service, “given the existence of the Veteran’s credible lay evidence.” The Veteran underwent VA examinations in July 2018, and the examiner acknowledged that the Veteran was injured while engaging in heavy lifting in service. However, he failed to acknowledge that the Veteran’s credible testimony that he has had back and hip pain continuously since service. The United States Court of Appeals for Veterans Claims (Court) in Stegall v. West, 11 Vet. App. 268 (1998) held that a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Additionally, the Board notes that the July 2018 examiner pointed out that had spina bifida occulta of L3, which is a common congenital condition. However, this condition was not noted upon entrance into service. The Veteran is therefore presumed to have been in sound condition upon entry into service. The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the” preexisting condition. 38 U.S.C. § 1153. In light of the above, the Board finds that a remand is warranted for the purpose of obtaining an addendum opinion that addresses the Veteran’s credible reports of continuity of symptomatology since his in-service injury and fully considers preexisting spina bifida. The matters are REMANDED for the following action: Obtain an addendum opinion from the July 2018 VA examiner. The examiner must opine whether each disability is at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s credible account of sustaining an in-service injury while heavy lifting, and having continuous pain since the injury. The examiner should render an additional opinion addressing: (a) whether any back condition preexisted service. In this regard, if a preexisting congenital condition, to include spina bifida, if identified, the examiner should clarify whether such condition is a congenital defect or disease. If a defect, the examiner should opine whether it is at least as likely as not that a superimposed injury or disease arose in service to result in additional disability (and identify that additional disability). If a disease, or if deemed that a not congenital in nature, then the examiner should state whether it is clear and unmistakable that the disorder preexisted service and also whether it is clear and unmistakable that the disorder was NOT aggravated in service beyond its natural progression. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel