Citation Nr: 21022469 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 13-06 152A DATE: April 15, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for cervical spondylosis at C6-C7 is denied. Entitlement to a separate 40 percent rating, but no more, for right upper extremity radiculopathy from November 10, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a separate 30 percent rating, but no more, for left upper extremity radiculopathy from November 10, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. Service connection for a right hand disability is denied. REMANDED Service connection for bilateral hearing loss is remanded. Service connection for glaucoma is remanded. Service connection for a low back disability is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s cervical spondylosis at C6-C7 was manifested as forward flexion to 35 degrees, a combined cervical spine range of motion of 190 degrees, and guarding and localized tenderness not resulting in abnormal gait or abnormal spinal contour, but not forward flexion of 30 degrees or less, a combined cervical spine range of motion of 170 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or intervertebral disc syndrome (IVDS). 2. Throughout the period on appeal, the Veteran’s right upper extremity radiculopathy manifests as moderate incomplete paralysis of the upper radicular group of the major extremity, but not severe incomplete paralysis. 3. Throughout the period on appeal, the Veteran’s left upper extremity radiculopathy manifests as moderate incomplete paralysis of the upper radicular group of the minor extremity, but not severe incomplete paralysis. 4. Other than right upper extremity radiculopathy, the preponderance of the evidence is against finding that the Veteran has a right hand disability that is related to active duty service or events therein. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for cervical spondylosis at C6-C7 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Code 5239 (2020). 2. With resolution of reasonable doubt in the Veteran’s favor, November 10, 2010, the criteria for a rating of 40 percent, but no higher, for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8510 (2020). 3. With resolution of reasonable doubt in the Veteran’s favor, November 10, 2010, the criteria for a rating of 30 percent, but no higher, for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.124a, Diagnostic Code 8520. 4. The criteria for establishing service connection for a right hand disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from October 1979 to August 1993, including service in the Persian Gulf War. These matters are on appeal from a July 2011 rating decision. Some of the Veteran’s service treatment records, including but not limited to the separation examination from his period of active duty service, appear to have been lost.  The Agency of Original Jurisdiction (AOJ)  has documented its efforts to locate the complete records.  In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable.  See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  Because of the missing records, the analysis below has been undertaken with this heightened duty in mind.  The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board’s obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran.  See Russo v. Brown, 9 Vet. App. 46 (1996).  These claims were remanded by the Board in March 2015 to inform the Veteran of VA’s duties to notify and assist him with regard to his cervical spine claim, to attempt to obtain additional records, and to afford the Veteran additional VA examinations with regard to his glaucoma and left upper extremity radiculopathy claims.  The AOJ has done so. The Board remanded these claims again in August 2019 to attempt to obtain additional records, to afford the Veteran an additional medical opinion with regard to his low back disability claim, and for the AOJ to consider additional evidence in the first instance. The AOJ has done so. The January 2016 VA examination is adequate with regard to the Veteran’s cervical spine and radiculopathy claims because it was based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they described his cervical spine and radiculopathy symptoms in detail sufficient to allow the Board to make fully informed determinations.  There was therefore substantial compliance with the remand directives with regard to the issues being decided below.  See Stegall v. West, 11 Vet. App. 268 (1998).    Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Cervical Spondylosis at C6-C7 2. Right Upper Extremity Radiculopathy 3. Left Upper Extremity Radiculopathy The Veteran contends that his cervical spondylosis at C6-C7 warrants a rating higher than that currently assigned. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5239, for spondylolisthesis or segmental instability, with a 10 percent rating on and after November 10, 2010. The full period of service connection is on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. “Staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Diagnostic Code 5239 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). Under the General Formula, a 10 percent rating is warranted for: forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; a combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for: forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; a combined range of motion of the cervical spine not greater than 170 degrees; or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the cervical spine is from zero to 45 degrees, extension is from zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are from zero to 80 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. Id. In addition, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula) allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). Incapacitating episodes having a total duration of at least two weeks but less than four weeks warrant a 20 percent rating, a total duration of at least four weeks but less than six weeks warrants a 40 percent rating, and a total duration of at least six weeks warrants a 60 percent rating. Id. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. As of February 7, 2021, under the amended criteria, Diagnostic Code 5243 was revised to reflect that the diagnostic code should be assigned only when the there is disc herniation with compression and/or irritation of the adjacent nerve root. Considering both the pre- and post-February 7, 2021 Diagnostic Code 5243, the medical and lay evidence of record does not show that a rating under Diagnostic Code 5243 for IVDS is warranted during the period on appeal. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Because the General Formula specifies that any associated objective neurologic abnormalities caused by the Veteran’s cervical spine disability are to be evaluated separately under an appropriate Diagnostic Code, the Board finds that it must consider the Veteran’s left upper extremity radicular pain claim and, to the extent it refers to neurological symptoms, his right hand disability claim in connection with the cervical spine claim. See 38 C.F.R. § 4.71a at Note (1). The Veteran has submitted a November 2010 examination report by a private chiropractor. The Veteran reported constant and increasing pain of the cervicothoracic junction with constant and increasing radicular pain along the distribution of the left radial nerve to the distal left upper extremity. On examination, cervical motion was reported as 50 degrees of forward flexion, 30 degrees of extension, 25 degrees of right and left lateral flexion, and 70 degrees of right and left rotation. Foraminal compression was markedly positive for increased cervicothoracic pain on the left and increased left radicular pain. Deep tendon reflexes were intact. There was “beyond a proportionate weakness in his left hand as compared to his dominant right.” The chiropractor diagnosed post traumatic residual discopathy. The chiropractor indicated that only the left upper extremity was tested for radiculopathy. In a January 2011 statement, the Veteran reported “scarring and nerve damage” in his right hand. The Veteran is right-handed. The Veteran was afforded a VA examination in January 2011. The Veteran reported that his neck pain radiated to his left arm. He also reported constant pain in his cervical spine and intermittent pain and weakness in his left arm. He did not report any flare ups or use of any assistive devices. He reported that he was working as a truck driver and had to stop every four to five hours to stretch and take breaks to minimize discomfort in his neck. He also reported that he had lost about 70 days of work in the past twelve months due to neck and back pain but that he had no doctor-ordered periods of incapacitation in the past twelve months. On examination, there were no paravertebral spasms. There was positive point tenderness of the posterior cervical region and associated paraspinous muscles. Cervical motion was reported as 45 degrees of forward flexion, 20 degrees of extension, 35 degrees of right and left lateral flexion, and 60 degrees of right and left lateral rotation, with reports of pain throughout. With repeated motion, there was a subjective report of increased pain, but no objective evidence of pain, weakness, fatigability, lack of endurance, or incoordination. There was no additional loss of function with repetitive motion. X-rays showed notable cervical spondylosis at C6-C7. The clinician did not opine as to the presence of radiculopathy and did not provide any examination findings with regard to radiculopathy. The Veteran was afforded an additional VA examination in January 2016. The clinician diagnosed degenerative arthritis of the cervical spine. The Veteran reported flare ups of neck pain with the neck in an erect position, alleviated by keeping the neck at an angle. On examination, cervical motion was reported as 35 degrees of forward flexion, 20 degrees of extension, 25 degrees of right and left lateral flexion, 45 degrees of right lateral rotation, and 40 degrees of left lateral rotation. The range of motion caused functional loss in the form of increased pain with movement. Pain was noted on examination but did not cause functional loss. On repetition, there was no additional loss of function or range of motion. The clinician found that the examination was medically consistent with the Veteran’s statements describing functional loss with repetition over time and flare ups and that pain and weakness would significantly limit functional ability under these circumstances, but that this could not be described in terms of range of motion because the functional loss was in the form of increased pain with motion as opposed to a loss of range of motion. There was guarding and localized tenderness, but not resulting in abnormal gait or spinal contour, and there was no muscle spasm. The clinician found no additional contributing factors of disability. Muscle strength was normal and there was no muscle atrophy. Reflexes were normal. Sensory examination was normal. The Veteran reported moderate constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness in both upper extremities. The Veteran did not have any other signs or symptoms of radiculopathy. The clinician found that the Veteran’s radiculopathy affected the upper radicular groups of both upper extremities and that the overall severity of radiculopathy was mild on the right and moderate on the left. Despite these findings, the clinician concluded that there were no objective findings to support a diagnosis of radiculopathy. There was no ankylosis. There was no IVDS. The clinician found that the Veteran’s cervical spine disability would cause inability to rotate the cervical spine without increased pain and inability to lift more than 25 pounds. Based on the evidence described above, the Board finds that the Veteran’s cervical spondylosis at C6-C7 does not warrant a rating in excess of 10 percent at any point during the period on appeal. Of the range of motion findings during the period on appeal, the most favorable to the Veteran are forward flexion of 35 degrees and a combined range of motion of the cervical spine of 190 degrees, and guarding and tenderness not resulting in an abnormal gait or abnormal spinal contour, all of which warrant a 10 percent rating under the General Formula. The preponderance of the evidence described above however, does not show that the Veteran’s cervical spine disability warrants a rating in excess of 10 percent during the period on appeal. No examiner or treatment provider has found that the forward flexion of the Veteran’s cervical spine was 30 degrees or less, that the combined range of motion of the cervical spine was 170 degrees or less, or that the Veteran had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Given the existence of a range of cervical motion, the preponderance of the evidence is against a finding that the Veteran has ankylosis of the cervical spine as defined above. “Ankylosis” is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 92 (33rd ed. 2020). In addition, no examiner or treatment provider has found ankylosis of the entire cervical spine and the Veteran’s symptoms are not analogous to ankylosis of the entire cervical spine as defined above. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his cervical spine disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nothing in those statements is inconsistent with the 10 percent rating currently assigned. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran’s pain causes functional impairment equivalent to the criteria for a rating in excess of 10 percent. Based on the evidence described above, the Board also finds that, affording the Veteran the benefit of the doubt, his bilateral upper extremity radiculopathy was present and warrants a rating of 40 percent for the right upper extremity and 30 percent for the left upper extremity extremity on and after November 10, 2010. 38 C.F.R. § 4.124a, Diagnostic Code 8510 pertains to paralysis of the upper radicular group. Under Diagnostic Code 8510, paralysis of the upper radicular group is rated as follows: complete paralysis (70 percent for the major extremity and 60 percent for the minor extremity); severe incomplete paralysis (50 percent for the major extremity and 40 percent for the minor extremity); moderate incomplete paralysis (40 percent for the major extremity and 30 percent for the minor extremity); and mild incomplete paralysis (20 percent for either extremity). When the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). The only examination of record that provided detailed findings with regard to radiculopathy of both upper extremities was the January 2016 VA examination. Those findings are contradictory; the clinician found that the Veteran did not have radiculopathy but listed the Veteran’s symptoms, identified the affected nerves, and specified the severity to which those nerves were affected. In addition, despite noting the Veteran’s symptoms as identical in each upper extremity, the clinician opined without explanation that the severity was mild on the right and moderate on the left. To give the Veteran the benefit of the doubt, the Board will rely on the examination findings most favorable to the Veteran’s claim and therefore finds that it is at least as likely as not that the Veteran’s cervical spine disability was manifested by bilateral upper extremity radiculopathy of the upper radicular groups of moderate severity throughout the period on appeal. The preponderance of the evidence described above also shows that the Veteran’s bilateral upper extremity radiculopathy does not warrant ratings in excess of 40 percent for the right upper extremity or 30 percent for the left upper extremity during the period on appeal. No examiner or treatment provider found more than moderate incomplete paralysis of either upper radicular group during the period on appeal. The Veteran did not report any of his radicular symptoms as of more than moderate severity. Sensory examination, reflexes, and muscle strength were all normal. This is collectively indicative of incomplete paralysis of no more than moderate severity. The Board has considered the Veteran’s lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his bilateral upper extremity radiculopathy. See Jandreau, 492 F.3d at 1376-77. Nothing in those statements is consistent with a finding of more than moderate incomplete paralysis. The Board has considered the other Diagnostic Codes that apply to impairment of nerves of the upper extremities, but none of these provide for a rating for moderate incomplete paralysis greater than 40 percent in the major extremity and 30 percent in the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Codes 8521-8530. Any associated objective neurologic abnormalities caused by the Veteran’s cervical spine disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). Other than the radiculopathy of the right and left upper extremities for which separate ratings were granted above, there is no other probative medical or lay evidence of neurologic abnormalities caused by the Veteran’s cervical spine disability. 4. Right Hand Disability The Veteran contends that he has “scarring and nerve damage” in his right hand due to his active duty service. Because the Board has already granted a compensable rating for right upper extremity radiculopathy above, the Board’s analysis will focus on the Veteran’s contentions regarding scarring. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that 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). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. Thus, the threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran had the disability for which service connection is sought at any time during the period on appeal. In the absence of proof of a disability during that period, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The benefit of the doubt rule provides that a veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in a claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the claim that the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s service treatment records do not note a report of or treatment for a right hand injury but, as stated above, those records may be incomplete. The Veteran was afforded a VA examination in May 2017. The Veteran reported that he sustained a third-degree burn to his hand while serving in the Persian Gulf War and that his symptoms included intermittent tightness. (As stated above, a compensable rating has already been granted for the Veteran’s neurological symptoms.) On examination, the clinician found no residuals of a burn and specifically found no scarring. The clinician added that the skin of the Veteran’s right hand was identical to that of his left hand. The Veteran is competent to report on matters observed or within his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran would be competent to identify scars and ascribe them to past injuries but, to the extent that the Veteran has contended he has a scar or irregularity of his right hand, that contention is outweighed by the VA clinician’s finding that no such scar or deformity exists. Because the preponderance of the evidence is thus against finding that the Veteran has had a scar of the right hand during the period on appeal, entitlement to service connection for a right hand disability is denied. REASONS FOR REMAND 1. Service connection for bilateral hearing loss is remanded. The Veteran was last afforded a VA examination for hearing loss in February 2011. At that time, the clinician opined that the Veteran’s hearing loss was as likely as not the result of acoustic trauma during his active duty service, but the loss did not meet the thresholds to be considered disabling for VA purposes. 38 C.F.R. § 3.385 (2020). However, that examination was more than ten years ago. The record thus raises the possibility that the Veteran’s bilateral hearing loss could now be more severe than the February 2011 examination report reflects. “Where the record does not adequately reveal the current state of the claimant’s disability, a VA examination must be conducted.” Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A remand for a new examination is thus warranted. 2. Service connection for glaucoma is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in January 2016. The clinician’s opinion that it was less likely than not that the Veteran’s glaucoma was less likely than not incurred in or caused by active duty service was based on findings that primary open angle glaucoma is “an inherited condition” and the Veteran has a family history of it. 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. In sum, 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. The January 2016 VA medical opinion did not address the questions pertinent to service connection for congenital disabilities. For these reasons, a remand is warranted to obtain an additional medical opinion. 3. Service connection for a low back disability is remanded. Every veteran is presumed to have been in sound condition at entry into service except as to defects, infirmities, or disabilities noted at the time of such entry, or where clear and unmistakable evidence demonstrates that the injury or disease existed before entry and was not aggravated by such service. 38 U.S.C. § 1111 (2012). If a condition is noted on an entrance examination report, the presumption of soundness never attaches - the only benefits that can be awarded are for aggravation of such condition by application of 38 U.S.C. § 1153 (2012) and 38 C.F.R. § 3.306 (2019). Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). During the Veteran’s September 1979 entrance examination, the examiner noted right scoliosis, not considered disabling. Because his scoliosis was noted on entry into service, it is considered a preexisting condition. If a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C. § 1153 (2012) and 38 C.F.R. § 3.306 (2020) apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). Service connection is warranted if the preexisting disorder was aggravated by a veteran’s active service. A preexisting injury or disease will be presumed to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability was due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The Veteran was afforded a VA examination in January 2011. The clinician diagnosed osteoarthritis of the lumbar spine and opined that it was most likely caused by or secondary to his scoliosis but did not address the relevant questions with regard to aggravation. The Veteran was afforded an additional VA examination in January 2020; the clinician opined that the Veteran’s scoliosis was not aggravated beyond its natural progression by active duty service but based this opinion entirely on silence in treatment records, without addressing the Veteran’s lay report of an injury during active duty service. This is an inadequate rationale. For this reason, a remand is warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his bilateral hearing loss. The entire claims file and a copy of this remand must be made available to the clinician for review. The clinician must provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss began during active service, is related to an incident of service, or began within one year after discharge from active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the February 2011 VA examination report finding that the Veteran’s hearing loss was as likely as not the result of acoustic trauma in the military. The rationale for any opinion expressed should be provided. Note that the Veteran’s service treatment records may be incomplete and an absence of hearing loss in service cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran’s glaucoma.  The entire claims file and a copy of this remand must be made available to the clinician for review.  A new examination is only required if deemed necessary by the clinician.  The clinician must provide opinions as to the following: a. As a threshold question, whether it is at least as likely as not (a probability of 50 percent or greater) that the Veteran’s glaucoma is congenital. The Board must ask this question because the January 2016 VA medical opinion found that the Veteran’s primary open angle glaucoma was an inherited condition. If, and only if, the clinician finds that the Veteran’s glaucoma is congenital, the clinician should also provide opinions as to the following: i) Whether the Veteran’s glaucoma is a developmental defect or a developmental disease. For VA purposes, a defect differs from a disease in that a defect is “more or less stationary in nature,” while a disease is “capable of improving or deteriorating.” ii) If the clinician finds that the Veteran’s glaucoma is a developmental or congenital defect, the clinician must provide an opinion as to whether it is at least as likely as not that the Veteran sustained any superimposed disease or injury on such defect during his active duty service. iii) If the clinician finds that the Veteran’s glaucoma is a developmental or congenital disease, the clinician must provide an opinion as to whether it is at least as likely as not that it was incurred in or aggravated beyond the normal course of the condition by active duty service. b. Whether it is as likely as not (a probability of 50 percent or greater) that any current glaucoma had its origin in service or is related to the Veteran’s active service. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. A February 1988 service treatment record noting a gasoline spill to the Veteran’s right eye. b. An April 1997 examination report noting increased intraocular pressure. c. A March 2007 VA treatment record noting a history of glaucoma. d. The November 2010 private examination report, noting a diagnosis of glaucoma in 1997. The rationale for any opinion expressed should be provided.  Note that Veteran’s service treatment records may be incomplete and the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding.  If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible.  3. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of the Veteran’s low back disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is advised that the Veteran’s scoliosis was noted on his September 1979 entrance examination report. The clinician must provide opinions as to the following: a. whether the Veteran’s low back disability increased in severity during the Veteran’s active duty service and, if so, b. whether the increase in severity was clearly and unmistakably due to the natural progress of the disease. Although an independent review of the claims file is required, the Board calls the clinician’s attention to the following: a. The January 2011 VA examination report, including the Veteran’s report of a low back injury during active duty service and the clinician’s opinion that the Veteran’s scoliosis was the most likely cause of his current lumbar osteoarthritis. b. The May 2017 VA examination report, including the Veteran’s report of a 1986 motor vehicle accident. The rationale for any opinion expressed should be provided. Note that the Veteran’s service treatment records may be incomplete and the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) (Continued on the next page)   5. Then, readjudicate the claims. 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. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ryan Frank, 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.