Citation Nr: 21064808 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 05-32 271 DATE: October 21, 2021 REMANDED Service connection for a cervical spine disability (claimed as degenerative disc disease of the cervical spine, status post neck surgery) is remanded. Service connection for a lumbar spine disability (claimed as degenerative disc disease of the lumbar spine) is remanded. REASONS FOR REMAND In August 2020, an orthopaedist physician reviewed the claims folder, which included listing the evidence considered, and opined that the Veteran's back and neck disabilities are not due to service. With regard to the back, the examiner stated that service treatment records are silent for low back pain or low back trauma. Subsequent treatment notes consistently document a work-related injury to the lower back in the 1980s while carrying plywood, with multiple notations that the Veteran did not have low back pain prior to this time. The Veteran has subsequently been noted to have mild degenerative disease of his lumbar spine on multiple imaging studies and examinations. This level of disease was found to be commensurate with normal aging, with no indication of significant prior trauma or injury. In addition, the multiple internal inconsistencies within the Veteran's reports of his injury, in particular as noted in 1997, make his personal statements less credible. Although subsequent examiners felt his low back pain and degenerative change was related to an injury while in service, there is no objective information within the treatment notes to substantiate this, with multiple notes indicating initial injury in 1980 due to a work injury. The Veteran's first documented treatment for his lower back was over a decade after the reported jeep accident. With regard to the neck, the examiner stated that service treatment records are silent for neck injury or pain while inservice, to include the Veteran's discharge physical examination. Multiple imaging studies of the Veteran's cervical spine document a congenital partial fusion of the cervical spine. This is not related to his military service in any way (pre-existing congenital condition). It would be expected to produce increased stress on the adjacent cervical spine levels, with development of more severe cervical spine disease than would be expected for his age. The Veteran did not undergo any treatment for his neck until a significant period of time after his military service. There is no nexus for this condition. It is more likely than not that the Veteran's cervical degenerative disease is due to both his congenital partial cervical fusion and aging, and not to any injury sustained while in service. Although previous examiners have felt his neck condition was greater than expected for his age, and attributed this to the jeep accident, in my opinion this is due to his congenital condition. His service treatment records are silent for neck or back complaints, as are his medical records for a significant time period following his discharge from military service. There are additional notations in the file that are closer in time to the Veteran's military service (1997) noting that the Veteran did not injure his neck in the jeep accident. The examiner found that the internal inconsistency and inconsistency with other evidence in the records makes the Veteran's later statements less compelling. As noted above, the 2020 examiner believed that the Veteran had a pre-existing congenital defect of the cervical spine. The provisions of 38 C.F.R. §§ 4.9, 4.57 make a distinction between congenital and acquired defects. Service connection for a congenital or developmental defect is precluded by 38 C.F.R. §§ 3.303(c), 4.9. In this regard, congenital or developmental defects are not "diseases or injuries" within the meaning of applicable statutes and regulations. See 38 C.F.R. §§ 3.303(c), 4.9; Terry v. Principi, 340 F.3d 1378, 1383-84 (Fed. Cir. 2003). VA's Office of the General Counsel has distinguished between congenital or developmental defects, for which service connection is precluded by regulation, and congenital or hereditary disease, for which service connection may be granted, if initially manifested in or aggravated by service. O.G.C. Prec. Op. 82-90, 55 Fed Reg. 45711 (1990); O.G.C. Prec. Op. 67-90, 55 Fed. Reg. 43253 (1990). Defects were defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature." O.G.C. Prec. Op. 82-90, 55 Fed. Reg. 45711 (1990). However, congenital or development defects may be service-connected where a superimposed disability occurs during, or as a result of, active service. VAOPGCPREC 82-90. Therefore, congenital or developmental defects are not diseases or injuries for the purposes of service connection and can only be granted by establishing that an additional disability that is related to service has been superimposed upon the congenital disorder. 38 C.F.R. §§ 3.303(c), 4.9; Winn v. Brown, 8 Vet. App. 510 (1995). An opinion must be sought as to whether the Veteran's congenital partial fusion of the cervical spine was subject to a superimposed injury during his period of service. The examiner also referred to the disability as a "pre-existing" congenital disability. The Veteran is presumed under the law to have been in sound condition when he entered active duty. 38 U.S.C. § 1111. The Court, however, has held that, as a matter of law, the presumption of soundness is rebutted by clear and unmistakable evidence consisting of a veteran's own admission of a pre-service history of medical problems during in-service clinical examinations. Doran v. Brown, 6 Vet. App. 283, 286 (1994). The law further provides that the burden to show no aggravation of a pre-existing disease or disorder during service is an onerous one that lies with the government. See Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Importantly, the VA Office of the General Counsel determined that VA must show by clear and unmistakable evidence that there is a pre-existing disease or disorder and that it was not aggravated during service. See VAOPGCPREC 3-03 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id. The Board must follow the precedent opinions of the General Counsel. 38 U.S.C. § 7104(c). The burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. Wagner, 370 F.3d at 1096. An opinion must be sought in light of the examiner's finding of a pre-existing congenital disability. In the July 2020 Board Remand, it was instructed that an examiner in formulating the opinions must provide an appropriate rationale, to include consideration and discussion of the lay assertions and medical evidence of record. The examiner was instructed to specifically comment on the prior favorable opinions of record, to include those proffered in December 1993, May 2015, November 2015, October 2018, and December 2018. If the examiner agreed or disagreed with the conclusions of the prior examiners, it should be explained why. As detailed, the August 2020 examiner noted that although subsequent examiners felt his low back pain and degenerative change was related to an injury while in service, there is no objective information within the treatment notes to substantiate this, with multiple notes indicating initial injury in 1980 due to a work injury. The August 2020 examiner, however, did not specifically comment on the prior favorable opinions of record. Thus, remand is necessary for an addendum opinion. The matters are REMANDED for the following action: 1. Request that the August 2020 orthopaedist (or another orthopaedist if the August 2020 orthopaedist is unavailable) review the claims folder, to include this Remand, and provide opinions as to the following: a) Is a lumbar spine disability at least as likely as not (a 50 percent or more probability) related to active service? b) Was congenital partial fusion of the cervical spine subject to a superimposed chronic disability (as opposed to an acute increase in pain) during service? c) Did an acquired disability of the cervical spine clearly and unmistakably manifest prior to enlistment? If so, did the preexisting cervical spine disability clearly and unmistakably NOT undergo a permanent increase in disability during the Veteran's period of active service beyond any natural progress? d) If an acquired cervical disability did not clearly and unmistakably preexist active service, is a cervical spine disability at least as likely as not (a 50 percent or more probability) related to active service? In formulating the opinions, the examiner must provide an appropriate rationale, to include consideration and discussion of the lay assertions and medical evidence of record. The examiner should specifically comment on the prior favorable opinions of record, to include those proffered in December 1993, May 2015, November 2015, October 2018, and December 2018. If he or she disagrees with the conclusions of the prior examiners, it should be explained why. An examination should be scheduled if deemed necessary by the examiner. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.