Citation Nr: 18153005 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 15-18 603 DATE: November 27, 2018 REMANDED 1. Entitlement to service connection for spondylolysis is remanded. 2. Entitlement to service connection for spina bifida occulta is remanded. 3. Entitlement to service connection for asthma is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1981 through August 1985 and from August 1985 through May 1988. The Veteran’s service from August 1985 through May 1988 is not qualifying for VA purposes (7/29/2011 DD214 Certified Original and 9/24/2012 Administrative Decision, p.1). These matters come before the Board of Veteran’s Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), denying service connection for spondylolysis, spina bifida occulta, and asthma. While the claim has been characterized as one for spondylolysis, the Board finds it also includes other disability of the spine, to include spondylolisthesis. Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran presented testimony at a hearing before the undersigned Veterans Law Judge in February 2018. A transcript of the hearing has been associated with the electronic claims file. The Board cannot make a fully-informed decision on the issue of service connection for spondylolysis, spina bifida occulta, and asthma because the record requires medical opinions as to whether the Veteran’s present conditions are related to service, either directly or by aggravation. The record indicates the Veteran has a June 2012 diagnosis of spondylolisthesis (4/6/2015 CAPRI, p.196), however the record does not contain sufficient information to decide the claim, specifically pertaining to its potential nexus to service. The Veteran contends that this disability initially became manifest or aggravated in service. During the February 2018 Board hearing, the Veteran cited two automobile accidents that occurred during his period of qualifying active service occurring in November 1982 and August 1984 (2/6/2018 Hearing Transcript, pgs. 3-7; 4/8/2014 STR- Medical, pgs. 96 and 102). The Veteran also indicates that during his active duty he routinely lifted munitions weighing between five and one-thousand pounds (2/6/2018 Hearing Transcript, p. 9). Additionally, the Veteran’s representative cited to a journal article (2/6/2018 Third-Party Correspondence), as evidence of the proposition that automobile and work-related incidents are common causes of spinal injuries. A medical opinion is necessary to provide an opinion as to the etiology of the Veteran’s spondylolysis. Regarding spina bifida occulta, the record indicates a June 2012 diagnosis (4/6/2015 CAPRI, p.196). Generally, spina bifida occulta is a "congenital cleft of spinal column." See Blanchard v. Derwinski, 3 Vet. App. 300, 301 (1992). Spina bifida occulta as a congenital condition, is noncompensable under applicable law." Firek v. Derwinski, 3 Vet. App. 145, 146 (1992). VA General Counsel has held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin. Congenital diseases may be service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306 (2016). In contrast, congenital or developmental defects, such as spina bifida, are not service connectable in their own right; however, service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). The Veteran contends that his spina bifida occulta was aggravated in service, citing the two automobile accidents that occurred during his period of qualifying active service (November 1982 and August 1984), and his routine lifting of munitions weighing between 5 and 1,000 pounds (2/6/2018 Hearing Transcript, pgs. 3-9). The record does not contain sufficient information to decide the claim. A medical opinion regarding aggravation of the Veteran’s spina bifida occulta during his service is necessary. Regarding his asthma, the record indicates a current diagnosis (1/17/2017 CAPRI, p. 51), and service treatment records indicate a history of difficulty breathing and childhood asthma (4/08/2014 STR-Medical p. 7; 4/8/2014 STR-Medical, p. 121; 4/20/1988 STR-Medical, p. 9). The Veteran has provided testimony that this disability was related to his qualifying period of active service, specifically his exposure to daily second-hand smoke from coworkers aboard ship, who were permitted to smoke in interior spaces (2/6/2018 Hearing Transcript p. 14). A medical opinion regarding etiology of the Veteran’s asthma is necessary. All of the claims include current diagnoses and evidence of potential in-service occurrence or aggravation, in the case of the Veteran’s spina bifida occulta. However, the record does not contain medical opinions with regard to etiology of the Veteran’s spondylolysis, spina bifida occulta, or asthma. The duty to assist includes provision of a medical examination when an opinion is necessary to make a decision on a claim. 38 C.F.R. §3.159(c)(4). Because there is insufficient medical evidence to decide the claim, the Board must remand the issues for a VA examination may be obtained to address the etiology of the Veteran’s spondylolysis, spina bifida occulta, and asthma. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Ensure all current VA medical records are obtained. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any low back disorder, to include spondylolysis or spondylolithesis. Review of the claims file and this remand should be noted in the examiner's report. The examiner must state whether it at least as likely as not (probability of 50 percent or more) that the Veteran’s low back disorder, to include spondylolysis and/or spondylolithesis, is related to his active service. The examiner must provide a rationale for any opinion offered. The examiners must consider lay reports from the Veteran, along with pertinent medical evidence. The examiner should consider the Veteran’s report of his symptoms and history, specifically the role two automobile accidents (November 1982 and August 1984) and lifting heavy munitions during service may have had in relation to the disability, and specifically acknowledge and consider them in formulating any opinion. The examiner must provide a reason if he or she rejects the lay reports, and the lay statements cannot be rejected due solely to a lack of medical documentation. The examiner should reconcile any conflicting medical evidence of record to the extent possible. The examination report must include a complete rationale for all opinions provided. If the examiner cannot offer an opinion without resorting to speculation, the examiner should explain why, and explain whether the lack of certainty is due to the limitations of medical or scientific knowledge or insufficient evidence. If due to insufficient evidence, the examiner should state what additional evidence, would be required to offer an opinion. 3. Schedule the Veteran for an examination with an appropriate clinician regarding the Veteran’s service connection claim for spina bifida occulta. Review of the claims file and this remand should be noted in the examiner's report. The examiner should address whether it is at least as likely as not (probability of 50 percent or more) that the Veteran's active service resulted in additional disability to the congenital defect of spina bifida due to disease or injury superimposed on such defect; if so, such additional disability should be identified. The examiner should consider the Veteran’s report of his symptoms and history (specifically the role two automobile accidents (November 1982 and August 1984) and heavy lifting may have had in relation to the disability), and specifically acknowledge and consider them in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must explain his or her reason for doing so. The examination report must include a complete rationale for all opinions provided. If the examiner cannot offer an opinion without resorting to speculation, the examiner should explain why, and explain whether the lack of certainty is due to the limitations of medical or scientific knowledge or insufficient evidence. If due to insufficient evidence, the examiner should state what additional evidence, would be required to offer an opinion. 4. Schedule a VA examination with an appropriate clinician to determine the nature and etiology of the Veteran's asthma. Review of the claims file and this remand should be noted in the examiner's report. The examiner should describe the type of asthma or respiratory disability and provide an opinion as to whether it is clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran had asthma or other respiratory disability prior to service. If so, the examiner should determine whether it is clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran's preexisting asthma was not aggravated by service. If either of the above questions are answered in the negative, then the examiner should also provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's current asthma is the same disease process shown in service, or is otherwise related to service. (Continued on the next page)   The examiner should consider all lay statements of record, addressing specifically the Veteran’s statement that his exposure to the second-hand smoke of co-workers during his active service. The examiner must provide a reason if he or she rejects the lay reports, and the lay statements cannot be rejected due solely to a lack of medical documentation. Additionally, the examiner should reconcile any conflicting medical evidence of record to the extent possible. Eric Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. A. Myers, Associate Counsel