Citation Nr: 19158367 Decision Date: 07/29/19 Archive Date: 07/29/19 DOCKET NO. 13-10 035 DATE: July 29, 2019 ORDER Entitlement to service connection for residuals of surgical removal of a spinal cord tumor, to include incomplete paraplegia of the lower extremities (claimed as confinement in a wheelchair due to surgical removal of an intramedullary spinal cord tumor), is denied. FINDINGS OF FACT 1. During service, the diagnoses were scoliosis, lordosis, and lumbosacral strain secondary to lordosis. 2. Scoliosis and lordosis are developmental defects that preexisted service. 3. The Veteran did not sustain a back injury, including no superimposed back injury, during service. 4. The Veteran experienced occasional lower back pain while in service related to the lordosis and scoliosis. 5. The Veteran was treated for syphilis while in the service. 6. In April 2003, 13 years after service, the Veteran had a laminectomy or laminotomy (back surgery) for a syrinx in the thoracic area of the back. 7. Since the post-service back surgery, the Veteran has experienced incomplete paralysis and required the use of a wheelchair. 8. The current diagnoses are degenerative arthritis of the lumbosacral spine, scoliosis, lordosis, and syringomyelia. 9. Symptoms of degenerative arthritis of the lumbosacral spine were not chronic in service, were not continuous since service separation, and did not manifest to a compensable degree within one year of service separation. 10. The currently diagnosed degenerative arthritis of the lumbosacral spine is not related to service. CONCLUSION OF LAW The criteria for service connection for residuals of surgical removal of a spinal cord tumor, to include incomplete paraplegia of the lower extremities, are not met. 38 U.S.C. §§ 1112, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303(a)-(c), 3.306, 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1985 to April 1989. The Veteran also served in the Army Reserves from April 1989 to October 2004. The Veteran’s case was previously before the Board in July 2016, at which time the Board remanded part of the case for a VA examination to further develop the record. The Regional Office (RO) in Atlanta, Georgia, provided a VA examination and then readjudicated the case, denying service connection. Upon review of the examination and record, the requested development was adequately completed on remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The case returned to the Board after the RO’s denial. Duties to Notify and Assist The Veterans’ Claims Assistance Act of 2000 (VCAA) enhanced VA’s duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA enhanced VA’s duty to notify and assist claimants in substantiating their claim for VA benefits. The record reflects that VA provided the Veteran with notice throughout the claims process, including the decisions that were made and the reasons behind them. The record reflects that VA provided notice of what additional information was needed to substantiate the claim and ways in which the Veteran could assist with the process. As previously described, VA ensured the completion of a VA examination for the back disorders. The Veteran contends that the VA examination was insufficient. He is concerned with the amount of time that the VA examiner spent with him and believes that the VA examiner did not review any MRIs leading to the diagnosis. The VA examiner reviewed the file, viewed prior imaging studies, and interviewed and examined the Veteran. The examination report shows that the examiner reviewed the relevant history, as indicated by the specific history and findings reported in the examination report, which show no indicia of inconsistency or irregularity in the way that the examination was conducted. The examination was conducted by a VA physician whose competency is not in question. For these reasons, the Board finds the VA examination was adequate and that the presumption of regularity is not overcome. For these reasons, the Board finds that all duties of notice and assistance under the VCAA have been satisfied. Service Connection Legal Criteria Service connection can be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of an in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. A congenital “defect” is not a disability for VA compensation purposes. See 38 C.F.R. § 3.303(c). The term “defect,” viewed in the context of 38 C.F.R. § 3.303(c), is a structural or inherent abnormality or condition which is more or less stationary in nature. A federal court, in drawing a distinction between “disease” and “defect,” indicated that disease referred to a condition considered capable of improving or deteriorating, whereas defect referred to a condition not considered capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). Service connection is available for congenital defects only if a superimposed injury with aggravation occurred during service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In this case, a disorder at issue, degenerative arthritis of the lumbosacral spine, is a “chronic disease” listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Additionally, where a veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Entitlement to service connection for residuals of surgical removal of a spinal cord tumor, to include incomplete paraplegia of the lower extremities (claimed as confinement in a wheelchair due to surgical removal of an intramedullary spinal cord tumor) The Veteran contends that the syphilis he contracted and was treated for during service turned into neurosyphilis and caused a tumor to develop in the spine 13 years after service. This led to post-service back surgery, which in turn lead to incomplete paraplegia. The Veteran contends that the diagnosis that the VA examiner focused on, syringomyelia, which led to the back surgery and caused the incomplete paraplegia, was only a theory, not a diagnosis. After a review of all the evidence, the evidence shows currently existing back disabilities, inclusive of syringomyelia, degenerative arthritis of the lumbosacral spine, and developmental defects of scoliosis and lordosis. Notwithstanding the Veteran’s non-competent lay assertion that syringomyelia was not a diagnosis, the weight of the evidence shows that syringomyelia, which arose 13 years after service, was a valid post-service diagnosis. The syringomyelia is listed throughout the treatment records including, but not limited to, interpretation of a January 2003 MRI. While the Veteran disagrees with the VA examiner’s assertion that the diagnosis could not go back thirteen years (to the service period), he has not presented competent evidence to support this position. In April 2003, the Veteran had back surgery in response to a Magnetic Resonance Imaging (MRI) study that revealed a syrinx in the thoracic area of the back. Since that surgery, the diagnosis was incomplete paraplegia. The VA outpatient treatment records as well as treatment records from four private medical clinics all reflect current back and related neurologic disorders. The evidence shows in-service treatment for syphilis, and some complaints of back pain (attributed to congenital defects of scoliosis and lordosis); however, the weight of the lay and medical evidence shows that the subsequent, post-service syringomyelia, back surgery, and neurologic residuals are not causally related to either the in-service syphilis or back pain (which has been attributed to congenital defects of scoliosis and lordosis). The weight of the evidence, both lay and medical, shows the need for post-service back surgery is not related to service. Per the March 2017 VA examination, the syringomyelia is the primary disabling condition, as it caused the mass of cells that had to be removed and that led to the back surgery. The lay evidence shows post-service onset of symptoms of syringomyelia years after service, post-service back surgery, and subsequent neurological residuals of back surgery, but does not show in-service injury, disease, or symptoms, or continuous symptoms since service. The Veteran has provided statements from friends and family members. The statements discussed symptoms like the Veteran dragging his feet and stumbling with his gait after getting out of service. A few also mentioned time spent with the Veteran after back surgery. These statements only show symptoms and impairment associated with the post-service onset of syringomyelia 13 years after service, which necessitated post-service back surgery, and led to neurological residuals of the back surgery. The lay statements do not show in-service injury, disease, or symptoms (other than some back pain, which has been attributed to congenital defects of scoliosis and lordosis), or continuous post-service symptoms after service. The weight of the lay and medical evidence is against a finding that the post-service tumor (syringomyelia) 13 years is related to the syphilis in service. The weight of the evidence demonstrates that the syringomyelia did not begin during service and is not related to any in-service event, including the syphilis. The VA examiner rendered a negative nexus opinion on the syphilis theory. The VA examiner in March 2017 noted the diagnosis of syphilis but reasoned that the prescribed course of pharmaceutical treatment would have been very effective, and that it is unlikely that the Veteran would have had chronic sequelae of syphilis. The VA examiner also reasoned that syphilis is not known to cause syringomyelia, which is what the VA examiner believed to be the primary diagnosis. The VA examiner proffered a negative nexus opinion that acknowledged that the syringomyelia would take time to develop but stated that it would not go back thirteen years from the date of diagnosis, which is what it would have to do to be an in-service illness or event. Without such an occurrence, there is no nexus to a present disability. The VA examiner also opined that the condition is often idiopathic in nature and noted that the site of the syrinx was remote from the location of back pain during service. The Veteran’s back pain that he complained of during service was typical of lumbosacral conditions. Per the VA examiner, the back pain was remote from the site of the syringomyelia. Accordingly, the weight of the evidence is against finding a relationship between the post-service syringomyelia and the in-service syphilis. A private treatment provider, Dr. C.N.B., proffered the theory that the Veteran did not receive the proper treatment for syphilis and that, as a result, he developed neurosyphilis, which caused the tumor. Dr. C.N.B. did not consider and explain or dismiss any of the other possible causes for the tumor. The lack of a thorough consideration of the likely causes, in contrast with the VA examiner’s approach, gives this opinion less weight. While the Veteran did have lower back pain during service, the in-service back pain has been attributed by the medical evidence and by the Veteran’s own history to scoliosis and lordosis. During service the Veteran reported lower back pain to the medical staff. During service the back pain was assessed to be due to scoliosis and lordosis, which are developmental defects that pre-exist service by definition. The fact that they are developmental defects makes them not a disability for VA compensation purposes. See 38 C.F.R. § 3.303(c) (providing that “developmental defects are not diseases or injuries within the meaning of” VA compensation law). If a veteran had a superimposed injury during service and demonstrated aggravation, service connection could be possible. See 38 U.S.C. § 1153; 38 C.F.R. § 3.306; VAOPGCPREC 82-90. However, service connection is only granted if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury during service. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); VAOPGCPREC 67-90; VAOPGCPREC 11-99. In this case, the Veteran does not claim a superimposed back injury or disease here, and none can be found in the record. The Veteran reports back pain during service but does not point to a back injury or any other type of injury that could have aggravated the scoliosis or lordosis that were assessed during service. With respect to service connection based on the “chronic disease” presumption, the first requirement is that the disease be a listed disease. Degenerative arthritis of the lumbosacral spine (arthritis) is a chronic disease. See 38 C.F.R. § 3.309(a). Because of this the presumptions related to a chronic disease applies. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the weight of the evidence, both lay and medical, shows no chronic symptoms of arthritis during service, continuous symptoms of arthritis since service, or arthritis to a compensable degree within one year of service to warrant presumptive service connection. 38 U.S.C. § 1112; 38 C.F.R. § 3.303(b). The evidence only shows complaints of back pain specifically attributable to developmental defects of scoliosis and lordosis, with a pre-service history of back pain, in the context of no back injury during service. The post-service evidence shows no complaints, findings, diagnosis, or treatment of any back symptoms for years after service. The Veteran reported to the VA examiner that he received treatment for symptoms beyond the scoliosis and lordosis starting in 1999, which is ten years after service. Even accepting the Veteran’s own history of onset of symptoms, as reported at the VA examination, the first complaints of back symptoms were 10 years after service, and these were due to the post-service syringomyelia, rather than arthritis. For these reasons, the criteria for presumptive service connection for arthritis are not met. For these reasons, the Board finds that the weight of the evidence is against the claim under all theories of service connection, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.