Citation Nr: 21066675 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 14-35 337A DATE: November 1, 2021 REMANDED Entitlement to service connection for degenerative disc disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1986 to March 1987, from November 2004 to November 2005, and from February 2006 to July 2007. This case comes before the Board of Veterans' Appeals (the Board) from a February 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a January 2019 hearing. The transcript of the hearing is of record. On July 14, 2021, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a Joint Motion for Partial Remand (JMPR) that remanded the issue of a lumbar back service connection claim back to the Board for reconsideration consistent with the terms of the motion. See Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). Pursuant to the Court's remand and Kutscherousky v. West, the Board issued a 90-day letter to the Veteran and his representative dated July 21, 2021 notifying them of their ability to submit additional evidence or argument in support of their appeal within 90 days. 12 Vet. App. 369 (1999) (per curiam); see 38 C.F.R. § 20.1304. The Veteran and his representative submitted no new evidence, and thus the Board will proceed to consider the JMPR in this case. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). The substance of the Court's JMPR will be discussed further below. In May 2019, the Board remanded the above issue. Based on the Court's JMPR, the issue must again be remanded. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to service connection for degenerative disc disease of the lumbar spine is remanded. On the Veteran's last tour of active duty from February 2006 to July 2007, while deployed to Operation Iraqi Freedom in the vicinity of Logistics Support Base Anaconda, near Balad, Iraq, the Veteran was involved in a vehicle incident in December 2006 where his back was injured. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In addition, the Board notes 38 U.S.C. § 1154(b), which provides that for any veteran who engaged in "combat" with the enemy, VA shall accept lay or other evidence as proof of a disease or injury being incurred in or aggravated by such service even if there is no official record of such incurrence, so long as the evidence is consistent with the circumstances of such service. Sizemore v. Principi, 18 Vet. App. 264 (2004); VAOPGCPREC 12-99 (October 18, 1999); see 38 C.F.R. §§ 3.304(d) (general combat presumption). Here, the Board notes the December 2006 incident in Balad, Iraq during deployment for Operation Iraqi Freedom where the Veteran asserts his lumbar back injuries originated. The Board finds that the Veteran meets the evidentiary standard outlined in 38 U.S.C. § 1154(b), and the RO is to consider the Veteran's report of injury in service as qualifying for the purposes of service connection, as already noted in the service and VA medical records for the Veteran. The Veteran's medical records prior to his December 2006 incident in Iraq where his back was injured are silent for any back or related orthopedic issues. A January 2006 service examination prior to his last active duty period noted no problems or issues. The Veteran also received a July 2006 pre-deployment examination, which was silent for any issues, problems, or complaints. In the initial evaluation of the Veteran's lumbar back injuries in January 2007 while still in theater, the military physician interpreting the radiology results remarked on his report that a congenital pars defect in the lumbar back in the vicinity of L-5. VA imaging after active service showed similar findings, to include a September 2008 VA treatment note that indicated "spondylolisthesis, congenital." A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). This is known as the "presumption of soundness" doctrine. However, if there is a preexisting disorder detected at some point, then the legal analysis for service connection differs, depending on whether or not that preexisting disorder was "noted" at service entrance. If a preexisting disorder is "noted" at service entrance, then it is a 38 U.S.C. § 1153; 38 C.F.R. § 3.306 aggravation case. The burden is on the Veteran to show by preponderance of the evidence standard that a worsening occurred during service beyond a normal progression. By definition, all congenital "defects" preexist service, then this type of analysis applies, and the evidence requires a finding of superimposed injury of top of that preexisting condition. If the evidence does not show worsening, then the claim for service connection fails, as the preexisting disorder has been adjudged to have not worsened. If the preponderance of the evidence shows worsening, then the presumption of aggravation is triggered, and to rebut the presumption of aggravation VA has the evidentiary burden by using clear and unmistakable evidence to show that the preexisting disorder was not aggravated during service. If a preexisting disorder is not "noted" at service entrance, then it is a 38 U.S.C. § 1111; 38 C.F.R. § 3.304 aggravation case. If that is the determination, then the evidentiary burden is entirely on VA by a clear and unmistakable evidence standard to show both a) the disorder preexisted service, and b) the preexisting disorder was not aggravated during service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The Secretary (of VA) may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added); see also Horn v. Shinseki, 25 Vet. App. 231 (2012). To allow for proper legal analysis of a Veteran's claim as it pertains to the claimed disability, medical clarification may be necessary as to whether the Veteran's condition is a congenital or developmental "disease" or "defect." See id.; Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). If the claimed disorder is a disease, an opinion may be required as to whether it was as likely as not aggravated by the veteran's period of active service beyond its natural progression. If the claimed disorder is a defect, an opinion may be required as to whether it was as likely as not subject to a superimposed disease or injury during military service that resulted in disability apart from the congenital or developmental defect. Congenital or developmental defects themselves are not diseases or injuries within the meaning of the applicable legislation and are generally not subject to service connection. 38 C.F.R. §§ 3.303(c), 4.9; see Winn v. Brown, 8 Vet. App. 510, 516 (1996). Service connection is only possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. See VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. In the initial evaluation of the Veteran's lumbar back injuries in January 2007 while still in theater, the military physician interpreting the radiology results remarked on his report that a congenital pars defect in the lumbar back in the vicinity of L-5. VA imaging after active service showed similar findings, to include a September 2008 VA treatment note that indicated "spondylolisthesis, congenital." The Board notes that spondylolisthesis is considered a disease in the general medical literature. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1926 (32d ed. 2012). The Veteran received an August 2010 VA examination and negative opinion for direct service connection for his lumbar spine disability claim. The examiner noted the December 2006 Iraq accident and that he was diagnosed with a cervical strain, given a trigger point injection, and provided with prescription pain relievers. An MRI taken in 2008 was noted, when the Veteran began general medical care with the VA, and degenerative disc disease was noted at L-2, and L-3 with minimal retrolisthesis. This examiner noted what he called a congenital pars defect in the lumbar spine and stated in his examination narrative that the noted degenerative disc disease of the lumbar spine at L5-S1 was "secondary" to that pars defect. However, the examiner did not attempt an analysis consistent with 38 U.S.C. § 1111 and 38 C.F.R. § 3.304 regarding the possibility of a pre-existing condition. The Board found that August 2010 VA examination and opinion to be inadequate and remanded for a new examination and opinion for service connection, to include consideration of the pre-existing issue pursuant to 38 C.F.R. § 3.304. VA provided an examination and opinion in December 2019 to address the Veteran's claim for his lumbar back and the concerns expressed by the Board in its May 2019 remand. This December 2019 VA examiner considered that condition to be a disease and not a defect. Her rationale was that while there was acute injury to the Veteran's middle and possibly also the lower back in the December 2006 Iraq accident, that later VA imaging well after the injury healed, in September 2008, indicated previously existing spondylolisthesis, a disease and not a defect. Further, that December 2019 VA examiner opined in the context of possible aggravation of a condition that existed prior to service, that the Veteran's claimed condition of a lumbar back disability, clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service, event, or illness. As noted above, the Court vacated and remanded the Board's April 2020 decision. The Court, in its Joint Motion for Partial Remand (JMPR), called attention to the that December 2019 VA examiner's determination that the Veteran's preexisting condition was a disease, and not a defect. No. 20-5311, 2021 U.S. App. Vet. Claims (July 14, 2021) (unpublished). The Board, in the April 2020 decision that was vacated by the CAVC with regard to the Veteran's lumbar back claim, had relied upon that December 2019 VA examiner's determination that the Veteran's preexisting condition was a disease, and not a defect. Because the CAVC vacated that April 2020 decision, the determination regarding the Veteran's claimed lumbar back disability arising from his 2006 vehicle accident in Iraq is now an open question, and remand is required for a VA medical expert's determination as to whether the Veteran's preexisting condition, if one is so found in the new examination, is a disease or a defect, and if there is aggravation or worsening of the condition during service. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for the appropriate VA examination by a VA medical professional with expertise in orthopedics to determine the nature and etiology of the Veteran's lumbar back disability, to include all orthopedic and neurological manifestations. The electronic claims file, to include the Veteran's service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. The examiner is to be reminded that pursuant to 38 U.S.C. § 1154(b), that there is a relaxed evidentiary standard for proving the onset or aggravation of an injury or disease during combat, and that the Board has conceded the allegation of injury without further proof based on the Veteran's combat service in Iraq as already noted in his service records regarding both his thoracic and lumbar back claims. Based on a review of the record, the reviewer must address the following for the lumbar back disability: (a.) Does the evidence of record clearly and unmistakably (i.e., it is undebatable) show that the Veteran has a lumbar back disorder or condition which preexisted service, and if so, whether it is a preexisting condition that is not congenital, or a congenital condition? (b.) If a pre-existing condition by clear and unmistakable evidence, is it at least as likely as not (50 percent or greater likelihood) that the pre-existing lumbar back disorder underwent any worsening (i.e., increase in severity) during service? The examiner must address the service treatment records which address lumbar back complaints and increasing pain, to include as from the December 2006 incident in Iraq. (c.) If so, is there clear and unmistakable evidence (undebatable) that such worsening of the pre-existing back disorder during service was due to the natural progress of the disease? (d.) If the Veteran's pre-existing condition is a congenital defect, is there evidence of additional disability due to aggravation during service of the congenital defect by any superimposed disease or injury? (e.) If there is not clear and unmistakable evidence that the back disorder preexisted service and is not congenital, then the Veteran must be considered to have been sound at entry without a diagnosis of a back disorder. Based upon that premise, is it at least as likely as not (a probability of 50 percent or greater) that the Veteran has a lumbar back disorder which had its onset in service or is otherwise related to service? The examiner must address the Veteran's competent report of his medical history including his report that he experiences lumbar back pain since active duty to the present. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A detailed rationale supporting the examiner's opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.