Citation Nr: 20009713 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 15-40 261 DATE: February 5, 2020 ORDER Entitlement to service connection for lumbarization of S1 with spondylolisthesis and arthritis claimed as a low back condition is granted. FINDINGS OF FACT 1. The Veteran entered military service with lumbarization of S1 vertebrae. 2. The Veteran’s lumbarization of S1 vertebrae is characterized as a congenital disease under VA law, as it is capable of improving or deteriorating and is not more or less stationary in nature. 3. The Veteran's lumbarization of S1 vertebrae was aggravated by his in-service injury, resulting in spondylolisthesis. CONCLUSION OF LAW The criteria for service connection for lumbarization of S1 with spondylolisthesis and arthritis, claimed as low back condition, have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Navy from a September 2005 to June 2009 during the Gulf War era. He was awarded the Iraq Campaign Medal (with a Bronze Star) for service in Iraq. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2014 rating decision of the Department of Veterans affairs (VA) Regional Office (RO) in Saint Louis, Missouri. The issue of service connection for a low back disability was previously before the Board in September 2018 when it was remanded for additional development. The Board’s remand directive and the subsequent actions by the AOJ are discussed below. This issue has been returned to the Board for further appellate consideration. 1. Entitlement to service connection for lumbarization of S1 claimed as low back condition Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection is 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). The key distinction in terms of entitlement to service connection for a congenital condition is whether the condition is a defect or a disease for under VA law. A congenital or developmental defect is not considered a disease or injury for VA purposes; therefore, a congenital defect generally may not be service-connected as a matter of law. 38 C.F.R. §§ 3.303 (c), 4.9. The only exception is if there is evidence of additional disability due to aggravation by superimposed disease or injury. VA’s General Counsel has concluded that a defect differs from a disease in that a defect is “more or less statutory in nature” while a disease is “capable of improving or deteriorating.” 38 U.S.C. §§ 1111, 1131; VAOPGCPREC 82-90 (July 18, 1990); Quirin v. Shinseki, 22 Vet. App. 390 (2009). A congenital disease that is subject to aggravation may be service-connected. If it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin at 396-97. VA must then show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated thereby in order to rebut the presumption of soundness. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303 (c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexist service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence (obvious or manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. Id. Analysis The 2013 VA examiner characterized the Veteran’s spondolysis/lumbarization of S1 vertebrae as a “birth defect;” therefore finding the Veteran’s back condition is less likely than not (less than a 50 percent probability) related to service or aggravated by service. Subsequently, the 2014 rating decision on appeal denied service connection for lumbarization of S1 claimed as low back condition. Based on the diagnosis provided in the 2013 VA examination, the AOJ found the Veteran’s condition is a congenital or developmental defect, which is unrelated to military service and not aggravated by it. The AOJ concluded that VA compensation cannot be paid for a congenital abnormality or defect. After the remand, the 2019 VA examiner similarly found the Veteran’s diagnosis of spondylolsis/lumbarization of the S1 vertebral body “clearly and unmistakably” existed prior to service and was therefore not subject to service connection. However, only if the lumbarization of the S1 vertebrae is characterized as a “defect” would its existence prior to service preclude service connection (unless superimposed injury resulted in additional disability). Although the lumbarization of S1 vertebrae is referred to as a “defect” by the VA examiners and the AOJ, the Board finds the characterization of the Veteran’s lumbarization of S1 as a congenital defect is unsustainable under VA law. Because lumbarization of S1 is “capable of improving or deteriorating,” for VA purposes, it is characterized as a “disease.” In other words, the Veteran was born with lumbarization of S1 vertebrae, meaning it is congenital; however, unlike a defect, which is static, because his condition is capable of worsening, it is a disease and may be subject to service connection. The characterization of the Veteran’s S1 lumbarization as a disease is supported by the medical evidence of deterioration resulting in spondylolthesis. The 2019 VA examiner referenced multiple diagnoses indicating a worsening of the condition in addition to the spondylolthesis diagnosed by MRI in September 2013, including degenerative arthritis of the spine (in October 2014) and degenerative disc disease (X-ray results in September 2014). Because the Board finds that the Veteran’s S1 lumbarization is correctly characterized as a “disease,” "capable of improving or deteriorating," under VA law, that condition may be service connected if it was aggravated by service. The Veteran’s lumbarization of S1 was not noted at entrance to service. The Veteran’s enlistment exam did not note the Veteran’s lumbarization of S1 or any low back or spine condition. Nor did any service treatment records identify the Veteran’s lumbarization of S1. The Veteran’s lumbarization of S1 was not noted or diagnosed until the Veteran’s MRI in September 2013. As noted above, when no pre-existing condition is noted upon entry into service, a veteran is presumed to have been sound upon entry. The burden then falls on the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). As to the first prong of the Wagner test, the Board finds that VA has rebutted the presumption of sound condition by clear and unmistakable evidence that the Veteran’s lumbarization of S1 preexisted his service. Lumbarization means that the first sacral vertebrae is not fused as it normally is; in essence there is an extra lumbar vertebrae (L6). Once diagnosed, the medical evidence of record indicates that lumbarization of S1 is a congenital condition which the Veteran has had since birth. In addition, the Veteran indicated in his January 2015 Notice of Disagreement that his lumbarization of S1 vertebrae was not diagnosed for almost 22 years after he was born with it. As to the second prong of the Wagner test, based on the evidence set forth below, the Board finds that VA has not shown by clear and unmistakable evidence that the Veteran’s lumbarization of S1 was not aggravated by his in-service injury. Service treatment records indicate that the Veteran complained of back pain in March 2007 when he felt a “pop” when going down a scuttle on the USS Rushmore. In a statement in support of claim dated May 2013, the Veteran reported that he injured his back in 2007 aboard the USS Rushmore docked in San Diego. He reported that he was trying to go through a hatch and during the bending and twisting required to get through the hatch, he injured his back. He was treated on board, then sent to the Naval Hospital in San Diego for further treatment. He reported current pain while sitting or standing, limited range of motion, and limited activities of daily living. The Veteran’s 2013 lumbosacral MRI report indicated that the lowest lumbar segment L6 is “possibly transitional and partially sacralized on the right.” The Veteran’s December 2013 VA examination found that the MRI imaging identified “lumbarization of S1” with “no subluxation” and no acute abnormality involving the lumbar spine. The Board notes that the 2013 MRI report in fact noted a “slight anterior subluxation of L6 on S1.” The MRI report also noted “mild spondylolisthesis of L6 on the sacrum apparently in flexion which reduces in extension.” A December 2015 VA examination noted lumbosacral strain. A March 2016 VA examination noted lumbosacral strain, with imaging revealing mild disk space narrowing posteriorly at L5-S1, and mild degenerative facet disease. In a Notice of Disagreement of January 2015, the Veteran noted that he submitted a claim for “lower back pain.” He stated that after several doctor visits and x-rays, he was told the pain/injury was “inherited.” He noted that he passed the entry examination to join the military and that it is reasonable to believe his lower back pain is caused by an injury separate from the congenital condition. He stated that he remembers the “exact moment” that his injury occurred while on active duty. He was in the starboard stern gate room on the USS Rushmore. He stated that he believes the duty he was performing in service caused the injury to his back regardless of whether there is also a congenital condition. He also stated that he believes the injury he experienced while on active duty aggravated his congenital condition, causing pain. The Veteran further stated that his pain and lessened mobility was affecting his occupation. The Veteran’s mother provided a statement in October 2015 indicating that prior to joining the Navy in 2005, the Veteran was very active. She stated that the Veteran said that he injured his back while performing his duties on his ship, the USS Rushmore. She further stated that when the Veteran was discharged in 2009, she noticed that he was unable to perform several activities that he loved before he joined the Navy and that he seemed sluggish and was unable to ride in the car without frequent stops because of his back pain. She believes his pain and discomfort are the result of his in-service injury. The Veteran’s chiropractor provided a letter in November 2015 stating that the circumstances of the Veteran's symptoms and the chiropractor’s findings correlate with the Veteran’s service injury described in 2007. The chiropractor noted his finding of hypolordosis of the lumbar spine. Consequent to the Board’s prior remand, the 2019 VA examiner found that the Veteran’s lumbarization of the S1 vertebral body, which existed prior to service, was not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner reasoned that temporary aggravation is plausible, but there is no evidence of permanent aggravation of the pre-existing lumbarization of the S1 vertebral body from an active duty injury. The Board notes that the examiner’s opinion that the aggravation of the Veteran’s lumbarization of S1 is temporary is not clear and unmistakable evidence that the aggravation did not occur or that it is not permanent. Rather, it constitutes additional evidence that the Veteran’s S1 lumbarization was aggravated during service. The Board further notes that the 2019 examiner indicated the Veteran has been diagnosed with spondylolysis (arthritis of the spine). Spondylolysis means there is a developmental crack in one of the vertebrae, usually at L5. When this crack is present, the vertebrae can slip forward, which is called spondylolisthesis. As noted, the 2013 MRI reported the presence of L6 vertebrae when normally there are only 5 lumbar vertebrae. The Veteran's spondylolysis created an articulation between L5 and the sacrum, making it appear on MRI there was a 6th lumbar vertebrae (referred to as L6). The examiner found the Veteran’s spondylolysis/lumbarization of the S1 vertebral body changed the normal articulation of his entire spine, leading to the development of mild arthritis in the facet joints. This is supported by the Veteran’s chiropractor’s statement noting “hypolordosis,” which is when vetebrae in the lower back curve inward more than normal. The Veteran submitted a statement in December 2019 indicating his understanding that he was likely born with lumbarization of the S1 vertebrae, but he believes the injuries he sustained during service more likely than not aggravated the condition and caused the pain and discomfort he experiences. He further stated that in February 2019, he resigned from his position as a police officer, which he described as his “dream career” because he was not able to fully meet the job requirements due to low back pain. He stated that he sees a chiropractor several times per month to help manage the pain. The Board finds the Veteran is competent to report his symptoms and the details of his injury, which are consistent with the circumstances of his service. In addition, his mother is competent to report her observation of her son’s symptoms prior to and following his military service, which the Board finds to be credible. Similarly, the chiropractor is competent to relate his opinion that the Veteran’s symptoms correlate to his in-service injury, which the Board finds credible. The Board finds that the medical evidence, service treatment records, and lay evidence are probative of the issue of whether the Veteran’s congenital S1 lumbarization has been aggravated by his in-service injury. The burden is on VA to show that the Veteran’s in-service injury did not cause aggravation. Because the evidence indicates that it is at least as likely as not that the Veteran’s in-service injury aggravated his S1 lumbarization, causing spondylolthesis, VA has not met its burden. Finding the evidence is at least in equipoise, and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s congenital S1 lumbarization is at least as likely as not aggravated by his in-service injury and has deteriorated, causing spondylolisthesis and arthritis. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for lumbarization of S1 with spondylolisthesis and arthritis is therefore warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Debra B. McLoughlin, 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.