Citation Nr: 20021853 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 14-38 515A DATE: March 27, 2020 ORDER Entitlement to service connection for lumbar degenerative joint disease is granted. FINDING OF FACT Lumbar degenerative joint disease is shown to be causally related to the Veteran’s active service. CONCLUSION OF LAW The criteria for service connection for a low back disability, diagnosed as lumbar degenerative joint disease, have been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2012 to February 2013. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issues on appeal for additional development in February 2019. The requested spine examination and opinion was obtained in August 2019. As such, the directives have been substantially complied with and the matter is again properly before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2019 the Board granted service connection for a left foot disability and remanded the issues of service connection for sinusitis, rhinitis and obstructive sleep apnea, and entitlement to temporary total ratings due to a service-connected disability requiring convalescence after October 18, 2013, January 7, 2015 and November 16, 2016 surgeries. In a June 2019 rating decision, the RO assigned a temporary total rating following the October 18, 2013, left foot surgery. Then, in an October 2019 rating decision the RO granted service connection for sinusitis, rhinitis and sleep apnea, as well as temporary total ratings following the January 7, 2015 and November 16, 2016 surgeries. As these awards constitute a full grant of the benefits sought as to each issue, the service connection and temporary total ratings issues are no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in August 2018. A transcript of the hearing is of record. 1. Entitlement to service connection for a low back disability. Generally, to establish service connection 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.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Congenital or developmental defects are not considered disabilities for VA compensation purposes. 38 C.F.R. § 3.303(c). The term “defect” is a structural or inherent abnormality or condition which is more or less stationary in nature. VAOPGCPREC 82-90. However, when there is a superimposed disease or injury in service, service connection may be granted for any disability resulting from the superimposed disease or injury. Id.; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). The Veteran has a current diagnosis of scoliosis and degenerative joint disease of the lumbar spine, as reflected in July 2019 x-ray reports. With respect to the diagnosis of scoliosis, a July 2019 VA examiner stated that scoliosis is a congenital defect, and therefore service connection for scoliosis is barred as a matter of law. 38 C.F.R. § 3.303(c). As such, the Board will not address the scoliosis diagnosis further. However, as noted above a disability resulting from an in-service disease or injury superimposed on a congenital defect may be service connected. VAOPGCPREC 82-90. Here, service treatment records reflect that the Veteran reported back pain in November 2012, and that he endorsed a history of back pain on a January 2013 post-deployment health assessment. The Veteran again reported a history of back pain on a May 2013 post-deployment health re-assessment, and further stated that his back pain worsened during his deployment. As such, the Veteran’s service treatment records reflect that he sustained an in-service injury. Concerning the presence of a nexus, VA obtained medical opinions concerning the etiology of the Veteran’s back disability in August 2014 and August 2019. The August 2014 VA examiner stated that it was less likely than not that the Veteran’s low back disability was due to service. In support of this opinion, the examiner stated that there was only one instance of treatment for low back pain while in service, in November 2012, and that the Veteran’s degenerative changes were consistent with the ageing process. However, the August 2014 opinion’s characterization of the evidence appears to be incorrect, as the Veteran clearly reported problems with back pain in both January 2013 during his period of active service and in May 2013 following his period of active service. Further, as noted in May 2013 the Veteran clearly reported that his back pain had worsened during service. As such, the statement that the Veteran only reported low back pain once is inaccurate, and therefore the opinion is entitled to no probative weight. Reonal v. Brown, 5 Vet. App. 458, 460–61 (1993). Conversely, based on a review of the Veteran’s service treatment records the August 2019 VA examiner stated that the Veteran’s military service did exacerbate his back pain. The examiner stated that while the scoliosis was not worsened by service, the Veteran’s back pain was definitely directly due to his military service. The examiner then noted that the Veteran was diagnosed with both moderately severe levoscoliosis and mild degenerative joint disease of the lumbar spine. While overall the wording of the opinion is not a model of clarity, the August 2019 opinion does clearly state that the Veteran’s current back pain is directly related to his military service. Further, back pain was identified as a symptom of both diagnosed lumbar disabilities on the August 2019 lumbar spine examination report. In reading the examination report and the opinion as a whole, the Board finds that the August 2019 examiner provided a positive opinion linking the Veteran’s degenerative joint disease to his reports of pain in service. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012); Acevedo v. Shinseki, 25 Vet. App. 286, 293–94 (2012). Further, in a November 2019 private opinion, D.T., D.C., opined, essentially, that it was highly likely that the Veteran’s condition, lumbar degeneration, is a direct result of his long term military service, with the accompanying physical demands. Further, in a November 2019 private opinion, Dr. C.T., D.C., opined, essentially, that it was highly likely that the Veteran’s condition, idiopathic lumbar and thoracic scoliosis with lumbar degeneration is a direct result of his long term military service, with the accompanying physical demands. While the Board finds the VA examiner’s opinion that the Veteran’s scoliosis is a congenital defect and thus, barred by law from being service connected is probative evidence against the claim, Dr. C.T.’s opinion supports the VA examiner’s positive conclusion as to the Veteran’s lumbar degenerative joint disease. No further opinions concerning the etiology of the claimed low back disability are of record. (Continued on the next page)   As such, and in the interest of giving the Veteran the full benefit of the doubt, the Board finds that the evidence of record establishes that the Veteran’s lumbar degenerative joint disease is causally related to an in-service injury superimposed on the Veteran’s congenital defect. As such, service connection for lumbar degenerative joint disease is warranted. 38 C.F.R. §§ 3.102, 3.303. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.