Citation Nr: 20005533 Decision Date: 01/24/20 Archive Date: 01/22/20 DOCKET NO. 12-24 466 DATE: January 24, 2020 REMANDED Entitlement to service connection for a low back disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1971 to October 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge during a June 2013 hearing. A transcript of the hearing is associated with the Veteran’s claim file. This matter was previously before the Board in January 2015, September 2016, and June 2018, wherein the Board remanded the issue for further clarification of the medical opinions. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran seeks service connection for a lumbar spine disability, contending that it is related to his military service. Generally, service connection may be granted for congenital diseases, but not congenital defects. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). Service connection may be granted for congenital diseases which either first manifest during service or which preexist service and progress at an abnormally high rate during service. Service connection for a congenital defect can only be established if the congenital defect was subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. For VA purposes, a "defect" is defined as a structural or inherent abnormality or condition that is more or less stationary in nature and is generally incapable of improvement or deterioration. In contrast, a "disease" is capable of improvement or deterioration. As such, a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111. O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin, 22 Vet. App. At 390, 396-97. Further, VA may not assume that a congenital disease must have preexisted service simply because it is congenital. The presumption of soundness upon service entry does apply to congenital or developmental "diseases" that are not noted in the service entrance examination. Quirin, 22 Vet. App. at 396. As noted above, service connection is allowed for a congenital or developmental disease if it first manifested during service, or if it preexisted service and was aggravated by service. VAOPGCPREC 82-90 at p.2-3. Regarding the December 2016 examiner's comment that the Veteran had had a congenital disease related to the back which preexisted service, the Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Where no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the Veteran's entrance examination reflected a normal spine, with no indication of a preexisting spine disorder. As such, the presumption of soundness attaches with regard to whether the Veteran had a congenital disease of the spine. The Veteran’s service treatment records (STRs) show that in 1981 he complained of lower back pain. A September 1982 STR shows he had back pain for three days. In the September 1990 retirement examination, it was noted that the Veteran had recurrent back pain. The Veteran was injured in January 1993 when he was carrying a large floor buffer and while trying to place the buffer on the ground, he felt a pull in his lower back. The Veteran was seen again in February 1993 and March 1993 and complained of pain in his hip and left leg. He was diagnosed with lower back pain with disc derangement. Recurrent back pain was also noted in the October 1993 Medical Evaluation Board (MEB). The October 1993 consultation for MEB stated that the Veteran has had recent low back pain secondary to disc derangement and his problem with low back pain does appear to be secondary to chronic problems related to his abdominal surgeries and the loss of strength related to that. Post-service treatment records show that the Veteran had lower back pain which started to get worse in June 2005. See June 2005 Naval Hospital Pensacola treatment record. The Veteran was seen at the emergency room complaining of low back pain after lifting a 100-pound dog out of the freezer. See August 2007 Naval Hospital Pensacola treatment record. The Veteran testified before the undersigned in June 2013 that he did have continuity of back symptomatology since service and that he self-treated. He also testified that he picked up a big floor buffer during service and injured his back. He stated his back has hurt since then. See June 2013 Board hearing transcript at pgs. 9-11, 15. He further stated in a May 2015 correspondence that he when he had checkups, he often forgot to mention the back pain because he was answering questions from doctors regarding his other conditions. He also explained that although his low back did not bother him twenty-four hours a day, seven days a week, he experienced continuity of low back pain since service. See May 2015 Correspondence from Veteran. Here, the April 2015 VA examiner found that the Veteran had congenital and acquired mild spinal stenosis. She opined that for the congenital lumbar spinal stenosis it is less likely as not caused by or a result of service or any event in 1993 or 1994 during service because it is congenital. She provided rationale that the preponderance of medical evidence does not support aggravation of the condition by service or events during service because there was a long gap between 1994 and 2004 without worsening of back symptoms requiring medical care for the back. In this regard, the Board finds that this rationale is inadequate as the VA examiner did not consider the Veteran’s lay statements. The Veteran stated at the June 2013 Board hearing that he has had symptoms related to his back since service. Regarding the acquired lumbar spinal stenosis secondary to lumbar spondylosis, the April 2015 VA examiner opined that it is less likely as not the back injury that occurred in January 1993 resulted in the development of subsequent degenerative disc disease (DDD) and arthritis with lumbar spinal stenosis as spondylosis or degenerative arthritis affecting the spine is age-related and is the most common cause of acquired lumbar spinal stenosis and typically affects individuals over the age of sixty years. Furthermore, she explained that congenital spinal stenosis is evident on radiological studies which explains the Veteran’s symptomatology during service, therefore, it is less likely as not that this Veteran’s acquired portion of lumbar stenosis occurred in 1993 or during service, or within a year of separation from service. She stated that congenital spinal stenosis is not the cause of or related to acquired spinal stenosis. She further explained that the diagnosis of congenital or acquired lumbar spinal stenosis requires a neuroimaging study- radiology or electrophysiology. While findings on plain radiographs of the lumbar spine can lend support for the diagnosis of lumbar spinal stenosis and may suggest the underlying pathology, MRI is the modality of choice for the diagnosis of lumbar spinal stenosis and a July 2006 MRI showed congenital and acquired lumbar stenosis. A long gap of after service years without worsening back symptoms is consistent with later onset of spondylosis necessitating medical care being sought in 2004. Again, the VA examiner failed to consider the Veteran’s lay statements. The September 2016 Board remand requested an addendum medical opinion to the April 2015 medical opinion to further clarify the previously identified congenital disorder and acquired spinal disorder. An addendum medical opinion was obtained in December 2016. The same VA examiner who provided the April 2015 VA medical opinion provided the December 2016 medical opinion. While the VA examiner clarified that the lumbar spinal canal stenosis was a congenital disease, she essentially restated the same rationales as in the April 2015 medical opinion. The Board does not find either opinion adequate. As noted above, the VA may not assume that a congenital disease must have preexisted service simply because it is congenital. The VA examiner largely based her opinion on the premise that because part of the lumbar spinal stenosis was considered congenital, it must have preexisted service. In June 2018, the Board remanded the issue as the proper standard of review was not used for aggravation of a disability that is not noted at entrance to service. An October 2018 addendum opinion was provided by a different VA physician. She opined that there was clear and unmistakable evidence that the low back disease that existed prior to service did not undergo an increase in its underlying pathology during service. The rationale she provided was that there is no objective corroborative medical evidence of worsening or aggravation of the Veteran’s preexisting congenital back condition beyond its natural progression during service. She stated that this is based on review of in-service and post-service medical records, including serial diagnostic imaging reports of the lumbar spine. She further stated that she concurs with the medical opinions provided by the previous VA examiner in April 2015 and December 2016. The October 2018 VA examiner failed to provide supporting statements in her rationale and failed to consider the Veteran’s lay statements. Additionally, utilizing the same rationale as the previous VA examiners also renders her opinion inadequate as these opinions were found to be inadequate. Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, the RO should obtain an addendum medical opinion that adequately addresses the Veteran’s low back condition. The matters are REMANDED for the following action: 1. Obtain additional VA medical treatment records from October 2018 to present. All reasonable attempts should be made to obtain any identified records. 2. After completing the foregoing actions, arrange for a VA examination with medical opinion by a VA examiner other than the previous examiners to address the claim for service connection for a back disability. The decision for an in-person examination of the Veteran is left to the discretion of the examiner. The Veteran’s record, to include a copy of this remand, should be made available to and reviewed by the examiner, and an opinion as follows is requested: a) Identify all diagnoses associated with the Veteran’s low back condition. b) Did the Veteran’s congenital disease, clearly and unmistakably (i.e., undebatable or to the highest degree of medical certainty) first manifest prior to the Veteran's entry into active service? If so, was it clearly and unmistakably NOT aggravated by service? In other words, is it clear and unmistakable that any worsening of the condition was due to the natural progression of the condition? In this context, "aggravation" has occurred where there is an increase in disability beyond the natural progress of the disease. If there is clear and unmistakable evidence that the back disability preexisted service, the examiner must identify the evidence making it undebatable that the diagnosis preexisted service. The examiner is reminded that upon entry, the Veteran did not have any spine disorders found on examination. c) If the examiner finds that the back condition did not clearly and unmistakably preexist service, for any congenital disease, is it at least as likely as not (50 percent probability or greater) that the condition first manifested in service? d) For any back condition that is determined to NOT be a congenital disease, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any such condition had its onset in service or is otherwise related to service. In responding to above, the examiner must consider the Veteran's lay statements regarding continuity of low back pain on and off since service, as well as the January 1994 Medical Evaluation Board Summary which noted that the Veteran’s low back pain appeared to be associated with loss of strength due to abdominal surgeries. The Board notes that the Veteran had at least two abdominal surgeries during service in 1983 and 1994. The examiner is advised that the term “clear and unmistakable” is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. The term “at least as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examination report must include a complete rationale for any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, the examiner should so state and explain why an opinion cannot be provided without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.