Citation Nr: 21062181 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 16-56 095 DATE: October 6, 2021 ORDER The Board of Veterans' Appeals' (Board) August 11, 2021 decision remanding the service connection claim for a lumbar spine condition is vacated. The Board's August 11, 2021 decision remanding the increased rating claim for right knee patellofemoral syndrome is vacated. The Board's August 11, 2021 decision remanding the increased rating claim for left knee patellofemoral syndrome is vacated. Service connection for a lumbar spine condition is granted. FINDINGS OF FACT 1. VA received correspondence on August 31, 2020, which contained medical evidence, not yet reviewed by the Agency of Original Jurisdiction (AOJ), also contained a waiver of AOJ review. 2. VA issued a July 24, 2020 statement of the case (SOC), denying a rating in excess of 10 percent for bilateral knee patellofemoral syndrome. 3. VA received the Veteran's VA Form 10182 on August 14, 2020, opting into the evidence submission lane. 4. VA sent the Veteran correspondence on November 17, 2020, informing her that it received her VA Form 10182 and that the appeal was placed on the Evidence Submission docket. 5. VA received the Veteran's VA form 21-22a, showing that Ryan J. Coskrey was the Veteran's appointed representative. 6. The August 2021 Board decision did not acknowledge the Veteran's wavier of AOJ review, did not recognize that the increased rating claims for the bilateral knee disability was accepted into the AMA process, and did not recognize the Veteran's representative of record. 7. The Veteran's scoliosis existed prior to her active-duty service and the weight of the evidence supports that the condition was permanently aggravated by her active duty service. CONCLUSIONS OF LAW 1. The criteria for vacatur of the Board's decision issued on August 11, 2021, remanding the service connection claim for a lumbar spine condition, and the increased rating claims for bilateral knee patellofemoral syndrome, have been met. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. 2. The criteria for service connection for a lumbar spine condition have been met. 38 U.S.C. § 1131; 38 C.F.R. §§ 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to August 1988. Vacatur The Board may vacate an appellate decision at any time upon request of the appellant or her representative, or on its own motion, when a claimant has been denied due process of law or has been granted benefits based on false or fraudulent evidence. 38 C.F.R. § 20.904. The August 2021 Board decision remanded the service connection claim for a lumbar spine condition and the increased rating claims for bilateral knee patellofemoral syndrome. The Board decision noted that following a February 2020 SOC regarding the service connection claim and the July 2020 SOC regarding the increased rating claims, additional relevant evidence, including private examination reports and private treatment records were received in August and September 2020, but were not reviewed by the AOJ. In March 2021, the Veteran and her representative were sent correspondence informing her that new evidence had been received, but not yet reviewed by the AOJ. She was informed that she had a right to have the AOJ review the evidence, and had 45 days to respond, and if not heard from, it would be assumed that she did not wish to have the Board decide the appeal and would remand for AOJ review. The Veteran did not respond to the letter and the Board issued the August 11, 2021 Board decision. Following the August 2021 Board decision, VA received correspondence from the Veteran's authorized representative. See Third Party Correspondence received September 6, 2021. The representative pointed out that in conjunction with the new medical evidence, the Veteran had waived the right to have AOJ review. See Medical Treatment Record Non-Government Facility received August 31, 2020. The representative also pointed out that the Veteran opted the issues of the bilateral knee ratings into the Appeals Modernization Act (AMA), following the issuance of the July 24, 2020 SOC. The Veteran's representative filed a VA Form 10182 and selected the Evidence Submission lane. Lastly, the representative noted that the Board had not recognized him as the representative of record. Included in the September 2021 correspondence was a Motion to Vacate the Board's August 11, 2021 decision. The representative asserted that the service connection claim should not have been remanded because waiver of AOJ review was provided and that the Board did not recognize that the increased rating claims regarding the knees was accepted into the AMA's Evidence Review docket and should not have been a part of the August 11, 2021 legacy Board decision. Here, the Board agrees with the Veteran's representative. As such, a vacatur of the August 11, 2021 Board decision is warranted. See 38 C.F.R. § 20.1000 (a). Here, the service connection claim for a lumbar spine condition will be readjudicated in this Board decision and the increased rating claims for bilateral knee patellofemoral syndrome will be addressed in a separate Board decision that is adjudicated pursuant to the AMA. Service Connection In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131. "Service connection" means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. The Federal Circuit has distinguished between those cases in which the pre-existing condition is noted upon entry into service, and cases in which the pre-existence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); see also 38 U.S.C. § 1132 (presumption of sound condition). In a case where there is no pre-existing condition noted upon entry into service, the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (a) the condition pre-existed service and (b) the pre-existing condition was not aggravated by service. Wagner, 370 F.3d at 1345. Here, the Veteran's scoliosis was noted upon entry. The March 1986 enlistment examination showed that the medical officer noted minimal lumbar scoliosis, on the spine, other musculoskeletal section of the clinical evaluation. As such, the presumption of soundness does not apply. As such, the Veteran can only bring a claim for aggravation of the preexisting condition, and she bears the burden to show worsening of the pre-existing condition with evidence of symptomatic manifestations of the condition during service. The Veteran's service treatment records (STRs) document numerous complaints of low back pain in 1988. Due to her back pain, the Veteran was referred to a medical board, which found that she had chronic mechanical low back pain. The Veteran was afforded a VA examination in March 2018. After an in-person examination and a review of the Veteran's claims file, the examiner provided a negative nexus opinion regarding direct service connection. The examiner reported that the Veteran's STRs noted back pain and that she had arthritis in the lumbar spine. The examiner also noted that in the 20-30 years following her separation from the military, she had normal or near normal back x-rays. Further, the examiner also noted that at the present time, her x-rays remained near normal and consistent with a person aged 50 years old. The Veteran was afforded a VA examination in February 2020. After an in-person examination and a review of her claims file, the examiner provided a positive nexus opinion, regarding direct service connection. The examiner explained that the STRS indicated chronic lumbar complaints in 1988 and the Veteran has continued to experience low back pain, which was documented by the Medical Board in 1988. The Veteran provided a private examination report and an accompanying medical opinion from August 2020, from a private physician. After a review of the Veteran's medical records, the physician provided a positive nexus opinion. The examiner acknowledged the March 2018 VA examiner's negative nexus opinion, but noted that the opinion discussed direct service connection, but made no mention of aggravation. Based on the x-ray findings of record, the physician explained that the Veteran had a pre-existing condition, scoliosis. The examiner also explained that the March 2018 VA examiner's finding, that the Veteran's x-rays were near normal, was incorrect. The physician reported that an October 2009 x-ray showed scoliosis, which is not a normal x-ray finding. The physician also reported that the VA examiner completely discounted the Veteran's statements concerning her development of symptoms in service and the continuous symptoms she has experienced. Regarding aggravation, the physician pointed to a March 2010 VA examination report, where the VA examiner opined that the Veteran's scoliosis did exist prior to her military service, and that it aggravated pain in the already present mechanical back condition. The physician agreed with that opinion and explained that the scoliosis condition was aggravated on active-duty service, especially due to gait changes from her knee condition and the development of chronic back pain during service. Further, over time, the lumbar spine condition has continued to deteriorate into degenerative disc disease (DDD). The physician concluded by stating after a review of the medical records and after an in-person examination, it was more likely than not that her back condition is service connected by way of aggravation, with a 0 percent pre-service level of disability. The physician acknowledged the February 2020 VA examiner's positive nexus opinion, but noted that the opinion only considered direct service connection, and ignored the theory of aggravation of the scoliosis. The physician reported that the more accurate and beneficial action would be to recognize the aggravation theory. As noted, if a worsening of a pre-existing condition is shown, VA has the burden of rebutting the presumption by clear and unmistakable evidence. Here, the Board finds that VA has not shown by clear and unmistakable evidence that the Veteran's pre-existing scoliosis was not aggravated during her active-duty service. Further, the Veteran has submitted a private medical opinion to show that her scoliosis was permanently aggravated as a result of her service. The Board affords the private physician's opinion great probative weight because they were able to examine the Veteran in-person, as well as review the pertinent evidence of record. In support of their opinion, the physician provided a robust rationale to explain their reasoning. The physician explained that the scoliosis pre-existed service, which is corroborated by the contemporaneous evidence of record because the 1986 enlistment examination noted the presence of minimal lumbar scoliosis. Further, the physician explained that the scoliosis condition was permanently aggravated, as shown by gait changes due to her knee condition and the development of chronic back pain during service. As such, the Board is satisfied with the evidence which shows that the Veteran's pre-existing scoliosis had become symptomatic during her active-duty service and that the condition had worsened beyond its natural progression. Accordingly, service connection for a lumbar spine condition is granted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.