Citation Nr: 20021050 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 19-36 439 DATE: March 24, 2020 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right arm disability is remanded. REASONS FOR REMAND The Veteran had active service from May 1980 to September 1991. This matter comes before the Board of Veterans Appeals (Board) on appeal from a rating decision issued in April 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to Service Connection for a Thoracolumbar Spine Disability is Remanded. The Veteran is seeking service connection for a thoracolumbar disability. Service treatment records reflect treatment for muscle trauma to the lumbar area. See February 1983 service treatment record. Service treatment records additionally reflect treatment for complaints of chronic back pain. See May 1990 service treatment records. A May 1990 radiological examination report showed transitional lumbar vertebrae with partially sacralization on the left side, thought to be developmental. At a March 2018 VA examination the Veteran was diagnosed with degenerative arthritis of the spine. The VA examiner opined that the Veteran’s lumbar condition was less likely as not proximately due to injuries sustained during military service. The examiner’s rationale was that a review of the Veteran’s May 1991 separation examination indicated that the Veteran reported experiencing “back spasms once to three times” per year and that this condition was noted to be relieved by meds, physical therapy, and rest. The examiner concluded that this condition was unlikely to have contributed to the Veteran’s current lumbar condition. However, the examiner disregarded the Veteran’s report of chronic history of lower back pain which he asserted caused him to miss approximately one day of work annually. This report was corroborated by an April 2017 private treatment record which indicated that the Veteran sought emergency room care for complaints of lower back pain and right hip pain. At that time, the Veteran reported that his pain was worse with walking and movement, and with bending and lifting. More importantly, the March 2018 examiner did not address the May 1990 radiological examination report which showed transitional lumbar vertebrae with partially sacralization on the left side, thought to be developmental. Thus, the examiner disregarded consideration as to whether the Veteran’s thoracolumbar spine disability was congenital in nature, and if so, whether it was a congenital defect or a congenital disease. The VA’s General Counsel has indicated that there is a mutually exclusive distinction between a congenital or developmental “disease” and a congenital “defect” for service connection purposes. Congenital diseases may be recognized as service connected if the evidence as a whole shows aggravation in service within the meaning of VA regulations. 38 C.F.R. § 3.306. However, congenital or developmental defects are not service connectable in their own right, although service connection may be granted for additional disability due to disease or injury superimposed upon a defect during service. VAOPGCPREC 82-90 (1990). Distinguishing between a congenital disease and a congenital defect turns on whether the condition is dynamic or static in nature. A disease is dynamic, “capable of improving or deteriorating,” and “any worsening-any change at all-might demonstrate that the condition is a disease.” Quirin v. Shinseki, 22 Vet. App. 390, 394-95 (2009) (discussing quoting VA Gen. Coun. Prec. 82-90 (July 18, 1990)). On the other hand, a defect is structural and an inherent abnormality or condition is more or less stationary in nature. A remand is necessary to obtain a VA medical examination to ascertain whether the Veteran’s thoracolumbar spine disability is a congenital disease or a congenital defect, and if so, whether it was aggravated during active service, whether the Veteran suffers additional disability due to injuries or diseases superimposed on a thoracolumbar spine disorder, or whether there is clear and unmistakable evidence that the Veteran’s thoracolumbar spine disability pre-existed active service and was not aggravated beyond its natural progression by Veteran’s active service. If the thoracolumbar spine disability did not pre-exist active service, it is necessary to determine whether the Veteran’s thoracolumbar spine began during active service or is otherwise etiologically related thereto. 2. Entitlement to Service Connection for a Cervical Spine Disability is Remanded. As for the cervical spine condition, the Veteran was afforded a VA examination in March 2018 to evaluate the likely etiology of the condition. The examiner found that the Veteran’s cervical spine disability was not caused by his active service and was independent of his right shoulder surgery performed in 1989. The examiner’s rationale was that service treatment records did not indicate a neck condition was present during the peri-operative period. The examiner noted that service treatment records did indicate in-service treatment for neck pain, however, the examiner stated that the Veteran’s complaints of neck pain appeared to represent acute and completely resolved entities. Thus, he concluded that there was no evidence of a chronic cervical condition related to military service. There was no mention of the Veteran’s report of a chronic history of neck problems which included continual daily neck pain exacerbated by activities that require him to turn his head such as when driving and heavy lifting. The Veteran’s report was further corroborated by a September 2016 private treatment record documenting the Veteran’s detailing that he takes Percocet while off duty for neck pain. The VA’s duty to assist a Veteran includes ensuring an adequate examination once VA has undertaken the effort to provide one to a Veteran. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In cases where both causation and aggravation are at issue, a medical opinion must address both. El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013). The March 2018 VA examination is inadequate because it does not address aggravation. Accordingly, a remand is necessary here to comply with the VA’s duty to assist the Veteran. 3. Entitlement to Service Connection for a Right Arm Disability is Remanded. The Veteran contends that he is entitled to service connection for a right arm disorder. The Veteran was afforded a VA examination in March 2018. The examiner found that the Veteran’s right arm condition was not caused by his active service and was independent of his right shoulder surgery performed in 1989. The examiner’s rationale was that service treatment records did not indicate that a right elbow or forearm condition was present during the peri-operative period. There was no mention of the Veteran’s report of occasional stiffness and pain in his right lower arm, including the elbow. The Veteran’s report is further corroborated by a December 2013 private treatment record which showed that the Veteran complained of shoulder pain such that he could not raise his hand with weights without experiencing pain. The March 2018 VA examination is inadequate because it does not address aggravation. El-Amin, supra. Accordingly, a remand is necessary here to comply with the VA’s duty to assist the Veteran. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA medical examination by a qualified medical professional to evaluate the nature and likely etiology of his back disability. The claims file must be made available to the examiner for review in connection with the examination, and the examiner must state that he/she has reviewed the claims file. The examiner must first determine the proper diagnosis to account for the Veteran’s back symptomatology, and then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed back condition is related to the Veteran’s active service. Specifically, the examiner must address whether any diagnosed back disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service Then, irrespective of the answer to this query, the examiner must address the following: (a) Is the diagnosed back condition a congenital or developmental defect or disease? (The term “disease” is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. On the other hand, the term “defect” would be definable as structural or inherent abnormalities or conditions that are more or less stationary in nature.) (b) If the back condition is a congenital or developmental defect, is it at least as likely as not (a 50 percent probability or greater) that the Veteran experienced a superimposed injury or disease in service that resulted in additional disability? (c) If the back condition is not a congenital or developmental defect, opine as to the likelihood that any currently or previously diagnosed back condition clearly and unmistakably preexisted service, and clearly and unmistakably did NOT worsen beyond natural progression during service. “Clear and unmistakable” evidence is a much more formidable evidentiary burden to meet than the preponderance-of-the-evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an “onerous” and “very demanding” evidentiary standard, requiring that the evidence be “undebatable.” See Cotant v. West, 17 Vet. App. 116, 131 (2003). The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. 2. Schedule the Veteran for an examination by an appropriate clinician to evaluate the nature and likely etiology of any cervical spine and/or right arm disability. The claims file must be made available to the examiner for review in connection with the examination, and the examiner must state that he/she has reviewed the claims file. The examiner must first determine the proper diagnosis to account for the Veteran’s neck and right arm symptomatology, and then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that any diagnosed neck and/or right arm condition is related to the Veteran’s active service. Specifically, the examiner must address whether any diagnosed neck and/or right arm disability at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. In addition, irrespective of the answer to the above, the examiner is also requested to provide an opinion as to whether it is at least as likely as not that any diagnosed neck and/or right arm condition was caused or aggravated by one or more service-connected disabilities (as listed in a October 2019 rating decision), specifically to include the service-connected right shoulder disability. Both causation and aggravation must be addressed. The examiner should note that the term “aggravated by” refers to a chronic or permanent worsening of the underlying condition, as contrasted to mere temporary or intermittent flare-ups of symptoms that resolve and return to the baseline level of disability. If the opinion is that one or more service-connected disabilities aggravated the neck and/or right arm condition, the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. The examiner must provide any and all opinions as to etiology in the form of a probability and must provide a complete rationale for any opinion expressed. C. M. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. 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.