Citation Nr: 21066233 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 15-19 593 DATE: October 29, 2021 ORDER Entitlement to service connection for a disability of the cervical spine is granted. Entitlement to service connection for a disability of the thoracolumbar spine is granted. FINDINGS OF FACT 1. Disabilities of the cervical and lumbar spine were not noted in the report of examination at the time the Veteran entered active duty service. 2. There is not clear and unmistakable evidence showing that the Veteran's current disabilities of the cervical and lumbar spine were not aggravated by service. 3. The evidence is at least evenly balanced as to whether the Veteran experienced symptoms of his current disabilities of the cervical and lumbar spine in service. CONCLUSIONS OF LAW 1. The Veteran is presumed to have been in sound condition when he was examined, accepted, and enrolled for service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 2. With respect to the Veteran's current disabilities of the cervical and lumbar spine, the record does not include clear and unmistakable evidence rebutting the presumption of soundness. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). 3. With reasonable doubt resolved in favor of the Veteran, his current disabilities of the cervical and lumbar spine were incurred in service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1969 to February 1971. This case comes to the Board from a decision issued by the Agency of Original Jurisdiction (AOJ) in December 2010. The Board remanded these issues for further development in July 2018 and, most recently, in March 2021. Service Connection for Disabilities of the Cervical and Thoracolumbar Spine Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection "basically . . . means that . . . a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces . . . . This may be accomplished by affirmatively showing inception or aggravation during service . . ." 38 C.F.R. § 3.303(a). Statements in the medical records raise the issue of whether the Veteran may have had disabilities of the spine before joining the Army, implicating the presumption of soundness. See Gilbert v. Shinseki, 26 Vet. App. 48, 54 (2012). Under this statutory presumption, except for defects, infirmities or disorders noted on an entrance examination, every veteran is generally presumed to have been in sound condition when examined, accepted, and enrolled for service. See 38 U.S.C. § 1111. A medical history, even if recorded at the time of examination does not constitute a notation of such conditions for the purposes of the presumption of soundness. 38 C.F.R. § 3.304(b)(1). "When no preexisting condition is noted upon entry into service, the veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the claimed disability was both preexisting and not aggravated by service." Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (emphasis added). This is a difficult burden to overcome because the clear and unmistakable standard is a high one and because of the two-part nature of the burden. Moreover, with respect to the aggravation prong of the burden, the Secretary is in the unusual position of being required to prove a negative. See Horn v. Shinseki, 25 Vet. App. 231, 238 (2012) ("When the presumption of soundness applies, however, the burden remains on the Secretary to prove lack of aggravation and the claimant has no burden to produce evidence of aggravation.") According to the report of medical examination shortly before he joined the Army, dated May 1968, the Veteran's spine was normal. On the day of that examination, the Veteran also prepared a report of medical history, in which he indicated that he had previously experienced recurrent back pain. Because the medical history form does not constitute a notation of a pre-existing disability for the purpose of the presumption, the presumption of soundness applies in this case. 38 C.F.R. § 3.304(b)(1). The remaining service medical records do not indicate diagnoses for any disabilities of the spine, nor do they mention complaints of back or neck pain. There is a separation examination report, dated October 1970, which indicates that the spine was normal. Unfortunately, it seems that the claims file does not contain a second medical history report form, which is often prepared at the time of a person's separation examination. Post-service medical records indicate spinal stenosis in both the cervical and lumbar segments, with regular treatment since at least September 2003. There is also evidence of degenerative disc disease in both spinal segments. This evidence satisfies the "current disability" requirement for both of the Veteran's claims. See Fagan, 573 F.3d at 1287. To support his claim, the Veteran submitted a letter from a neurologist in private practice, dated November 2010, which explains that the author has treated the Veteran for his back and neck symptoms since 2004. The diagnoses were lumbosacral spinal stenosis and multilevel disc disease, cervical stenosis with multiple degenerated discs in both the cervical and thoracic areas, and cervical spondylosis. The letter provides a summary of imaging studies identifying the specific vertebrae affected and attributing spinal stenosis, at least in part, "to congenital short pedicels and epidural lipomatosis . . ." These spinal disabilities were associated with lumbar radiculopathy. The neurologist's letter also describes the Veteran's account of the origins of his current spinal symptoms. "[The Veteran] started getting problems," the letter explains, "when he was working in the army . . . During the basic training, he had to do vigorous running and carry weights. He had to carry more than 225 lb of weight and run for 100 yards. Since then, he had back problems but later on also his back has not gotten better. He was trained as a combat engineer in bridge building, which involved physically pushing, pulling and lifting heavy objects. I certainly feel that his spinal stenosis and his back pain were aggravated because of all these above duties." The transcript of an August 2011 hearing before a decision review officer at the AOJ includes the Veteran's description of heavy manual labor during his bridge building duties. The Veteran remembered his back symptoms beginning in the Spring of 1969, during his advanced individual training. In its July 2018 remand, the Board instructed the AOJ to arrange examinations of the cervical and thoracolumbar spinal segments and to obtain opinions from the examiner to assess the probability that the current disabilities were related to service. After arranging the examinations, the AOJ obtained the requested opinions concerning the cervical and thoracolumbar spinal segments in January 2020. As the Board explained in its most recent remand, the January 2020 opinions were inadequate for two reasons: (1) when concluding that a relationship between the current spinal disabilities and service was unlikely, the examiner failed to apply the standard for rebutting the presumption of soundness; and (2) to justify unfavorable conclusions, the January 2020 examiner relied on the absence of contemporaneous medical records documenting in-service symptoms concerning the neck and back without sufficiently addressing the Veteran's statements describing the chronicity of those symptoms during and since his military service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (absence of treatment for the claimed condition in the service medical records, standing alone, is insufficient to justify an unfavorable opinion). For the thoracolumbar spine, the post-remand examiner prepared an unfavorable opinion in April 2021. On this opinion questionnaire, the examiner gave negative answers to part III ("Medical Opinion for Direct Service Connection") and to part V ("Medical Opinion for Aggravation of a Condition that Existed Prior to Service"). With respect to part V, the examiner marked the box next to pre-printed text to indicate, "The claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness." To support her negative answer to part III, the examiner emphasized that the Veteran "was not diagnosed with any back condition before or during service. He was not diagnosed with lumbar [degenerative disc disease], [degenerative joint disease] or stenosis till 30 years later due to onset of pain." The examiner then mentioned a May 2005 imaging study indicating the presence of a congenital spinal stenosis. According to the examiner, "The signs and symptoms of congenital or primary spinal stenosis may not become apparent until adulthood, during mid-life years. . ." In her answer to part V of the thoracolumbar spine questionnaire, the examiner repeated the reference to the likely congenital spinal stenosis and the possibility that such a condition may not become apparent until adult or mid-life. After noting the absence of in-service records documenting aggravation of the Veteran's pre-service back pain and his description of "heavy manual labor during service" the examiner wrote, "It is plausible that this placed additional stress on [the] spinal column, however I am unable to determine this concretely due to the lack of any treatment notes reflecting chronicity of symptoms. . . He was diagnosed with [degenerative disc disease], [degenerative joint disease], however his congenital primary spinal stenosis does not cause osteoarthritis or degenerative disc disease." The examiner prepared a similar opinion concerning the cervical spine, which mentions that the Veteran, "reported [the] onset of neck pain due to heavy manual job requirements as a combat engineer." On the part of the questionnaire for direct service connection (Part III), the examiner emphasized the absence of treatment records reflecting symptoms of neck pain until 2004. "Due to this lapse, [I am] unable to derive if etiology of [the Veteran's] spondylosis is anything but natural degeneration. Despite [the Veteran's] subjective claims, [I am] unable to render opinion without resort to mere speculation." As in the questionnaire concerning the thoracolumbar spine, the examiner indicated, on Part V, that the claimed condition clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event or illness. But the examiner began her rationale for this conclusion with the statement, "[The Veteran] did not have a pre-existing cervical spine condition." The rest of the explanation for the opinion focuses on the absence of treatment records reflecting symptoms associated with the cervical spine prior to 2004. Neither of the April 2021 opinions is adequate to support a decision denying the Veteran's claims. Nevertheless, "even if a medical opinion is inadequate to decide a claim, it does not follow that the opinion is entitled to absolutely no probative weight." Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). Indeed, the flaws of the April 2021 opinions, when considered together with the favorable opinion of the Veteran's treating neurologist, support findings that, for both spinal segments, the evidence is not strong enough to rebut the presumption of soundness. As noted, the presumption of soundness is an unusual legal standard because, to support a ruling against the Veteran, it requires that the Secretary prove a negative. See Horn, 25 Vet. App. at 238 ("When the presumption of soundness applies, however, the burden remains on the Secretary to prove lack of aggravation and the claimant has no burden to produce evidence of aggravation.") It is clear that the April 2021 examiner failed to apply this aspect of the standard. On the thoracolumbar spine opinion questionnaire, the examiner wrote that, "It is plausible that [in-service lifting] placed additional stress on [the] spinal column, however I am unable to determine this concretely due to the lack of any treatment notes reflecting chronicity of symptoms. . ." This statement improperly places the burden on the Veteran to prove aggravation. A similar error is implicit in the examiner's suggestion that, due to the absence of in-service medical records confirming the Veteran's statements about in-service neck pain, it would be impossible to provide the requested opinion without speculation. This error is confounded by the examiner's markings on the questionnaire indicating, in spite of the apparent need for speculation, that the required relationship between the current disability and service is less likely than not. The April 2021 opinions raise a potentially significant issue in referring to the congenital nature of the Veteran's spinal stenosis, apparently with respect to both spinal segments. Some of his current spinal disabilities, such as the degenerative changes in his cervical and thoracic spinal segments, do not, according to the examination reports, appear to be congenital. But a disease, even if it is of congenital origin, can be incurred or aggravated in service if its symptomatology did not manifest until after entry on active duty. See VAOGCPREC 8-88 (Sept. 1988), reissued as VAOPGCPREC 67-90 (July 18, 1990). Congenital or developmental defects are not considered diseases or injuries within the meaning of the legislation and, hence, do not constitute disabilities for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9. Only congenital defects, as opposed to congenital diseases, are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries. The test for distinguishing a congenital defect from a congenital disease is whether the disorder in question is subject to change. See VAOPGCPREC 67-90. "[C]ongenital or developmental defects are normally static conditions which are incapable of improvement or deterioration." Id. The opinion states further: "A disease, on the other hand, even one which is hereditary in origin, is usually capable of improvement or deterioration." Id. The Board has considered the possibility of remanding the spinal claims for new medical opinions clarifying whether stenosis of the cervical and thoracolumbar spinal segments is a congenital disease or defect and, if a disease, to assess the probability that spinal stenosis may have been aggravated during service. Fortunately, when considered together with the April 2021 opinions, the November 2010 letter from the neurologist gives the Board enough information to resolve these questions today and to resolve them in the Veteran's favor. The neurologist's letter identified the "primary" cause of the Veteran's spinal stenosis as "congenital short pedicels and epidural lipomatosis. . ." The neurologist concluded that, not only the Veteran's back pain, but also "his spinal stenosis . . . were aggravated because of all of these above duties [during service as a combat engineer]." If the Veteran's pre-existing congenital spinal stenosis was indeed subject to aggravation, as the neurologist opined, it follows that the condition meets VA's definition of a congenital disease. See VAOPGCPREC 67-90 ("A disease, on the other hand, even one which is hereditary in origin, is usually capable of improvement or deterioration."). The April 2021 examiner's acknowledgment that it "is plausible" that in-service strenuous labor "placed additional stress on [the] spinal column" is consistent with the November 2010 neurologist's opinion. The Board finds that the November 2010 neurologist's opinion is persuasive and that, when combined with the equivocal aspects of the April 2021 opinions mentioned above, that the opinion supports findings that the evidence in this case is not strong enough to establish that current disabilities of the cervical and thoracolumbar spine clearly and unmistakably existed before the Veteran's military service and clearly and unmistakably were not aggravated during service. "[I]f the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection." Wagner, 370 F.3d at 1096. The Veteran is competent to provide information about symptoms of back and neck pain which he has personally experienced. Cf. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds that his credible statements, together with the diagnoses of current disabilities in both spinal segments and the persuasive favorable opinion of the November 2010 private neurologist, when considered together, establish that the evidence is at least in equipoise as to whether the current spinal disabilities manifested in service. By law, the doubt resulting from this equipoise in the evidence is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'. . . , the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding . . . benefits."). Accordingly, the Board will grant service connection for current disabilities of the cervical spine and the thoracolumbar spine. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.