Citation Nr: 21014336 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 17-01 453 DATE: March 11, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a low back condition is reopened and, to this extent only, the appeal is granted. REMANDED The issue of entitlement to service connection for a low back condition is remanded. FINDINGS OF FACT 1. In a final February 2008 rating decision, the RO denied the Veteran's claim of service connection for a low back condition. 2. Evidence associated with the record since the final February 2008 rating decision is not cumulative and redundant of the evidence of record at the time of the decision and does raise a reasonable possibility of substantiating the Veteran's claim of service connection for a low back. CONCLUSION OF LAW New and material evidence has been received to reopen the claim of service connection for a low back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from October 1965 to September 1967. New and Material Evidence New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). When determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Evidence is new if it has not been previously submitted to agency decision makers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion. Id. For purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. New and material evidence having been received, the claim of entitlement to service connection for a low back condition is reopened and, to this extent only, the appeal is granted. The Veteran's claim was originally denied in February 2008. He was notified of the outcome and did not file a notice of disagreement within one year, nor was any additional evidence pertinent to the claim received within one year of the February 2008 decision. The February 2008 rating decision became final based on the evidence then of record. The evidence considered in February 2008 includes service treatment records (STRs), a January 2008 VA examination, private medical records, and lay statements. The February 2008 rating decision denied the Veteran's claim based on the RO's finding that there was no evidence that the Veteran's low back condition was related to his service. Since the last final rating decision, the evidence pertaining to the Veteran's claimed low back condition includes VA medical records, private treatment records, private medical opinions, and lay statements. The evidence has not been previously considered and is evidence which tends to substantiate the previously denied claim. See Shade, 24 Vet. App. at 120-21. The evidence is both new and material, and the Board finds that the reopening of this claim is warranted. REASONS FOR REMAND The issue of entitlement to service connection for a low back condition is remanded. The matter is REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: In the January 2021 Board hearing, the Veteran testified that he was born with scoliosis and an extra vertebra in his spine. He testified that he learned of his spinal condition prior to service when he was injured while playing football. He testified that an x-ray subsequent to the reported pre-service football injury showed a curvature in his back, along with an extra vertebra. He stated that he presented a letter addressing his condition to the entrance examination center at induction. However, service records do not contain documentation of the reported letter. In the January 2021 Board hearing, the Veteran’s representative stated that some of the Veteran’s records may have been destroyed by fire, presumably, the 1973 fire at the NPRC. The record contains multiple requests for information pertaining to the Veteran’s service records. However, there is no indication in the record that the Veteran’s records were destroyed, to include the 1973 fire at the NPRC, and his service records appear as otherwise intact. The record reflects that the Veteran has degenerative disc disease (DDD) and lumbar spine congenital stenosis. Service connection is available for congenital diseases, but not defects, that are aggravated in service. See Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In cases where the Veteran seeks service connection for a congenital condition, the Board must indicate whether the condition is a disease or defect and discuss the presumption of soundness. Quirin, 22 Vet. App. at 394-97. It follows that in such cases where a congenital condition is at issue, a VA medical opinion may be needed to determine whether the condition is a disease or defect, whether the presumption of soundness has been rebutted, and if so whether there was aggravation during service. Id. at 395. In January 2008, the Veteran was provided a VA examination to address whether the Veteran's current low back condition was aggravated beyond its natural progression during service. The examiner noted a current diagnosis of lumbar DDD. The examiner also noted that an October 2006 MRI shows the presence of congenital left lateral recess stenosis. However, the examiner stated that the issue of aggravation cannot be resolved without resorting to mere speculation. The examiner also did not address whether the Veteran's congenital spinal stenosis amounted to a defect or a disease. Accordingly, the examination is inadequate, and a new examination is necessary on remand. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Monzingo v. Shinseki, 26 Vet. App. 97, 105-06 (2012) (citing D’Aries v. Peake, 22 Vet. App. 97, 104 (2008)). 2. Schedule an examination with an appropriate VA examiner regarding the nature and etiology of the Veteran's low back condition. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The examiner is must address the following: (a.) Identify all currently diagnosed low back conditions, to include DDD and lumbar spine congenital stenosis. (b.) Is any diagnosed low back condition a congenital defect or disease? The examiner is informed that for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (c.) For any diagnosed low back condition that is a congenital defect, is it at least as likely as not that there was a superimposed injury or disease in service that resulted in additional back disability. (d.) For any diagnosed low back condition that is a congenital disease, is it clear and unmistakable that the condition preexisted the Veteran's military service? The examiner should identify the specific evidence relied upon in answering this question. (e.) If so, is it clear and unmistakable that the preexisting low back disease WAS NOT aggravated (i.e., permanently worsened) during the Veteran's active duty service or that any increase in disability was due to the natural progression of the disease? (f.) For any diagnosed low back condition that is not a congenital defect or disease, is it at least as likely as not that the low back disability was incurred in service or is otherwise causally related to his active service or any incident therein? The examiner’s attention is drawn to the following: * In the January 2021 Board hearing, the Veteran testified that he was born with scoliosis and an extra vertebra in his spine. The Veteran testified that he learned of his spinal condition prior to service when he was injured while playing football. He testified that an x-ray subsequent to the reported pre-service football injury showed a curvature in his back along with an extra vertebra. As noted above, he stated that he provided a letter at service induction pertaining to his pre-service condition. However, service records do not contain documentation of the reported letter. * The July 1965 entrance examination does not indicate any back condition. In fact, the physician’s summary indicates “no significant injures.” * STRs do not indicate treatment in-service for a back condition. * The August 1967 report of medical history at separation indicates that the Veteran denied then having or ever having any back symptoms other than wearing a back brace in 1962 related to a back injury that occurred while playing football prior to service entry. In the physician’s summary, it was noted that no residuals of the reported back injury existed prior to service. * A July 1968 hospital admission note indicates treatment after an automobile accident. The record indicates that the Veteran suffered very little injuries. * Post-service, the Veteran worked in logging and for many years as a truck driver. * An October 2006 private medical record indicates that MRI shows the presence of congenital left lateral recess stenosis. * In a November 2006 medical note, Dr. J.R.G., stated that prior to service induction, an x-ray conducted by, Dr. K., indicated that the Veteran’s lumbar spine showed transitional vertebrae and scoliosis. Dr. J.R.G., stated that Dr. K, advised against service for the Veteran and believed that aggressive physical work in-service worsened his back condition. * In a January 2008 VA examination, the examiner was asked to address whether the Veteran’s service aggravated his pre-existing back condition. The examiner noted a current diagnosis of lumbar DDD. The examiner also noted that an October 2006 MRI shows the presence of congenital left lateral recess stenosis. However, the examiner stated that the issue of aggravation cannot be resolved without resorting to mere speculation. * In a December 2014 letter, E.M., a former fellow servicemember who attended Basic Training and AIT with the Veteran, stated that soon after meeting the Veteran, the Veteran had serious back related problems. E.M. reported that he would manipulate the Veteran’s back to help alleviate pain. * In a December 2019 letter, a family member and a physician assistant, stated that although the Veteran is not in her care, she has observed the Veteran over the past 15 years. She opined that the Veteran’s service likely contributed to the progression of his back problems. * In a July 2020 letter, Dr. Z.B., the Veteran’s treating physician, stated that he has been treating the Veteran since 2016. He stated that the Veteran has reported chronic back pain for the last 60 years. Dr. Z.B., opined that the Veteran’s service likely contributed to his chronic back pain. * In a November 2020 private medical opinion, Dr. D.A., stated that the Veteran’s medical records and pertinent medical literature were reviewed, along with an interview with the Veteran. Dr. D.A. opined that it is more likely than not that the Veteran’s back condition is more likely than not related to the Veteran’s service. Dr. D.A, stated that the Veteran’s service clearly exacerbated his congenital back disease. * In the January 2021 Board hearing, the Veteran testified that he first began experiencing back problems in-service in basic training. He stated that he tweaked it every once in a while, which made movement very difficult. He testified that a fellow servicemember, E.M., would frequently help him manipulate his back such as to reduce his pain. Although, the Veteran testified that his back was very painful in basic training, he stated that he did not seek treatment for fear of being recycled through basic training. The Veteran testified that during his service in Vietnam, he injured his back when he dove to the ground to avoid being hit by incoming fire. He stated that he went to sick call, but before he was seen, he left when he saw helicopters and ambulances that were arriving with severely wounded servicemembers. He indicated that, in comparison, he was not hurt, so he turned away. The Veteran also testified to another incident in-service when he fell down a flight of stairs. He stated that he was taken to the hospital in an ambulance. However, he stated that he was told that he was fine before he was let go. The Veteran indicated that his back condition was tolerable prior service, but that his condition significantly worsened during his service. The Veteran’s spouse testified that she has known the Veteran for her entire life and that they were married in 1969. She stated that shortly after discharge from service, the Veteran had back pain and wore a back brace. She testified that it was obvious that the Veteran had a back condition after service. The Veteran stated that he sought medical treatment for his back shortly after his discharge from service, although he could not recall exactly when. The Veteran testified that he retired in approximately 2006 due to his back condition. * In a February 2021 letter, the Veteran’s brother stated that after discharge, he witnessed that the Veteran experienced back pain. A thorough explanation must be provided for the opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, s/he should expressly indicate this and provide supporting rationale as to why the opinions cannot be made without resorting to speculation. The examiner is advised that by law, the mere statement that the claims folder was reviewed and/or the examiner has expertise is not sufficient to find the examination/opinion sufficient. 3. Following the review and any additional development deemed necessary, re-adjudicate the claim. Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case (SSOC) and forward the claim to the Board for adjudication. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 4. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Timothy T. Emmart 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.