Citation Nr: 21021736 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 04-24 703 DATE: April 13, 2021 ISSUE Entitlement to service connection for spina bifida. ORDER Entitlement to service connection for spina bifida is denied. FINDING OF FACT The Veteran's spina bifida is a congenital defect that pre-existed military service and was not subject to a superimposed disease or injury during service, apart from that for which the Veteran is already service connected. CONCLUSION OF LAW The criteria to establish service connection for spina bifida have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1967 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office. By way of background, in a March 2006 decision, the Board denied the claim for service connection for a low back disability, to include spina bifida. In a September 2008 memorandum decision, the Court of Appeals for Veterans Claims (CAVC) vacated and remanded the Board’s decision. See September 30, 2008 Memorandum decision. After remanding again in May 2010, April 2015, and May 2016, the Board again rendered a decision denying the Veteran’s claim in November 2017. The parties then filed a JMR to vacate and remand the November 2017 Board decision, and in November 2018, CAVC granted the motion and remanded the claim back to the Board. See November 15, 2018 CAVC Order. In a May 2019 decision, the Board remanded the Veteran’s claim for additional development, specifically for the purpose of obtaining a new VA examination to address the etiology of the Veteran’s low back disability and spina bifida. In a subsequent January 2021 rating decision, the Veteran, in pertinent part was granted service connection for a low back disability, namely lumbosacral spine degenerative arthritis with degenerative disc disease, strain, spondylolisthesis & intervertebral disc syndrome, status post lumbosacral fusion w disc replacement surgical treatment, also addressed as chronic/ back injury & low back disability. The Veteran was also service connected for bilateral lower extremity radiculopathy. See January 30, 2021 rating decision. The February 2021 supplemental statement of the case denied entitlement to service connection for spina bifida. The Veteran’s claim of service connection for spina bifida has returned to the Board for appellate review. The Board finds that there has been substantial compliance with the May 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence pertinent to the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all contents of the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Board’s review will also include a discussion of the Veteran’s low back disability when pertinent to the issue on appeal. Entitlement to service connection for spina bifida. It is the Veteran’s assertion that his spina bifida was caused or aggravated by two specific in-service injuries: a 1967 incident where he was thrown from a truck in infantry training, and a 1969 incident where the vehicle he was driving overturned. See March 18, 2004, Notice of Disagreement (NOD), pgs. 1-2; See also, November 20, 2004, Statement in Support of Claim, VA Form 21-4138. The Board finds his assertions credible as to the fact that he was thrown from a truck in infantry training and also involved in a jeep rollover. The Veteran stated he did not know about his spina bifida until x-rays taken following a work-related injury. See July 8, 2003, VA Form 21-526; March 8, 2004, NOD, pg. 1; See also January 18, 2012 VA Back Conditions examination, pgs. 2-3 (Medical History). Notwithstanding, for reasons that will be discussed below, the Board finds that the Veteran’s spina bifida is a congenital defect that pre-existed military service and was not subject to superimposed disease or injury during service, apart from that for which the Veteran is already service connected; hence, service connection for spina bifida is not warranted. A veteran is entitled to the Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). As an initial matter, spina bifida was not noted on the Veteran's May 29, 1967 entrance examination. Crowe v. Brown, 7 Vet. App. 238, 245 (1994). However, 38 C.F.R. § 3.303(c) provides that there are medical principles so universally recognized as to constitute fact (clear and unmistakable proof), and when in accordance with these principles existence of a disability prior to service is established, no additional or confirmatory evidence is necessary. Consequently, with notation or discovery during service of such residual conditions (such as congenital malformations, etc.) with no evidence of the pertinent antecedent active disease or injury during service the conclusion must be that they preexisted service. Congenital or developmental defects, as such are not diseases or injuries within the meaning of applicable legislation. Spina bifida The Board notes that spina bifida is a congenital defect. Congenital or developmental defects automatically rebut the presumption of soundness and therefore are considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (finding that the Secretary's exclusion of personality disorders from diseases or injuries as a congenital defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). A congenital "defect" is not a disability for VA compensation purposes. See 38 C.F.R. § 3.303 (c). The term "defect," viewed in the context of 38 C.F.R. Section 3.303 (c), is a structural or inherent abnormality or condition which is more or less stationary in nature. As such, service connection for the Veteran's spina bifida, whether on a direct basis or by aggravation, is prohibited. 61 Fed. Reg. 52, 695. (Oct. 8, 1996). However, a disability that is superimposed upon the Veteran's spina bifida may be service connected. See 38 C.F.R. §§ 3.310(a), 4.127; VAOPGCPREC 82-90 (July 18, 1990) (noting that congenital and developmental defects can be subject to superimposed disease or injury such that service connection may be granted where the superimposed disease or injury occurs during service). Discussion The Board notes that the Veteran has been afforded VA examinations and medical opinions regarding the etiology of his spina bifida in January 2012, July 2015, August 2017 (Addendum Opinion) and January 2021. The Board found the examinations in January 2012 and July 2015, inadequate for adjudication purposes. As referenced above, the Court vacated the Board’s November 2017 decision, which relied on the August 2017 Addendum Medical Opinion. Pursuant to the Board’s May 2019 remand directives, the Veteran was afforded a January 2021 Central Nervous System (CNS) and Neuromuscular Disease Examination and Medical Opinion. The January 2021 VA examiner confirmed the Veteran’s central nervous system diagnosis of spina bifida. See January 11, 2021 Central Nervous System and Neuromuscular Disease Examination, pgs. 1 & 4. (The Board notes that the same VA examiner conducted a January 11, 2021 VA Back Conditions Examination with respect to this Veteran’s claim.) The January 2021 VA examiner acknowledged that all relevant records pertaining to the Veteran’s conditions have been reviewed. After review of all available records, the examiner concluded that the Veteran’s Spina bifida is a congenital defect. The January 2021 VA medical opinion found it is less likely as not that the Veteran’s Spina bifida was incurred in service. See January 11, 2021 Medical Opinion, pgs. 2-4. The examiner explained that “Spina bifida is a congenital medical condition. It is not a condition that is caused by any mechanical injuries or trauma, but a medically known anomaly that happens at birth.” Id. at 4. The examiner determined that the Veteran had two superimposed back conditions: lumbosacral strain and spondylolistheses. Id. The Board observes that the Veteran is already granted service connection for lumbosacral spine degenerative arthritis with degenerative disc disease, strain, spondylolisthesis & intervertebral disc syndrome. The Veteran is also service connected for bilateral lower extremity radiculopathy. See January 30, 2021 rating decision. Returning to the January 2021 Medical Opinion: The examiner reasoned that “although there are no service treatment records to verify the claimed back injury due to a rollover motor vehicle collision, the Veteran's DD 214 does reflect active Vietnam combat service. Due to his combat service, the Veteran's lay statement is accepted as evidentiary support of the claim. Lumbosacral strain and spondylolisthesis are the most likely resultant injuries due to a blunt force traumatic mechanism such as a rollover motor vehicle collision. Therefore, the Veteran's claimed spondylolisthesis and lumbosacral sprain were at least as likely as not incurred in service. The bilateral lower extremity radiculopathy is due to nerve root impingement which results from the veteran's spondylolisthesis.” See January 11, 2021 Medical Opinion, pg. 4. Analysis The Board finds the January 2021 Central Nervous System and Neuromuscular Disease Examination and subsequent medical opinion highly probative regarding the etiology of this Veteran’s spina bifida because the examiner acknowledged review of all the pertinent evidence of record, including his service treatment records, post-service medical records and diagnostic testing and considered the Veteran’s lay statement regarding the etiology of his inservice injury and disability. It is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes probative value to a medical opinion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Additionally, the Board observes that the medical opinion was based on the Veteran’s prior medical history and examinations. The examiner described the Veteran’s disability in sufficient detail to allow the Board to make a fully informed decision about this Veterans claim. With respect to this Veteran’s spina bifida diagnosis, and pursuant to the Board’s May 2019 remand directives, the January 2021 VA examiner made a distinction between a congenital or developmental defect and a disease or injury. A medical opinion is adequate when it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Barr v. Nicholson, 21 Vet App. at 311 (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994); and Green v. Derwinski, 1 Vet. App. 121, 124 (1991). As such, the Board finds the January 2021 Central Nervous System and Neuromuscular Disease Examination and subsequent medical opinion adequate for adjudication purposes. Returning to the VA examination: The January 2021 examiner explained that the Veteran’s “spina bifida was a congenital defect and that this is not a condition that is caused by any mechanical injuries or trauma, but a medically known anomaly that happens at birth.” See January 11, 2021 Medical Opinion, pgs. 2-4. The Board notes that congenital or developmental defects automatically rebut the presumption of soundness and therefore are considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (finding that the Secretary's exclusion of personality disorders from diseases or injuries as a congenital defect, such that the presumption of soundness does not apply, to be a valid exercise of the authority granted to the Secretary). The January 2021 examiner further explained that the Veteran’s lumbosacral strain and spondylolisthesis are the most likely resultant injuries due to a blunt force traumatic mechanism such as a rollover motor vehicle collision. See January 11, 2021 Medical Opinion, pg. 4-5. The January 2021 VA medical opinion found it is less likely as not that the Veteran’s spina bifida was incurred in service. Id. at 2. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After a review of all of the lay and medical evidence, the Board finds that service connection for spina bifida is not warranted. The Board finds the January 2021 VA See January 11, 2021 Central Nervous System and Neuromuscular Disease Examination and Medical Opinion probative as to the etiology of this Veteran’s spina bifida. This January 2021Central Nervous System and Neuromuscular Disease Examination and Medical Opinion concluded that the congenital spina bifida defect was not subject to a superimposed disability during service (outside of those for which the Veteran is already service connected: lumbosacral strain and spondylosis). See January 2021 Medical Opinion, pgs. 4-5. The January 2021 VA examiner explained that the Veteran lumbosacral strain and spondylosis are related to his in-service rollover motor vehicle collision. Further, the examiner explained that the Veteran’s bilateral lower extremity radiculopathy is due to nerve root impingement which results from the Veteran's spondylolisthesis.” Id. at 3. To the extent that the Veteran and his representative have opined as to the presence of a superimposed injury or disease during service, apart from those for which the Veteran is already service connected, neither are shown to have the education, training, or experience to competently do so. Rather, this involves medically complex issues, and a competent opinion on the matter requires knowledge of the musculoskeletal system, congenital issues, and the ability to read diagnostic imaging such as X-rays. Thus, while the Veteran’s assertions regarding his in-service injury (i.e., rollover motor vehicle collision) have been found to be credible, as noted above in this decision, his opinion regarding the etiology of his spina bifida, or on the distinction between a congenital defect and a congenital disease, does not rise to the level of a competent medical opinion. For these reasons, the Board finds the Veteran’s statements regarding the etiology of his spina bifida unpersuasive. The Board also observes that the Veteran’s lay statements regarding his in-service injury and observable symptoms were considered by the examiner in formulating the January 2021 VA Central Nervous System medical opinion. See January 2021 Central Nervous System and Neuromuscular Disease Examination, pgs. 5-9; See also, January 2021 Medical Opinion, pgs. 2-3. It follows that the Board affords the competent and probative January 2021Central Nervous System and Neuromuscular Disease Examination and Medical Opinion more weight, and therefore persuasive as to the etiology of this Veteran’s spina bifida. With respect to the Veteran’s contention that his spina bifida was aggravated by service, the Board underscores that a congenital "defect" is not a disability for VA compensation purposes. See 38 C.F.R. § 3.303 (c). The term "defect," viewed in the context of 38 C.F.R. Section 3.303 (c), is a structural or inherent abnormality or condition which is more or less stationary in nature. As such, service connection for the Veteran's spina bifida, whether on a direct basis or by aggravation, is prohibited. 61 Fed. Reg. 52, 695. In conclusion, the Board finds that the preponderance of the competent and probative evidence shows the Veteran's spina bifida is a congenital defect that pre-existed military service. Moreover, this congenital defect was not subject to a superimposed disability by military service, apart from those for which the Veteran is already service connected. Service connection for spina bifida is therefore denied. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. Gilbert, 1 Vet. App. at 57-58; see also 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.