Citation Nr: 18143758 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-14 367 DATE: October 22, 2018 REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a left knee disability, to include as secondary to a service-connected right foot disability, is remanded. Entitlement to service connection for a right knee disability, to include as secondary to a service-connected right foot disability, is remanded. Entitlement to service connection for bilateral loss of vision is remanded. Entitlement to service connection for a breathing disability is remanded. Entitlement to service connection for a back disability, to include lumbar degenerative disc disease (DDD), mild facet arthropathy, and spina bifida occulta, is remanded. Entitlement to an increased disability rating in excess of 30 percent for atypical psychosis with delusions is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1982 to December 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Department of Veterans Affairs (VA) regional office (RO). In June 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is in the record. The Board finds that further development and adjudication is necessary to comply with VA's duty to assist the Veteran to obtain evidence needed to substantiate his claim. As an initial matter, at the June 2017 Board hearing, the Veteran requested an extension to submit private treatment records which relate to his claimed disabilities. See June 2017 Hearing transcript. While he did not submit them, the VA is on notice that the records exist. On remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain any such private records the Veteran believes may be relevant to his appeal. 1. Entitlement to service connection for a bilateral loss of vision and breathing disability are remanded. The Veteran contends his loss of vision and breathing disability are related to active service. While the record does not contain any diagnosis for loss of vision or a breathing disability, as described above, the Veteran requested an extension to submit private treatment records relating to these disabilities. Indeed, at the Board hearing he indicated he received private treatment for his vision and reported that he received inpatient treatment at a Florida hospital in 1988 for his breathing disability because he was “choking at night and waking up in my sleep.” See June 2017 Hearing transcript. While the Veteran failed to submit any private records since the Board hearing, the VA has not made an attempt to help the Veteran obtain any such private records. As such, and to ensure the duty to assist, on remand the AOJ should attempt to obtain any such private records. 2. Entitlement to service connection for a neck disability and bilateral knee disability are remanded. The Veteran contends his neck disability and bilateral knee disability are related to his active service. In addition, he contends that his bilateral knee disability is secondary to his service-connected right foot disability. See June 2017 Hearing Transcript. In this regard, the Veteran indicated that his neck and bilateral knee pain is severe enough to cause functional impairment. See June 2017 Hearing transcript. Although the evidence does not reflect a diagnosed disability, pain with functional impairment may be considered a disability for VA purposes. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Veteran stated his “neck pain came from the harness” that was used while training in service and that he “twisted” his knees when he broke his foot in service and that his knee pain is also due to an abnormal gait associated with his service-connected right foot disability. See June 2017 Hearing transcript. Because there are medical questions remaining, remand for a VA examination is necessary. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a back disability is remanded. The Veteran contends that his back disability is related to his active service. Specifically, he asserts that his back started having “some problems” with his back during training at Camp Bullis, Texas in 1982. See June 2017 Hearing Transcript. Service connection may also be established for certain preexisting conditions aggravated during the Veteran's period of service. Every Veteran is presumed to have been in sound condition when accepted for service except as to defects, infirmities, or disorders noted at the time of acceptance; or, where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment, and was not aggravated by the Veteran's period of active service. 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). To rebut the presumption of soundness, the burden falls on VA to demonstrate with clear and unmistakable evidence both that the disease or injury existed prior to service, and that the disease or injury was not aggravated by service. 38 C.F.R. § 3.304(b); VAOPGCPREC 3-03, 69 Fed. Reg. 25178 (2004); Wagner v. Principi, 370 F.3d 1089, 1093 (Fed. Cir. 2004). 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 progression of the preexisting condition. 38 U.S.C. § 1153 (2012). If this burden is met, then the Veteran is not entitled to service-connected benefits. If the government fails to rebut the presumption of soundness, the Veteran's claim is one for service connection rather than service aggravation, and no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Wagner, 370 F.3d at 1096. Congenital or developmental defects are not considered to be diseases or injuries within the meaning of applicable VA laws governing disability compensation benefits. 38 C.F.R. § 3.303(c). Service connection may be granted for diseases, as opposed to defects, of congenital, developmental or familial origin. VAOGCPREC 82-90 (July 18, 1990), 55 Fed. Reg. 45711; VAOPGCPREC 67-90 (July 18, 1990), 55 Fed. Reg. 43253 (1990). Service connection can also be established if a congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. VAOPGCPREC 82-90 (July 18, 1990). A congenital disease is capable of improving or deteriorating whereas a congenital defect is “more or less statutory in nature.” VAOPGCPREC 82-90 (July 18, 1990). The presumption of soundness applies to a congenital disease, but not to a congenital defect. Quirin v. Shinseki, 22 Vet. App. 390 (2009). Spina bifida occulta is a “congenital cleft of spinal column.” See Blanchard v. Derwinski, 3 Vet. App. 300, 301 (1992). In this case, while the Veteran’s September 1981 entrance medical examination was normal, an August 1983 radiographic report and treatment notes show “spina bifida occulta at L5 and S1,” August 1983 STRs show treatment for back pain, and a June 2014 VA X-ray noted lumbar DDD and facet arthropathy. The Veteran underwent a VA examination in June 2014. The examiner determined that the Veteran’s back disability was less likely than not related to his active service because his current low back issues did not start until approximately five years ago (20 years after separation from service); he has only minimal DDD and mild facet arthropathy; and the spina bifida occulta noted in his STRs is a “neural tube defect occurring during development and is not related to military service.” However, the rationale did not address the Veteran’s competent statements of continuous back pain since training at Camp Bullis in 1982 and failed to offer an opinion regarding aggravation of the Veteran’s spina bifida. As such, a new opinion is required before the Board may consider this case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 4. Entitlement to an increased rating for atypical psychosis is remanded. Regarding the claim of an increased disability rating for atypical psychosis, the Veteran submitted a timely notice of disagreement with the September 2014 rating decision on appeal. No statement of the case (SOC) has yet been issued. The regulations require that a SOC must be issued and the Veteran must be afforded an opportunity to appeal. As such, a remand is required for the AOJ to issue a SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. The AOJ should obtain, if possible, records of all private evaluations and treatment the Veteran has received for his disabilities. The Veteran must assist in the matter by identifying his private healthcare providers and by submitting releases for VA to obtain any private records identified. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that it is ultimately his responsibility to ensure that any available private records are received. 2. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from January 2016 to the present. 3. After the development in the two instructions above is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any neck disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all neck disabilities present during the appeal period (from February 2014). If there is no neck disability diagnosed, the examiner should state whether there is pain with functional impairment. (b.) For each neck disability diagnosed, or for neck pain with functional impairment, is it at least as likely as not (50% or greater probability) such was either incurred in or otherwise related to the Veteran’s military service, specifically the Veteran’s use of a harness while training? Please explain why. 4. After the development in (1) and (2) above is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any knee disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all knee disabilities present during the appeal period (from February 2014). If there is no knee disability diagnosed, the examiner should state whether there is pain with functional impairment. (b.) For each knee disability diagnosed, or for knee pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability either was caused or aggravated by the Veteran’s service-connected disabilities, specifically due to an abnormal gait associated with his right foot disability? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. (c.) For each knee disability diagnosed, or for knee pain with functional impairment, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service, specifically when he “twisted” his knees when he broke his right foot? Please explain why. 5. After the development in (1) and (2) above is completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of any back disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record and examination of the Veteran, the examiner should provide an opinion with detailed rationale that responds to the following: (a.) Please identify, by diagnosis, all back disabilities present during the appeal period (from February 2014). In so doing, it should be noted that the record contains diagnoses of lumbar DDD, facet arthropathy, and spina bifida occulta. (b.) For each back disability diagnosed, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran’s military service, specifically a back injury while training at Camp Bullis in 1982? Please explain why. (c.) Is it at least as likely as not (50% or greater probability) that the Veteran’s lumbar arthritis manifested within one year of service separation? The examiner should address the diagnosed lumbar DDD and facet arthropathy. (d.) As spina bifida occulta is considered to be a congenital “defect,” please address whether there was any additional disability due to disease or injury superimposed on the Veteran’s spina bifida occulta, during service. 6. The AOJ should send the Veteran and his representative a statement of the case that addresses the issue of an increased disability rating for atypical psychosis with delusions. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 7. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel