Citation Nr: 18145488 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-10 896 DATE: October 29, 2018 ORDER The application to reopen the claim of entitlement to service connection for a low back disability is granted. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left hip disability is remanded. FINDINGS OF FACT 1. A June 1979 rating decision denied the Appellant’s claim for service connection for chronic low back pain; the Appellant did not file a notice of disagreement or submit new and material evidence within one year of the denial. 2. Evidence received since the June 1979 rating decision is not cumulative or redundant with regard to the claimed low back disability, and raises a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The June 1979 rating decision denied a claim for service connection for chronic low back pain is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). 2. New and material evidence has been received sufficient to reopen the Appellant’s claim for service connection for a low back disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Appellant served on active duty as a recruit trainee in the Marine Corps from November 2, 1978 to December 19, 1978. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a February 2013 rating decision by the Regional Office (RO). The Appellant testified before the undersigned Veterans Law Judge in June 2018. In response to his request, the Board provided a copy of the transcript in October 2018 with an opportunity to enter a motion to correct errors in the transcript within 30 days. Although that time has not yet expired, the decision below is favorable and does not prejudice the Appellant. Any corrections will be considered following remand action. 1. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for a low back disability The Appellant requests reopening of a previously denied claim of entitlement to service connection for a low back disability. For the reasons explained below, the Board finds that new and material evidence has been received, and the claim is reopened. A June 1979 rating decision denied the Appellant’s original claim for service connection for chronic low back pain. The rating decision cited, in short, the fact that the Appellant had five degrees of scoliosis that existed prior to service and was not aggravated by service. The Appellant did not file a notice of disagreement or submit new and material evidence within one year of notice of the June 1979 rating decision, which became final. See 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (2017). In August 2012, the Appellant filed a request to reopen the claim. A February 2013 rating decision denied reopening the claim, essentially citing the same reasoning as in the June 1979 rating decision and that no new and material evidence had been submitted. The Appellant appealed herein. At the time of the last final denial in June 1979, the evidence of record included the Appellant’s service treatment records, which include his November 1977 enlistment or pre-enlistment examination report that shows no low back condition was noted on entry into service. See Service treatment records, received May 1979 at p.20 of 22. Also of record was a December 1978 medical evaluation board record showing the Appellant complained of back pain after one week of recruit training, that the impression at the time was a back strain, that x-rays revealed five degrees of scoliosis but were otherwise unremarkable, that he reported a pre-service history of a sacroiliac injury playing basketball at the age of 15, and that the board recommended he be separated from service due to a medical defect. See Service treatment records, received May 1979 at p.4 of 22. Since the time of the last final denial, new evidence associated with the claims file includes a November 2013 DBQ prepared by a private treating physician, Dr. J.S., as well as a medical opinion by Dr. J.S. of the same date. Dr. J.S. noted the Appellant has a diagnosis of lumbosacral spine arthritis, and opined it is more likely than not related to the Appellant’s complaints in service in 1978. While the Appellant’s pre-service and in-service history were noted, no rationale was provided. As shown above, the evidence of record at the time of the last final denial included service treatment records showing five degrees of scoliosis was noted in service. The Board acknowledges that, generally, congenital and developmental defects do not constitute diseases or injuries for VA compensation purposes – except that service connection may be awarded if a congenital defect is subject to or aggravated by a superimposed disease or injury in service that results in additional disability. See 38 C.F.R. §§ 3.303(c), 4.9 (2016); Carpenter v. Brown, 8 Vet. App. 240, 245 (Vet. App. 1995); VAOPGCPREC 82-90 (July 18, 1990). Since the last final denial, the new evidence associated with the claims file includes medical evidence of diagnosed lumbosacral arthritis, which is not, on its face, a congenital defect or disease, as well as Dr. J.S.’s medical opinion that the arthritis is related to the Appellant’s active service. While the Board acknowledges that the November 2013 opinion by Dr. J.S. includes no rationale, nonetheless, the Board finds that the new evidence of a current lumbosacral arthritis disability, when viewed in tandem with the service records showing complaints of low back pain in service, constitutes material evidence. Therefore, as new and material evidence has been received, the claim is reopened. However, before a decision may be made on the claim, the Board finds this matter should be remanded for further development, as explained below. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability is remanded. The Appellant asserts that he has a low back disability that was incurred in or aggravated by his active service. See Statement, August 2012; Board hearing transcript at p.4. As an initial matter, no back condition was noted on entry into service – the November 1977 enlistment examination report shows examination of the spine was normal. See Service treatment records, received May 1979 at p.20 of 22. Therefore, the presumption of soundness applies. See 38 U.S.C. § 1111 (2012). During the first week of training, the Appellant sought treatment for back pain and reported a history of pre-service spinal trauma. He was excused from training for 48 hours. After 20 days of training, the Appellant was transferred to a medical holding company. A December 1978 medical board record shows the Appellant had complained of low back pain after one week of recruit training, initially noted as a back strain, x-rays were taken, scoliosis of five degrees was noted, and the medical board recommended separation due to a medical defect. See Records, received June 2018 at p.11 of 25; see also Service treatment records, received May 1979 at p.8 to 14 of 22. The December 1978 medical board record also shows the Appellant reported a pre-service history at the age of 15 of falling on the corner of a table playing basketball and incurring a sacral or sacroiliac injury, and having experienced intermittent back pain prior to service. See Records, received June 2018 at p.11 of 25; see also Service treatment records, received May 1979 at p.8-10. Post-service, in January 1979, the Appellant filed a claim for service connection for chronic low back pain, which was denied by an unappealed June 1979 rating decision. Subsequently, a December 2010 private facility MRI report of the lumbar spine shows an impression of bilateral facet joint hypertrophy L3 to S1, and mild to moderate bilateral foraminal stenosis at L3 to S1. See Records, received July 2013 at p.2 of 6. A February 2013 private x-ray report shows diagnosed lumbar spine facet arthritis bilaterally at L4-S1, with arthropathy worse on the left. See id. at p.3 of 6. The November 2013 letter by Dr. J.S. shows he noted the Appellant has lumbosacral spine arthritis. The Appellant has not been afforded a VA examination relating to his claim. Because no back condition was noted on entry, the Appellant complained of back pain in service, and he currently has diagnosed lumbosacral spine arthritis that Dr. J.S. opines is related to his active service (albeit no rationale was provided), the Board finds this matter should be remanded to afford the Appellant a VA examination. The examiner should address whether there is clear and unmistakable evidence that the Appellant had a preexisting low back disability that was not aggravated by service; if no preexisting disability is found, then whether the Appellant has a current low back disability that is otherwise caused by his active service. In addition, the Board notes that a November 1978 record shows the Appellant reported pain shooting up from his hip to his low back, with a provisional diagnosis of scoliosis. See Service treatment records, received May 1979 at p.14 of 22. In that regard, the Board is cognizant that Dorland’s Medical Dictionary defines two types of scoliosis as being caused by hip disease. Specifically, Dorland’s defines ischiatic scoliosis as “that which is due to hip disease,” and coxitic scoliosis as “scoliosis in the lumbar region caused by hip disease.” See Dorland’s Medical Dictionary, 30th Ed. (2003) at p.1669-1670. Therefore, on remand, the VA examiner should also address whether the Appellant has any low back disability that was caused or aggravated by his claimed left hip disability. 2. Entitlement to service connection for a left hip disability is remanded. The Appellant asserts that he has a left hip disability that was caused or aggravated by his active service. See Records, received November 2013 at p.1 (Dr. J.S. opinion). In the alternative, he asserts it is secondary to his claimed low back disability. See Board hearing transcript at p.3. The November 1977 enlistment examination report shows musculoskeletal examination was normal. Therefore, the presumption of soundness applies. See 38 U.S.C. § 1111 (2012). As noted above, a November 1978 service treatment record shows the Appellant complained of hip pain radiating up to his low back in service, albeit the record did not specify whether the right or left hip. Post-service, a February 2013 private left hip x-ray report shows a differential diagnosis included most likely osteoarthritic changes. A November 2013 DBQ prepared by Dr. J.S., shows the Appellant reported a history of left hip, thigh, and low back pain since the age of 15 that was worsened in service. Dr. J.S. noted a diagnosis of osteoarthritis of the left hip. In a November 2013 opinion letter, Dr. J.S. opined that the Appellant’s left hip condition was related to his complaints in service in 1978, but provided no rationale for the opinion. The Appellant has not been afforded a VA examination relating to his claim. Because he is shown to have complained of hip pain in service, and because Dr. J.S. reported in November 2013 that the Appellant has osteoarthritis that he opines is related to the Appellant’s active service (albeit no rationale was provided), the Board finds this matter should be remanded for a VA examination to address the etiology of the Appellant’s claimed left hip disability, and to address both direct service connection as well as whether any left hip disability was caused or aggravated by the Appellant’s claimed low back disability. Also, at the Board hearing, the Appellant’s representative reported that the Appellant had a planned left hip arthroplasty. On remand, the Appellant should be asked to identify any more recent outstanding treatment records relating to his claimed left hip disability, including any records of surgical treatment. The matters are REMANDED for the following action: 1. Ask the Appellant to complete a Form 21-4142 authorization to identify any recent records of treatment for his claimed left hip disability, including any record of surgical treatment. 2. After the above development has been completed, afford the Appellant a VA examination to address the nature and etiology of his claimed a) low back disability, and b) left hip disability. The complete claims folder must be provided to the examiner for review in conjunction with the examination, and the examiner must note that the claims folder has been reviewed. The examiner should opine as follows: a) Whether there is “clear and unmistakable evidence” that any current low back disability preexisted service and was not aggravated by service; b) If any current low back disability is not found to have clearly and unmistakably preexisted service, then whether it is “at least as likely as not” that it is caused by the Appellant’s service on a direct basis; c) Whether any current low back disability was caused or aggravated by the Appellant’s left hip condition; d) Whether there is “clear and unmistakable evidence” that any current left hip disability preexisted service and was not aggravated by service; e) If any current left hip disability is not found to have clearly and unmistakably preexisted service, then whether it is “at least as likely as not” that it is caused by the Appellant’s service on a direct basis; and f) Whether any current left hip disability was caused or aggravated by the Appellant’s low back condition. Ask the VA examiner to clarify whether the Appellant has scoliosis, and if so, whether it was caused or aggravated by any left hip condition. Also, if any scoliosis is diagnosed, please ask the VA examiner to address whether it constitutes “ischiatic scoliosis” or “coxitic scoliosis,” which are defined by Dorland’s Medical Dictionary (30th Ed.) as being due to hip disease. Any opinion must be accompanied by a complete rationale. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Juliano, Counsel