Citation Nr: 18159620 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 14-04 565 DATE: December 19, 2018 ORDER The July 18, 2018, Board decision denying entitlement to service connection for a lumbar spine disability is vacated. Entitlement to service connection for a lumbar spine disability is granted. FINDINGS OF FACT On July 18, 2018, the Board issued a decision denying service connection for a lumbar spine disability without considering favorable evidence recently associated with the record. The Veteran’s lumbar spine disability is related to his combat service. CONCLUSIONS OF LAW The July 18, 2018, Board decision denying entitlement to service connection for a lumbar spine disability is vacated. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. The criteria for entitlement to service connection for a lumbar spine disability are met. 38 U.S.C. §§ 1110, 1111, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304(b), (d). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on a period of active duty for training (ACDUTRA) from March 1998 to October 1998 and on active duty from December 2003 to February 2005 in the United States Army. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge, and in April 2016, the Board issued a decision that, inter alia, denied the Veteran’s service connection claim for a lumbar spine disability. Thereafter, the Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and in July 2017, the Court issued a Memorandum Decision vacating the Board’s denial. Upon return of this case to the Board, in March 2018, the Board requested a medical opinion from a subject matter expert employed by the Veterans Health Administration (VHA), hereinafter referred to as the VHA expert, regarding the etiology of the Veteran’s diagnosed lumbar spine disabilities, per 38 U.S.C.§ 7109 and 38 C.F.R. § 20.901. In April 2018, the VHA expert provide the requested opinion. However, upon review, the Board determined that clarification of this medical opinion was required, and the Board requested such clarification in April 2018. The VHA expert provided the requested clarification in an April 2018 addendum medical opinion, and the Board provided copies of these medical opinions to the Veteran in May 2018 and informed the Veteran that the record would be held open for 60 days to allow him to submit any further evidence or argument in response. In July 2018 correspondence, the Veteran indicated he had further medical evidence to submit, along with a statement that he did not waive RO review of said evidence. Thereafter, on July 18, 2018, the Board issued a decision denying entitlement to service connection for a lumbar spine disability. As detailed below, there has been a denial of due process of law warranting a vacatur of the Board’s July 2018 decision. Vacatur The July 18, 2018, Board decision denying entitlement to service connection for a lumbar spine disability is vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.904. In this case, the Board is vacating the July 18, 2018, decision on the Veteran’s representative’s request, as the Board failed to consider relevant medical evidence recently associated with the record prior to issuing its decision, namely a July 2018 positive nexus opinion. Therefore, the Board finds that the Veteran was denied due process of law and the July 18, 2018, decision must be vacated. See 38 C.F.R. § 20.904(a). The Board acknowledges the Veteran’s request that the RO consider this evidence in the first instance. However, the Veteran’s representative has since stated that if the Board is able to award service connection in the first instance, this request is waived. See November 2018 Correspondence. As indicated below, the benefit sought on appeal is established. Accordingly, remand for initial RO consideration is not necessary. Service Connection Entitlement to service connection for a lumbar spine disability is granted. I. Veteran’s Contentions The Veteran asserts that he developed his back disabilities as a result of either an in-service back injury following a mortar blast or as a result of the cumulative strain placed on his lower back due to his performance of certain in-service duties from his military occupational specialty (MOS) as a combat health care specialist. Specifically, he reports that during an in-service mortar attack, he was thrown to the ground and shelving units with medical supplies fell on top of him injuring his back. He further asserts that his current back condition began during his service in Iraq when he was required to carry litters with casualties at a quick pace while under fire. He maintains that his back pain has been continuous ever since service. See February 2010 and February 2013 VA examination reports; December 2012 VA Form 21-4138; and February 2013 private treatment records. II. Applicable Law Service connection may be established for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, to establish service connection the evidence must show three elements: (1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). When there is an indication that a disorder for which the Veteran seeks service connection preexisted service, the presumption of soundness must be addressed. The presumption of soundness provides that a Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed before acceptance and enrollment into service and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Congenital or developmental defects are not considered to be diseases or injuries within the meaning of applicable legislation. 38C.F.R.§ 3.303. However, service connection may be granted for a congenital disease (a condition that is “capable of improving or deteriorating”), but not a congenital defect (a condition that is “more or less stationary in nature”), where the disease first manifested during service (incurrence) or where it preexisted service but was worsened beyond its normal progression as a result of service (aggravation). Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009) (discussing VAOPGCPREC 82-90); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). If the Veteran engaged in combat with the enemy, and it is claimed that a disease or injury was incurred in such combat, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). Even where the combat presumption applies, a veteran must still show that a causal relationship exists between the present disability and the in-service injury or disease. Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012). Analysis i. Presumption of Soundness In this case, no back disorders were noted on the Veteran’s February 1998 entrance examination. The examination report reflected a normal spine evaluation. There was no examination prior to his period of active service beginning in 2003. Therefore, the presumption of soundness is for application and to rebut this presumption VA must demonstrate that there is clear and unmistakable evidence that the disability both existed prior to enlistment into service and was not aggravated by such service. Here, the Board finds that the onerous burden is not established and such clear and unmistakable evidence does not exist as to a preexisting condition, thus the Board need not address the aggravation prong. Specifically, a private physician, Dr. K. S., stated although there is current argument of record that spondylolytic spondylolisthesis is predominantly a developmental condition and is commonly associated with individuals involved in sports, it would be impossible to discern without previous imaging as to whether the Veteran had spondylolytic spondylolisthesis prior to his time in service, and even if he had said condition it was asymptomatic prior to injury in service. The Board notes the April 2018 VHA expert’s opinions indicate findings to the contrary. Specifically, the VHA expert stated that spondylolisthesis is interpreted in the medical literature as a predominantly developmental condition, frequently associated with adolescents involved in sports, and is often symptomatic and discovered in young to middle aged adults with the development of symptoms as they develop aging changes. He further determined that as the condition was capable of improvement or worsening, itis most consistent with the VA definition of a “congenital disease.” Moreover, the VHA expert emphasized that the onset of the diagnosis often preceded onset of symptoms, and thus the in-service back pain symptoms were not an indication of the onset of his disease. However, given the normal enlistment examination report and Dr. K. S.’s opinion, the Board finds that the presumption of soundness cannot be rebutted by clear and unmistakable evidence, as the evidence is at least in relative equipoise as to whether the Veteran’s spondylolytic spondylolisthesis preexisted service thus, the claim becomes one for direct service connection. See Wagner, supra (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claim is converted into a normal claim for service connection). ii. Service Connection The Veteran has current diagnoses of spondylolytic spondylolisthesis and degenerative joint disease of the lumbar spine. See February 2013 VA examination report. Thus, element one is met. Regarding element two, in service incurrence of a disease or injury, the Veteran’s service treatment records (STR) note an injury to his shoulder and neck when a duffel bag fell on top of him from a high shelf. See May 2004 STR. Additionally, in a January 2005 Report of Medical Assessment and a January 2005 Post-Deployment Health Assessment, the Veteran endorsed having back pain while deployed and that he had continuous shoulder, neck, and back pain since his May 2004 incident when a box fell on him from a shelving unit. See January 2005 STRs. Moreover, since the Veteran has reported that he incurred his back injury following a mortar blast or as a result of the cumulative impact of duties associated with his MOS during combat and his report is consistent with the circumstances of his combat service, he is entitled to the combat presumption, unless there is clear and convincing evidence to rebut the combat presumption. 38 U.S.C. § 1154(b). The Boards finds no such clear and convincing evidence exists, thus not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, at 998-99. Therefore, element two is also met. As to element three, nexus, there are conflicting medical opinions of record. The February 2013 VA examination was previously determined to be insufficient by the Court, therefore this examination report will not be considered. The April 2018 VHA expert opined that it is less likely than not that the Veteran’s back disorder had its onset during service or is otherwise related to service. In support of his opinion, he reasoned that the Veteran’s back disorder is a developmental condition that naturally progressed with age and is associated with genetics and that his back diagnoses often precede symptoms and the onset of back pain itself does not equate to the onset of his back conditions. However, both opinions failed to specifically comment on a January 2005 Report of Medical Assessment, a January 2005 Post Deployment Record, a February 2009 VA treatment record, a February 2010 VA examination report, a December 2012 service connection claim, February 2013 private treatment records, and the Veteran’s and his spouse’s lay statements that he has experienced continuous back pain since service, as specifically requested in the Board’s March 2018 VHA request. Thus, the Board assigns these opinions low probative value. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). On the other hand, Dr. K. S. took the medical and lay evidence of record into consideration in finding that the Veteran’s back disability is related to service. Specifically, he stated that, since the Veteran can cite a single specific incident of trauma to his lumbar spine (being caught in a mortar blast), it is reasonable to assume the main contributing factors to the onset of Veteran’s lower back pain is service-related. He noted that the mortar blast most likely would have caused him to suffer injury to multiple segments in the lumbar spine and pelvis along with their associated soft tissue. To this end, he indicated that an injury to these areas can lead to altered bio-mechanics, making an individual more susceptible to over-use injuries and that seeing as how he continued to perform his duties as a field medic, where his spine would have experienced repetitive extension, compression, flexion, and rotational stresses, it is not unreasonable that his lumbar spine may have suffered stress fractures. Thus, he concluded that the main contributing factors to developing lower back pain associated with spondylolisthesis and degenerative joint disease is his military service (as opposed to a developmental condition preexisting service). Lastly, he stated that even if the Veteran’s spondylolisthesis preexisted service, it was asymptomatic until his mortar blast injury and it is reasonable to assume that said injury is the root cause for his disability and most likely accelerated developing degenerative joint disease. Dr. K. S. provided an understandable and rational basis for the opinion and relied on an accurate history. See Nieves-Rodriguez, at 302 (2008). Further, the Board finds nothing in the record to doubt the qualifications of Dr. K. S., and thus finds this medical opinion to be competent and affords it high probative value. Therefore, the medical evidence of record is in at least relative equipoise, thus entitling the Veteran to the benefit of the reasonable doubt. Accordingly, element three is met. In sum, the most probative evidence of record reflects that there is not clear and unmistakable evidence that the Veteran’s spondylolytic spondylolisthesis preexisted service, he has a current lumbar spine disability, that he presumptively incurred back injuries during combat service, and that his current spondylolytic spondylolisthesis and degenerative joint disease of the lumbar spine are related to those in-service injuries, to include on the basis of aggravation, if spondylolisthesis is considered a congenital disease. See Quirin, supra. Thus, service connection for a lumbar spine disability is warranted. 38 U.S.C. §§ 1110, 1111, 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (b), (d). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Asante, Associate Counsel