Citation Nr: 21064066 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 17-23 615 DATE: October 19, 2021 ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a low back disability is reopened. REMANDED Entitlement to service connection for a low back disability is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In an October 1999 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for a low back disability. The Veteran did not appeal or submit new and material evidence within a year of the decision. Therefore, the October 1999 rating decision became final. 2. At the time of the October 1999 rating decision, the record did not contain the Veteran's detailed December 2019 Board hearing testimony regarding his in-service injuries to his lumbar spine. This evidence is new and material and raises a reasonable possibility of substantiating the claim. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disability. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.156, 20.202 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1990 to June 1994. He appeals September 2013 (low back disability) and June 2014 (TDIU) rating decisions by the AOJ. In December 2019, the Veteran testified before a Veterans Law Judge regarding his petition to reopen his claim of entitlement to service connection for a lumbar spine disability. At the December 2019 Board hearing, the Veteran also provided testimony as to his claim of entitlement to TDIU. A transcript of that hearing is associated with the claims file. The Veterans Law Judge who conducted the hearing is no longer employed by the Board and is not available to participate in this decision. In June 2021, the Board sent the Veteran a letter providing him with 30 days to respond and indicate whether he desired another opportunity to testify at a hearing before the Board before a new Veterans Law Judge, or if he wanted the Board to proceed with the adjudication of his appeal. The letter indicated that if he did not timely respond to the letter, the Board would assume that he did not want to appear at another hearing. The Veteran did not respond to the letter. The Board will therefore proceed with adjudication of the claims at this time. In March 2020, the Veteran testified before the undersigned regarding his claim of entitlement to TDIU. A transcript is of record. Following the Board hearings noted above, the Board remanded the Veteran's petition to reopen his claim of entitlement to service connection for a lumbar spine disability in March 2020 for further development. In November 2020, the Board remanded the Veteran's claim of entitlement to TDIU for further development in a separate decision and under a separate docket number. Upon the completion of the additional development, the claims have been merged and will be addressed in one decision. REASONS FOR REMAND 1. Low Back Disability Following the March 2020 Board remand of the Veteran's low back disability claim, a VA examiner opined in March 2021 that "[t]here is no evidence that his congenital spinal stenosis was worsened by back strain during service." However, the examiner provided no rationale in support of her opinion that the Veteran's spinal stenosis is a congenital defect. In general, service connection may not be granted for congenital or developmental defects. See 38 C.F.R. § 3.303 (c). However, under certain circumstances, service connection may be warranted for congenital or developmental diseases, as opposed to defects. See VAOPGCPREC 82-90; see also 38 C.F.R. § 3.306. Additionally, service connection may be granted for any additional disability that results where a congenital or developmental defect is subject to, or aggravated by, a superimposed disease or injury. See VAOPGCPREC 82-90. The examination did not address whether the Veteran's low back disability was subject to a superimposed disease or injury. Thus, a remand is required to obtain an additional VA opinion to adequately adjudicate the claim. 2. TDIU A decision on the remanded issue of entitlement to service connection for a low back disability could significantly impact a decision on the issue of entitlement to TDIU, the issues are inextricably intertwined. Thus, a remand of the claim for entitlement to TDIU is required. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his claims before the Board that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After completing the development requested in item 1, obtain a medical opinion from a qualified clinician for the Veteran's low back disability claim. The electronic claims file must be made available to the clinician for review in connection with the request for an opinion. If the reviewing clinician determines that an in-person examination (including via telehealth interview) is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the reviewing clinician should address the following: (a.) Is the Veteran's spinal stenosis a congenital defect or a congenital disease? Generally, a "disease" is a condition considered capable of improving or deteriorating, whereas a "defect" is a condition not considered capable of improving or deteriorating. (b.) If the examiner concludes that spinal stenosis is a congenital defect, the examiner should opine as to whether it is at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury during military service that resulted in additional disability. (c.) If it is determined that the Veteran's spinal stenosis is a congenital disease, then is there clear and unmistakable evidence that it preexisted the Veteran's service? (d.) If the answer to (c.) is yes, then is there clear and unmistakable evidence that the preexisting spinal stenosis was not aggravated beyond its natural progression during service? (e.) If the answer to (c.) or (d.) is no, then is it at least as likely as not that the Veteran has a current low back disability that is related to his documented low back injuries during his service? In rendering these opinions, the reviewing clinician is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the reviewing clinician rejects the Veteran's reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner must consider the March 1999 medical opinion, in which a private physician opined that the Veteran's back problems are a continuation of back problems in service. A complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Undertake any development necessary to adjudicate the claim for TDIU. Catherine Cykowski Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.