Citation Nr: 21012416 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-33 207 DATE: March 4, 2021 ORDER Entitlement to service connection for a back disability is denied. FINDING OF FACT A back disability did not manifest in service and is not attributable to service. CONCLUSION OF LAW A back disability was not incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to March 1985. This matter was previously remanded by the Board in July 2019 in order to receive an addendum medical opinion regarding the Veteran’s back disability. In particular, the Board wanted an explanation as to whether the Veteran’s back disability was a congenital defect or disease. 1. Entitlement to service connection for a back disability Veterans are entitled to compensation if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. §§ 1110 (wartime service), 1131 (peacetime service). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service -the so-called ‘nexus’ requirement.” See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Under 38 C.F.R. § 3.303(c), “[c]ongenital or developmental defects are not diseases or injuries within the meaning of applicable legislation” governing the awards of compensation benefits. Such defects are not a disease or injury for purposes of service connection. See McNeely v. Principi, 3 Vet. App. 357, 364 (1992); Parker v. Derwinski, 1 Vet. App. 522 (1991). However, service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality (see VAOPGCPREC 82-90, 55 Fed. Reg. 45,711 (1990); see also Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993)). The Veteran contends that his back disability is connected to service. In a June 2013 statement, the Veteran reported that his service as an anti-armor crewman, both as a driver and a passenger, resulted in his back disability. Service treatment records reveal no notations of treatment for a back disability during active duty. At the Veteran’s separation examination in January 1985, clinical evaluation revealed that the Veteran’s spine and musculoskeletal system were marked as “normal.” In the accompanying Report of Medical History, the Veteran marked that he did not have swollen or painful joints and marked “no” for having report recurrent back pain. Medical notes from June 1986 note that the Veteran had a lower lumbar strain for two days. Additional service treatment records, however, do not document any relevant treatment, complaints, symptoms, or diagnoses specific to a back disability. A VA examiner saw the Veteran in February 2019. In an April 2019 medical opinion, the examiner concluded that the Veteran’s back disability was less likely than not related to service. In particular, the examiner noted that “all back diagnoses occurred well after he left active duty and National Guard duty.” The examiner noted that the first finding of any back complaint was summer of 2019, “well over 20 years since lower lumbar muscle strain in 1986 and over 25 years since claimed but unreported active duty back pain.” The VA examiner submitted an addendum medical opinion in April 2020. When discussing whether the Veteran’s back disability was a defect or disease, the examiner stated that the Veteran’s “congenital right transverse process of L5 articulating with sacrum and adjacent ileum at right sacroiliac joint, and/or congenital transitional vertebral body T12 with fused right transverse process and hypoplastic left rib, is/are a congenital ‘defect’ and not a disease.” In support of his position, the examiner explained that there is no medical research that shows that “one can go from normal spine radiographs to spine radiographs showing any bony spinal ‘defect’.” When asked if the Veteran had a superimposed disease or injury on the Veteran’s back disability, the examiner explained that it was, but that it was to the pre-existing congenital defect. The examiner noted that on June 2, 1986, while the Veteran was serving in the National Guard, he did have a “lower lumbar paraspinal muscle tenderness noted on exam and was diagnosed as “lower lumbar strain.’” The examiner noted that two days later the impression of the lower lumbar strain resolved. A final medical opinion was issued in June 2020. The VA examiner concluded that the Veteran’s back disability was a congenital defect that would not improve with rest or treatment. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). The probative value of a medical opinion primarily comes from its reasoning; threshold considerations are whether a person opining is suitably qualified and sufficiently informed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the Board accepts the April 2019, April 2020, and June 2020 VA medical opinions that the Veteran’s back disability is less likely than not related to service as highly probative medical evidence on this point. The Board notes that the examiner rendered these opinions after thoroughly reviewing the claims file and relevant medical records. The examiners noted the Veteran’s pertinent history and provided a reasoned analysis of the case. See Hernandez-Toyens v. West, 11 Vet. App. 379, 383 (1998); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). The Board finds these medical opinions to be highly probative as they are adequately supported by additional rationale, including citation of relevant medical research, along with thorough analysis by the VA medical examiners. While service connection may be granted, in limited circumstances, for superimposed disability on a constitutional or developmental abnormality, there is no evidence that such occurred in this case. In short, the evidence does not reflect aggravation or a superimposed disability. As a result, service connection is not warranted for a back disability. As stated previously, the back disability is a congenital defect. The lower lumbar strain, which occurred in approximately June 1986, was unrelated to the congenital defect. The lower lumbar strain was an acute and transitory condition. The lower lumbar strain had no relationship to the congenital defect. There is no lower lumbar strain currently, and the lower lumbar strain resolved before the Veteran’s service in National Guard ended. The lower lumbar strain does not amount to a superimposed disability per relevant law. In sum, there is insufficient competent and probative evidence linking the Veteran’s back disability to service. The contemporaneous records establish that relevant systems were normal at separation and active duty service treatment records do not document any relevant notations. The more probative evidence establishes that the Veteran’s back disability is not related to any event in service, and is unrelated to the lower lumbar strain suffered in June 1986. The evidence establishes that the remote onset of a back disability is unrelated to service. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jonah Nelson, 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.