Citation Nr: 20043532 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 16-24 127 DATE: June 29, 2020 REMANDED Issue of entitlement to service connection for a low back condition, to include lumbar disc L4 and spina bifida, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1960 to June 1980. This appeal to the Board of Veterans’ Appeals (Board) arose from a July 2013 rating decision issued by the Department of Veterans Affairs (VA). See September 2013 Notice of Disagreement (NOD); April 2016 Statement of the Case (SOC); May 2016 Substantive Appeal (VA Form 9). The Veteran requested a hearing before a Veterans La w Judge, but later withdrew the request. May 2016, VA Form 9; July 2016, Hearing Request. In July 2018, the Board found that the Veteran’s claim of entitlement to service connection for a low back condition was denied in a prior and final August 1990 rating decision, but that new and material evidence was received and warranted reopening the claim. July 2018, Board Decision. The Board remanded the underlying claim of entitlement to service connection for further development. The Agency of Original Jurisdiction (AOJ) developed the record and continued the denial of the Veteran’s claim of entitlement to service connection for a low back condition, to include lumbar disc L4 and spina bifida. April 2020, Supplement Statement of the Case. The case is now back before the Board. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). Entitlement to service connection for a low back condition, to include lumbar disc L4 and spina bifida The Board cannot make a fully informed decision on the issue of entitlement to service connection for a low back condition because clarification and further development is needed by a VA examiner. The Board finds that clarification is needed on the nature and cause of the Veteran’s spina bifida, including whether it is a current disability. The Veteran was afforded a July 2013 VA examination for back conditions that found a diagnosis of spina bifida in 1969, but the examiner did not indicate whether it is a current disability. A service treatment record noted that the Veteran’s lumbar spine x ray showed spina bifida at S1, but a July 2013 x ray found “no evidence of spina bifida.” September 1969 Service treatment record; July 2013 VA treatment evidence. In addition, the February 2020 VA examiner provided an opinion as to the nature of the Veteran’s spina bifida and whether it was aggravated by service, but the examiner did not indicate that there was a current diagnosis for spina bifida. See February 2020 VA examination for back conditions. If the spina bifida is found to be a current disability, clarification is needed as to whether spina bifida is a congenital defect or disease. As discussed in the July 2018 Board decision, for VA purposes, a “disease” refers to a condition considered capable of improving or deteriorating, whereas a “defect” refers to a condition not considered capable of improving or deteriorating. See also VAOPGCPREC 82-1990. The Board notes that this definition of defect or disease applies for VA purposes even if it is contrary to how the medical community generally refers to a condition. In this case, the February 2020 VA examiner opined that the Veteran’s spina bifida is a birth “defect.” February 2020 VA examination medical opinion. However, the examiner then opined that the Veteran’s spina bifida had not “progressed during service at a greater rate than normally expected,” which would suggest it improved or deteriorated and should be considered a “disease” for VA purposes. See id. The Board also finds that further rationale may be needed as to why the Veteran’s reported back injury from bending over a car and the September 1969 lumbar x ray does not support aggravation of spina bifida, and what evidence supports that there was no more than natural progression. See id. Finally, the Board finds that a more detailed rationale is needed as to whether the Veteran’s degenerative disc disease and lumbar spondylosis was incurred in or is otherwise related to service. The February 2020 VA examiner opined that the Veteran’s degenerative disc disease and lumbar spondylosis is less likely than not incurred in or caused by service based on normal back complaints and examination in 1973 and no treatment in the immediate years after separation, but the examiner did not discuss the Veteran’s lay statement, including that he was told by his September 1969 service treatment provider his long periods of sitting for his duties during service weakened his back muscles and caused muscle strain. The Board finds that an addendum opinion by a VA examiner is needed. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate medical professional to determine the nature and cause of the Veteran’s low back condition, including spina bifida, degenerative disc disease, and lumbar spondylosis. If the medical professional determines that it is necessary, schedule the Veteran for a VA examination regarding the etiology of his current low back condition (or a telehealth interview, review of the record etc., if an in-person examination is not feasible). The examiner should consider and discuss the Veteran’s lay testimony and assertions regarding any pertinent complaints and symptoms. A detailed explanation (rationale) is requested, including citing to supporting clinical data (and/or medical literature), as appropriate. The medical professional should respond to the following: (a) Does the evidence support that the Veteran currently has, or had sometime recent to or since the Veteran’s August 2012 claim, spina bifida? In other words, is spina bifida a current disability? (b) If spina bifida is a current disability, is it a congenital defect or congenital disease? For VA purposes, a “disease” of congenital origin generally refers to a condition considered capable of improving or deteriorating; whereas a “defect” of congenital origin generally refers to a condition not considered capable of improving or deteriorating. Board notes that the examiner should consider whether spina bifida is a defect or disease as defined for VA purposes even if the medical community would normally refer to the condition as a defect. For example, if spina bifida is normally referred to as a defect in the medical community, it would still be considered a disease for VA purposes if it is a condition that is capable of improving or deteriorating. (c) If spina bifida is a congenital “defect” for VA purposes, the examiner is asked to address whether such defect was subject to a superimposed disease or injury during the Veteran’s period of service that has now resulted in additional disability. If so, please identify the resultant disability. Please provide a complete rationale for each opinion expressed, which clearly explains why this is or is not so. (d) If spina bifida is a congenital “disease” for VA purposes, was the onset during service? Please provide a complete rationale for the opinion expressed, which clearly explains why this is or is not so. If possible, cite to any supporting lay or medical evidence. (e) If spinal bifida is a congenital “disease” for VA purposes, but did not have its onset during service, then did spina bifida progress during service at a greater rate than normally expected according to accepted medical authority? Please provide a complete rationale for the opinion expressed, which clearly explains why this is or is not so. If possible, cite to any supporting lay or medical evidence. (f) If spina bifida is an “acquired” disorder, was it caused by or the result of any injury noted during the Veteran’s military service? Please provide a complete rationale for the opinion expressed, which clearly explains why this is or is not so. If possible, cite to any supporting lay or medical evidence. (g) For the Veteran’s lumbar degenerative disc disease and lumbar spondylosis, is it at least as likely as not (a 50 percent or greater probability) that either low back condition began in (or is otherwise related to) the Veteran’s military service? Consider and discuss the Veteran’s statements included in his May 2016 VA Form 9 that indicates he injured his back bending over while working on a car around 1969, had his spine manipulated by treatment providers, felt it pop, and was told it was a muscle problem due to weakening from long hours of sitting in a seat for his duties. (h) For each low back condition is deemed to be unrelated to service, the examiner should, if possible, identify the cause considered more likely and explained why that is so. 2. Review the record and ensure that all development sought in this remand has been completed. Arrange for any further development indicated by the results of the development requested above if deemed warranted by the AOJ, and re-adjudicate the claim. If the claim is denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Lin, 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.