Citation Nr: 21027856 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 12-27 267A DATE: May 7, 2021 ORDER Entitlement to service connection for spina bifida occulta is denied. FINDING OF FACT The spina bifida occulta noted in November 1974 is a congenital defect that was not subject to a superimposed disease or injury during the Veteran's period of service. CONCLUSION OF LAW The criteria for entitlement to service connection for spina bifida occulta have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Marine Corps from November 1972 until December 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. All requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). The matter was remanded by the Board in October 2016, July 2018, and September 2020. There has been compliance with the prior remand directives to obtain an adequate medical opinion. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has 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. Entitlement to service connection for spina bifida occulta is denied. The Veteran seeks entitlement to service connection for spina bifida occulta. Service connection is already in effect for lumbar herniated nucleus pulposus and lumbar stenosis with sciatica. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The evidence establishes that spina bifida occulta is a congenital defect. See November 2020 addendum opinion. Defects are defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. Service connection is generally precluded by regulation for such defects because they are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303 (c), 4.9, 4.127. VAOPGCPREC 82-90. However, a congenital defect can still be subject to superimposed disease or injury. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. The issue before the Board is whether the previously diagnosed spina bifida occulta was subject to a superimposed injury during the Veteran's period of service. The STRs show the Veteran complained of back pain in November 1974. The assessment was chronic L-5 strain, and x-rays were reported to have shown spina bifida occulta. The actual x-ray report is not included in the STRs. The Veteran was treated for chronic back pain later in service, with diagnosis of lower lumbar spasm, rule out herniated nucleus pulposus at L4-L5, and lumbosacral strain rule out nerve impingement. See STRs from March 1991 through September 1993. August 2009 private x-rays, June 2011 private x-rays, and October 2013 private MRI studies do not document the presence of spina bifida occulta. Most recently, the matter was remanded to obtain an adequate medical opinion. The examiner was requested to clarify prior conflicting and inadequate VA opinions and specifically address whether spina bifida occulta was subject to a superimposed injury during the Veteran's period of service. VA obtained an addendum opinion in November 2020. The examiner explained that spina bifida was a congenital defect noted on x-ray in 1974 as an incidental finding. There was no further mention of spina bifida occulta in the Veteran's records, including later imaging studies done in 2008 and 2013. Further, there was no evidence the above conditions were influenced by spina bifida or an exacerbation of spina bifida. The examiner explained that the 2013 MRI was far more sensitive and specific than a 1974 x-ray and the prior diagnosis of spina bifida could have been in error. Based on the lack of further evidence of spina bifida, the examiner explained the 1974 finding could have been an "over-read," and noted the actual x-ray report was not included. If spinal bifida occulta was actually present, there was no evidence of change or aggravation; and the currently diagnosed spine conditions arose independently of any underlying spina bifida occulta. Thus, there was no superimposition of conditions on the spina bifida occulta itself. The preponderance of the evidence demonstrates that the spina bifida occulta noted in November 1974 is a congenital defect that was not subject to a superimposed injury or disease during the Veteran's period of service. The November 2020 addendum opinion shows that the prior diagnosis of spina bifida occulta may have been in error, but in any event, spina bifida occulta was not subject to a superimposed injury as there was no change or aggravation in that condition as evidenced by later, more accurate imaging studies. The 2020 opinion is supported by a fully articulated rationale that addressed the relevant evidence, and the opinion is supported by the available medical records. As a result, the opinion is adequate and afforded significant probative weight. To the extent the Veteran and his representative maintain that spina bifida occulta was subject to a superimposed injury, laypersons do not possess the medical expertise necessary to provide an opinion on the progression of a congenital defect as opposed to the development of other internal spinal conditions. Thus, preponderance of the evidence is against the Veteran's claim and there is no reasonable doubt to be resolved. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For these reasons, the claim is denied. K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Smith, 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.