Citation Nr: 21022997 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-17 514 DATE: April 19, 2021 REMANDED Entitlement to service connection for a low back disorder manifested by spasms is remanded. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and depression secondary to the low back disorder, also is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1957 to September 1958. Unfortunately, he died in June 2014, but his surviving spouse since has been substituted as the appellant to process these claims to completion. In October 2015, the appellant and her son testified at a hearing before Veterans Law Judge (VLJ) of the Board, K. A. Banfield. In June 2016, VLJ Banfield issued a Board decision that reopened the claim of service connection for the back disorder and remanded the claims of service connection for back and psychiatric disorders for additional development. In February 2017, VLJ Banfield issued a decision that denied service connection for back and psychiatric disorders for accrued benefits purposes. The Appellant-widow appealed that February 2017 decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). In an October 2017 Joint Motion for Partial Remand (JMPR), the contesting parties asked the Court to vacate the Board’s decision denying these claims and to remand them back to the Board’s for further development and readjudication. The Court granted the JMPR in an Order issued later that same month and returned these claims to the Board. In April 2018, the Appellant and her son testified at a second personal hearing – this time, however, before VLJ John J. Crowley. In February 2019, in accordance with Arneson v. Shinseki, 24 Vet. App. 379 (2011), the Board resultantly notified the Appellant-widow and her attorney that they could have third personal hearing and gave them 30 days in which to request this additional hearing. In August 2019, so well more than 30 days later, the Board remanded the claims back to the Agency of Original Jurisdiction (AOJ) to undertake the additional development that had been agreed to in the JMPR. In December 2019, however, the appellant’s attorney requested a third hearing, and, following an additional remand of these claims in February 2020, the Board acknowledged that request by having another VLJ, Keith W. Allen, preside over a third hearing in January 2021. All three VLJs who have presided over hearings in this appeal consequently have been appointed to a panel in this appeal. Regrettably, another remand is required for still more development of these claims. 1. Entitlement to service connection for a low back disorder manifested by spasms is remanded. The October 2017 JMPR, in substance, cited inadequacy of the September 2016 VA examiner’s opinion as primary reason for asking the Court to vacate the Board’s February 2017 decision denying the claims. Moreover, while the record shows that the appellant’s representative in August 2018 filed a June 2018 private medical opinion, the Board also found that opinion, by itself, inadequate to adjudicate the claim. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Consequently, the Board did not afford this opinion much probative value because, while containing many citations to evidence found in the record, the etiology opinion had little in the way of reasoning connecting the Veteran’s then current low back disability to the medical record cited in the first part of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998) (the failure of the health care provider to provide a basis for his/her opinion goes to the weight or credibility of the evidence). Therefore, in August 2019, the Board remanded this claim to obtain a new etiology opinion. To this end, a new opinion was provided in November 2019; however, like the prior September 2016 VA examiner’s opinion and the June 2018 private medical opinion, the Board declined to afford the November 2019 VA examiner’s etiology opinion probative value because it also had little in the way of reasoning as to why the medical history in the first part of the opinion supported the negative etiology opinions provided in the second part of the opinion. See id. Consequently, the Board remanded the claim again in February 2020 to procure yet another medical opinion. Unfortunately, this medical opinion also is inadequate. According to the February 2020 VA examiner, prior to service, the Veteran had a pre-existing pelvic fracture, and this resulted in a leg length discrepancy and gait change. The examiner also noted the Veteran had a congenital small lumbar spinal canal with spondylostenosis. According to the examiner, these conditions, in combination, put the Veteran at greater risk of back pain during physical exertion, therefore, are not attributable to his service. However, it remains unclear whether these pre-existing conditions were aggravated by his service. As noted by the examiner, the record reflects the Veteran suffered back pain during a march while serving overseas, was put on a physical profile, and was subsequently medically discharged due to this injury. However, also according to the February 2020 examiner, although the Veteran suffered a hip and back injury and subsequent pain in service that ultimately resulted in his separation from service, there is “no medical evidence that the service activity permanently aggravated his back condition or is the cause of the current back condition.” A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preexisting disability underwent an increase in severity during service. However, aggravation may not be conceded where the disability underwent no increase in severity during service. 38 C.F.R. § 3.306(b). In addition, temporary flare-ups during service will not be considered sufficient to establish an increase in severity during service unless the underlying condition, as contrasted with the symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292 (1991). Here, the Veteran was placed on physical profile and ultimately discharged prematurely because of the back injury he sustained during his service. Congenital and developmental defects are not "diseases or injuries" within the meaning of applicable legislation for VA disability compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9. VA's General Counsel has held, however, that service connection may be granted for diseases (though not also defects) of congenital, developmental or familial origin if the evidence as a whole shows that the manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 82-90 (July 18, 1990); 38 C.F.R. §§ 3.303(c), 3.306. Also, according to the VA General Counsel 's opinion, although service connection cannot be granted for a congenital or developmental defect, such a defect can be subject to superimposed disease or injury, and if that superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90.   Thus, to allow for proper legal analysis of an appellant's claim as it pertains to this type of claimed disability, medical clarification is sometimes necessary to determine whether this condition is a congenital or developmental "disease" or "defect." See id; Quirin v. Shinseki, 22 Vet. App. 390, 394-396 (2009). If a "disease", an opinion is required as to whether it was as likely as not aggravated by active military service beyond its natural progression. If instead a "defect", an opinion is required as to whether it was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. For reference, a "disease" is subject to periodic or intermittent improvement or worsening, whereas a "defect" is generally more static in nature. See also O'Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir. 2014) (holding that hereditary conditions capable of change are not "defects."). In summary, according to the February 2020 examiner, the Veteran had a congenital condition resulting in a small lumbar spinal canal with spondylostenosis that, in turn, put him at a higher risk for developing degenerative changes of the lumbar spine (arthritis), including a worsening of his spondylostenosis. Clarification, therefore, is needed as to whether this congenital condition is considered a defect or disease to ascertain whether the condition was aggravated by the Veteran’s service. If found to be a defect, clarification is needed as to whether the defect was as likely as not subject to a superimposed disease or injury during active military service that resulted in disability apart from the congenital or developmental defect. In addition, the Veteran also was noted to have a pre-existing pelvic fracture, and it resulted in his leg length discrepancy and gait change. Clarification, therefore, also is needed concerning whether the Veteran’s pre-existing condition (his pelvic fracture and resulting gait change) was aggravated his service, again, meaning worsened beyond its natural progression. 2. Entitlement to service connection for an acquired psychiatric disorder, including PTSD and depression, also is remanded. This claim is “inextricably intertwined” with the claim concerning the low back disorder because the Veteran alleges that service-connected disability caused or is aggravating this mental disorder being additionally claimed. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together to avoid piecemeal adjudication of claims with common parameters). Accordingly, these claims are REMANDED for the following action: Send the claims file to an appropriate clinician for still more medical comment concerning the nature and etiology of the Veteran’s claimed low back disorder, including especially in terms of its posited relationship with his military service. To this end, the examiner is asked to first specify whether (a) the Veteran’s small lumbar spinal canal with spondylostenosis is a congenital “defect” or “disease”. For reference, a “disease” is subject to periodic or intermittent improvement or worsening, whereas a “defect” is generally more static in nature. If the Veteran’s condition is considered to be a congenital “defect”, an opinion is required as to (b) whether it was as likely as not subject to a superimposed disease or injury (such as a marching injury) during his service that resulted in disability apart from the congenital or developmental defect. The examiner is reminded that this back injury resulted in the Veteran’s medical discharge from service. If the Veteran’s condition, instead, is determined to be a congenital “disease”, an opinion is required as to whether (c) it was as likely as not aggravated by his service – meaning worsened beyond its natural progression. The examiner is also asked to clarify whether (d) the Veteran’s pre-existing pelvic fracture was aggravated by his service, meaning the examiner is specifically asked to consider whether the Veteran’s pelvic fracture and resulting gait change were worsened beyond their natural progression by his service. To assist in making these important determinations, the claims file, including a complete copy of this remand, must be made available to the examiner for review and consideration of the relevant history. When responding, whether favorably or unfavorably, it is essential the examiner provide explanatory rationale – preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kucera, C. B. 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.