Citation Nr: 20031699 Decision Date: 05/06/20 Archive Date: 05/06/20 DOCKET NO. 15-29 128 DATE: May 6, 2020 ORDER The claim of entitlement to service connection for a low back disorder, to include status post lumbar fusion, diskectomy, degenerative disc disease (DDD), and facet joint disease, claimed as low back syndrome, is denied. FINDINGS OF FACT 1. Chronic low back disability, to include status post lumbar spine fusion, diskectomy, DDD, and facet joint disease, first manifested many years after the Veteran’s separation from service, and the preponderance of the evidence is against a finding that they are in any way related to service. 2. The Veteran’s spina bifida is a congenital defect which was not subject to a superimposed injury or disease that caused additional disability during service. CONCLUSION OF LAW The criteria for entitlement to service connection for low back disability, to include status post lumbar fusion, diskectomy, DDD, and facet joint disease, have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303,3.307, 3.309 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1968 to September 1971. The claim was remanded in September 2018 for additional evidentiary development. At that time, the procedural history was provided. Moreover, there was a summary of pertinent evidence of record. For judicial economy and efficiency, these details will not be repeated here. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110 (wartime), 1131 (peacetime) (2012); 38 C.F.R. § 3.303(a) (2019). In addition, disorders diagnosed after discharge may also still be service-connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. 38 C.F.R. § 3.303(d) (2019). See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). As a general matter, service connection requires competent evidence showing: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Under 38 C.F.R. § 3.303(b) (2019), where the evidence shows an enumerated “chronic disease” in service (or within the presumptive period under § 3.307), or “continuity of symptoms” of such a disease after service, the disease shall be presumed to have been incurred in service. Walker v. Shinseki, 708 F.3d 1331, 1335-37 (Fed. Cir. 2013). In the present case, arthritis/DDD is an enumerated “chronic disease” listed under 38 C.F.R. § 3.303(a) (2019); therefore, 38 C.F.R. § 3.303(b) (2019) would apply if arthritis is noted or shown in the record. Walker, 708 F.3d at 1338-39. Service connection for an enumerated “chronic disease” listed under 38 C.F.R. § 3.309(a) (2019) can also be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2019). VA is to give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a) (2012). The Federal Circuit has held that medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and the Veteran’s military service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2019). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and “may provide sufficient support for a claim of service connection.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 Layno v. Brown, 6 Vet. App. 465, 469 (1994). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, 581 F.3d at 1316. Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In adjudicating claims for VA benefits, the burden of proof only requires an “approximate balance” of the evidence for and against a claim. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2019); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1991). This low standard of proof is “unique” to the VA adjudicatory process, and “the nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding such benefits.” Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (citing Gilbert, 1 Vet. App. at 54). Background and Analysis As noted above, the Board remanded the claim in September 2018 for additional evidentiary development. Specifically, the Board sought clarification on the current nature and etiology of the Veteran’s back condition. Subsequently added to the record were additional treatment records and VA examination report from August 2019, to include an addendum report dated in November 2019. The treatment records received show that the Veteran’s treatment for chronic low back disorders continues. It is noted that the VA examination report from August 2019 includes notation that the claim file was reviewed, and there was an in-person examination. The examiner provided a detailed summarization of the pertinent medical records, to include from service and thereafter. In the initial report, the examiner noted that the Veteran had a preexisting congenital defect (spine bifida) that was not aggravated during service. This condition was noted to be asymptomatic at the time, and radiologic studies did not reveal a worsening of the condition either. There was an-inservice back injury, however, in February 1973 that resulted in the Veteran’s chronic lower back conditions of lumbosacral fusion and diskectomy with residual pain and bilateral lower extremity radiculopathy, degenerative disc, and facet joint disease with bulging disc protrusion. An addendum was requested in that the VA examiner’s favorable opinion was based on a finding that there was in-service back injury in February 1973. Clarification was needed as the Veteran’s active service actually ended in September 1971. In the addendum report from November 2019, the same VA examiner noted that with no back injury during service, there was no evidence showing that the Veteran’s back disability was related to active duty. In effect, the VA examiner, after review of the file and examination of the Veteran, opined that there was no superimposed injury to the Veteran’s congenital defect of spina bifida. Whether the Veteran’s spina bifida occulta is a congenital defect as opposed to a disease is important because “congenital diseases, but not defects, may be service connected.” Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that “non-disease or non-injury entities such as congenital defects” are not “disabilities” within the meaning of 38 U.S.C. § 1110 ); 38 C.F.R. § 3.303(c) (2019) (providing that congenital or developmental defects “are not diseases or injuries” for VA disability compensation purposes). VA law defines “defects” and “diseases” for purposes of determining if service connection is warranted. In Quirin, the United States Court of Appeals for Veterans Claims (Court) explained that “a defect differs from a disease in that the former is ‘more or less stationary in nature’ while the latter is ‘capable of improving or deteriorating,’“ and stated that “any worsening-any change at all-might demonstrate that the condition is a disease.” 22 Vet. App. at 394-395 (quoting VAOGCPREC 82-90 (1990)). The Court further explained that an examiner’s determination of whether a condition is a congenital disease or defect “must be supported by ‘guidance from medical authorities regarding the proper classification of [the] medical condition at issue.’ ” Id. at 395 (quoting VAOGCPREC 82-90)). More recently, the U.S. Court of Appeals for the Federal Circuit has provided a concise summary of the difference between a defect and disease for VA disability benefits determinations, stating that an essentially valid contrast between a disease and a defect is that a disease is capable of improving or deteriorating and a defect is not. O’Bryan v. McDonald, 771 F.3d 1376, 1379 (Fed. Cir. 2014). As a matter of judicial notice, spina bifida occulta is a “congenital cleft of spinal column.” See, e.g., Blanchard v. Derwinski, 3 Vet. App. 300, 301 (1992). Spina bifida occulta is defined as spina bifida in which there is a defect of the vertebral arch without protrusion of the spinal cords or meninges. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1748 (32nd ed. 2012). As such, spina bifida occulta is a congenital defect and, by definition, occurs at birth and necessarily pre-existed military service. Under 38 C.F.R. § 3.303(c) (2019), these are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a condition prior to service is established, no additional confirmatory evidence is necessary. Accordingly, the Board concludes that the preponderance of the evidence supports a finding that the Veteran had a congenital defect of the spine, namely spina bifida, when he entered active duty in September 1968. The 2019 VA examiner who reviewed the claim file offered the opinion that the lower back condition, which he diagnosed as status post lumbar fusion and diskectomy with DDD and facet joint disease and with congenital defect (spina bifida), was less likely than not related to active service. The examiner acknowledged that the Veteran entered service with an asymptomatic congenital defect which suffered no superimposed injury during service, and that post service low back disorders were not manifested until after injury in early 1973. While the Veteran may believe that his current low back disorders are due to service, as a lay person, he has not been shown to have specialized training sufficient to render such an opinion. See Jandreau, supra. In this regard, the diagnosis and etiology of chronic musculoskeletal disabilities requires medical testing and expertise to determine. Thus, his lay opinion regarding the etiology of her lower back condition is not competent medical evidence. The Board finds the opinion of the VA examiner in 2019 to be highly persuasive and probative in finding that the evidence does not support a conclusion that any of the Veteran’s lower back disabilities is due to service. The findings of the VA examiner were based on a review of the evidence and cited to the medical evidence. The examiner considered the complete record and the Veteran’s contentions and provided an explanation as to why the evidence does not support a finding that the Veteran’s lower back disorder, which includes a congenital deformity of spina bifida as well as DDD, is related to service. The opinion contains an internal logic consistent with the known facts, as well as with other evidence of record. The Board finds this opinion highly probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The most probative and persuasive evidence is against finding that the Veteran’s current lower back disorder is related to service. Accordingly, service connection for a lower back disorder is denied. As the preponderance of the evidence is against the Veteran’s lower back disorder claim, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert, supra. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Hal Smith, 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.