Citation Nr: 21007265 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 19-36 125A DATE: February 9, 2021 REMANDED Entitlement to service connection for a low back injury is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1961 to February 1966. This matter comes before the Board of Veteran’s Appeals (Board) from a May 2018 rating decision of the Department of Veteran Affairs (VA), Regional Office (RO). The issue was previously before the Board in August 2020 and remanded for the RO to attempt to obtain any outstanding personnel and service treatment records for the period from November 21, 1961, to February 10, 1966. In that regard, there has been substantial compliance. The RO was also tasked with providing the Veteran with a VA medical opinion addressing the etiology of his lower back disorder. The Board finds the medical opinion of October 2020 incomplete, and thus, there has not been substantial compliance. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a low back injury is remanded. The Veteran contends that his back disability was incurred in service and, over the years, has evolved to his current disability. In his November 2018 notice of disagreement (NOD), the Veteran reported that while in service and on an oil-coated ladder, he “slipped and fell backward to the floor of the tank and was knocked unconscious. [He] woke up with headaches and back pain the next day. The Corpsman determined that since he did not ‘break anything,’ [he] was given pain killers and bed rest for several days before returning to duty. [They] were at war – [he] had to keep moving.” Since then, he has had recurring back pain, which he brushed off and took pain killers. He believed this caused his current disability. A medical opinion was provided in October 2020. The examiner diagnosed degenerative arthritis of the spine and spinal stenosis and provided a negative nexus to service. The examiner explained that the “spinal stenosis was mild and congenital, meaning it was present at birth.” The Board notes that the entrance examination of November 1961 noted solely “the usual childhood diseases.” A back disorder was not indicated. The Veteran was found physically qualified for enlistment. A veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service except as to defects, infirmities, or disorders noted at the time of examination, acceptance, enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). To rebut the presumption of soundness, the burden is on VA to satisfy a two-prong test by showing by clear and unmistakable evidence that the Veteran’s disability both existed before service and was not aggravated during service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). Service connection may be granted for diseases, but not defects, of congenital, developmental, or familial origin. VAOPGCPREC 82-90 (July 18, 1990); VAOPGCPREC 67-90 (July 18, 1990). In differentiating the two categories, VA’s Office of General Counsel has stated that, when viewed in the context of 38 C.F.R. § 3.303 (c), the term “defects” would be definable “as structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90. In contrast, a “disease” refers to a condition considered capable of improving or deteriorating. Id. Additionally, a congenital defect can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur during service, service connection may be warranted for the resulting disability. Id. Service connection is available for congenital diseases that first manifest in service or are aggravated in service. Service connection is not available for congenital defects, but service connection may be awarded for disease or injury that is superimposed upon the congenital defect during service. Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993); VAOPGCPREC 82-90. Since the examiner determined that the Veteran’s mild spinal stenosis was congenital and present since birth, the Board finds that a supplemental opinion is warranted. Moreover, regarding the degenerative arthritis of the spine, as the examiner also did not address the Veteran’s contentions of continuation of symptomology, his use of pain killers for his back pain, and whether the arthritis was manifested to a compensable degree within one year of service, a remand is also warranted. Accordingly, the issue is REMANDED for the following action: 1. Provide the Veteran’s claims file to a qualified clinician so that a supplemental medical opinion may be provided to determine the nature and etiology of his lower back disorder. A physical or telehealth examination of the Veteran is only required if deemed necessary by the clinician. The entire claims file and a copy of this remand must be made available to the clinician to review. For the diagnosis of spinal stenosis, the clinician is asked to opine as to: a. Whether it is a congenital defect, a congenital disease, or neither. (A defect is a condition that can neither improve nor worsen. A congenital disease, for VA purposes, is a congenital condition that is subject to improvement and/or worsening). b. If it is a congenital defect, explain whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in active duty that resulted in additional disability of the back. c. If it is a congenital disease, determine whether there is clear and unmistakable evidence that it existed before service. If so, the examiner must then address whether there is clear and unmistakable evidence that it did not worsen beyond its normal progression during service. The examiner is advised that the evidentiary standard for whether a condition existed before service is “clear and unmistakable,” which is a formidable evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be “undebatable.” d. If spinal stenosis is found to be neither a congenital defect nor a disease, determine whether it is at least as likely as not (50 percent or greater probability) began during active service, or is related to an incident of service. Regarding the diagnosis of DJD, the examiner must provide an opinion as to: Whether it is at least as likely as not (50 percent or greater probability) began during active service; or is related to an incident of service; or if arthritis is diagnosed, began within one year after discharge from active service. The examiner should consider the Veteran’s lay assertion of falling into a steel tank, which caused a back disability that has persisted to the present. For this remand only, and for the limited purpose of providing a medical opinion, the clinician should assume that the lay statements are true, including his in-service incident and his taking pain killers for his recurring back pain. If there is a medical reason to doubt the veracity, the clinician should explain why the Veteran’s recollection is inconsistent with the principles of medical science and/or the evidence in this case. The clinician is advised that an opinion based solely on lack of documentation in service is not sufficient and that the Veteran’s assertion of continuity of symptoms since service must be addressed in the opinion. (Continued on the next page)   The clinician must provide a complete rationale for his or her opinion(s) in the examination report. If any of the above-requested opinions cannot be made without resort to speculation, the clinician must state this and provide a rationale for such a conclusion. 2. Readjudicate the claim. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Stevens, 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.