Citation Nr: 21028011 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-18 815 DATE: May 10, 2021 ISSUES 1. Entitlement to service connection for a back disability, variously claimed as grade I anterolisthesis of the thoracolumbar spine disability. 2. Entitlement to service connection for a nerve disability of the right lower extremity, as secondary to a back disability. REMANDED Entitlement to service connection for a back disability, variously claimed as grade I anterolisthesis of the thoracolumbar spine disability, is remanded. Entitlement to service connection for a nerve disability of the right lower extremity, as secondary to a back disability, is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1966 to November 1986. This matter is before the Board of Veterans Appeals (Board) on appeal from a May 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Fort Harrison, Montana. Jurisdiction is currently held by the RO in Reno, Nevada. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in April 2019. A copy of the hearing transcript has been associated with the claims file. In May 2019, VA received additional lay statements and medical evidence from the Veteran. The cover letter shows that it is for VLJ review and to continue the appeal. Thus, the Veteran implicitly waived RO consideration of this additional evidence. There has been no prejudice to the Veteran in this regard. We will proceed accordingly. The following month, in June 2019, the Board remanded these two issues reflected on the title page for additional development. The June 2019 Decision and Remand granted service connection for a deviated nasal septum disability. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). As a threshold consideration, there is no entrance examination of record and early Service Treatment Records (STRs) are missing. Others are illegible due to their condition. Available copies were obtained in both 1986 and 2014. The Veteran has acknowledged this, including at the April 2019 hearing. Indeed, with regard to the potentially missing service treatment records, the Board observes that the Court of Appeals for Veterans Claims (Court) has held that 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. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Second, there is some evidence of thoracolumbar spine disability in VA treatment records, private treatment records, and in the Veteran's lay statements. The Board again notes that when service records are unavailable through no fault of the Veteran, VA has a heightened duty to assist. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare, 1 Vet. App. 365, 367. Accordingly, on remand, the VA examiner will be instructed to consider the lay evidence. This is discussed further below. 1. Entitlement to service connection for a back disability, variously claimed as grade I anterolisthesis of the thoracolumbar spine disability is remanded. The Board incorporates its discussion from the sections above by reference. A remand is necessary for additional development. To establish service connection a Veteran must generally show: "(1) the existence of a present disability; (2) 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." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The term "disability," as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Thus, VA regulations specifically prohibit service connection for a congenital defect unless such a defect was subjected to a superimposed disease or injury that created additional disability. See VAOPGCPREC 82-90, 55 Fed. Reg. 45711 (July 18, 1990) (service connection may not be granted for defects of congenital, developmental or familial origin, unless the defect was subject to a superimposed disease or injury); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). Therefore, in the absence of some event or trauma, congenital scoliosis is a constitutional or development abnormality for which compensation benefits may not be authorized. See 38 C.F.R. §§ 3.303 (c), 4.9 (congenital or developmental defects, refractive error of the eye, personality disorders, and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation); see also VAOPGCPREC 82-90. VA's General Counsel issued an opinion interpreting 38 C.F.R. § 3.303 (c) to mean that that service connection may be granted for diseases of congenital, developmental, or familial origin if the evidence as a whole shows that manifestations of the disease in service constituted "aggravation" of the disease within the meaning of applicable VA regulations. VAOPGCPREC 67-90. The VA General Counsel also has issued an opinion that a congenital defect can be subject to superimposed disease or injury, and, if superimposed disease or injury occurs during military service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, whereas credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). In determining whether statements submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). By way of background, the earliest August 1973 Report of Medical Examination disclosed a clinically normal examination of the spine, other musculoskeletal system, lower extremities, and neurologic system. It shows a notation of "(Records Lost)." The Report of Medical Examination from July 1986 from separation disclosed a clinically normal evaluation of the spine, other musculoskeletal system, and neurologic system. In the contemporaneous Report of Medical History from separation, the Veteran denied arthritis, rheumatism, or bursitis, recurrent back pain, and neuritis. The STRs also include a 1986 notation showing, "A lateral scoliosis is present in the lower thoracic area with the concave side of the curve to the right and a second curve is present superiorly with the concave side to the left. The kyphosis shows accentuation and the central thoracic vertebrae through the apex of the curve show anterior wedging and moderate hypertrophic lipping." Many years later, a March 2015 VA addendum medical opinion shows a negative nexus opinion for whether the grade I anterolisthesis is due to or caused by the scoliosis noted during service. The VA physician explained, "No, the grade I anterolisthesis is at L4-5. The scoliosis noted in the service was noted to be at the inferior thoracic level. The anterolisthesis is not caused by the scoliosis." In the March 2017 VA Form 9, the Veteran averred, "I feel that the decision made by the Veteran's Administration is incorrect. I had a back condition while on active duty, and I feel that the injury was mis-diagnosed. My medical professionals have since diagnosed bulging disks, not scoliosis. Since the back condition is so severe, my lower right neurological condition developed." Next, the Veteran testified at the April 2019 hearing regarding the onset of his current back disability: Basically I've had back problems ever since Air Force flight school ejection seat training. Training in 1969, it involved a 37-millimeter shell propelling an ejection seat with you in it, about 35 or 40 feet up a rail. From then on, I have back problems, which progressively have gotten worse. Pilots, in general, are reluctant to discuss many problems with their flight surgeon, especially in depth, because the flight surgeons are sort of like a god, in that, with a stroke of a pen, it can end your aviation career. My back problems finally got to the point that I went to see the Air Force flight surgeon. He ordered x-rays, and from that diagnosis, slight or mild case or scoliosis and determined that that was the cause of my back pain. However, after leaving the Air Force, I went to a back doctor, and he also ordered x-rays to determine my back pain problem, and upon reading the x-rays, decided that he had to do an MRI. From the MRI, it was discovered I had a bulging disk at L4-L5, and that was the cause of my back pain. I specifically asked about the scoliosis diagnosis in the Air Force being the cause of my back pain, and he said that, although I had a slight case of scoliosis, it was not the source of my back pain. The diagnosis of scoliosis as a cause or source of my back pain was in error. And that's it. See April 2019 Hearing Transcript, pp. 4-5. Put differently, his theory of entitlement is that he possibly had a congenital scoliosis, which does not preclude service connection if it was aggravated or if there was a superimposed back injury. The VLJ summarized, "[T]hey found the scoliosis at the thoracic level, inferior thoracic level, but they found the anterolisthesis, the L4-L5; obviously that's at the lumbar level." Id., p. 8. The Veteran's representative highlighted that for VA purposes, the thoracic and lumbar spine are considered the lower back, and there were complaints related to the lower thoracic area on July 15, 1986 in the STRs. Id., p. 6. The Veteran also testified that he did not make any back complaints at separation because he thought that they were already in the records. He elaborated, "I was kind of -- probably a naïve person at that point in my life, in that I didn't realize that I needed to do a lot of things that I should've done -- like that." Id., p. 10. The Board finds these reports to be credible. In May 2019, the Veteran submitted additional lay and medical evidence showing ongoing impressions of back pathology. VA treatment records are substantially the same, and show ongoing reports of back pain and findings of back pathology years after separation. The critical issue is still a nexus. Next the issue was remanded by the Board in June 2019 to afford the Veteran a comprehensive VA examination with medical opinion. Later, VA obtained a set of January 2021 VA examinations with a cornucopia of medical opinions, received by VA in February 2021. First, the January 27, 2021 VA medical opinion shows that the claimed condition was less likely than not incurred in or caused by an in service injury or event to include ejection seat training. The VA examiner opined in part, "I did not find medical record evidence of complaint, eval. or treatment for back pain during service." In the same medical opinion document dated January 27, 2021, the VA examiner also opined: In-service treatment records do not convey that any back disability pre-existed active service. Therefore, there was no in-service condition found to be aggravated. The first mention a back pain condition is twenty-five years post-AD in 2001 (STR, November 2001. C/o of back pain since 1997. Pain usually under control. Two days ago, while vacuuming at home, bent down and pain increased). Veteran advised he retired from commercial airline pilot after retirement from military. It is less likely than not that the Veteran's back disability (which clearly and unmistakably existed prior to service) was aggravated beyond its natural progression by an in-service injury, event or illness. On February 4, 2021, additional VA medical opinions were obtained from the same examiner, R. L. One medical opinion shows a negative nexus opinion for direct and presumptive service connection, along with a rationale. The Veteran's testimony is not discussed. Another medical opinion contains remarks that begin with, "Unable to make a determination based on the STR's." Also dated February 4, 2021 is an addendum medical opinion. It includes the following rationale: Using the 14 Aug 1973 flight physical record as presumption of soundness, and not finding any form 600, consultation sheets, radiology findings prior to 1973, it appears there was no pre existing back disability. Given there was no preexisting back condition found, there would be no condition to be aggravated. Claimant passed multiple FAA class 1 flight physicals over the years. In-service flight physicals did not report back pain, including his July 1986 physical exam. Importantly, in March 2021, VA received a set of February 23, 2021 lay statements from the Veteran and his spouse. They clarified the Veteran's medical history. The Veteran reported that he did not complain about back pain in service because that could lead to permanent grounding. In retrospect he should have sought a correct diagnosis, other than scoliosis, from his civilian doctor. Consistently, the Veteran's spouse recounted that the Veteran has suffered from back problems since early in flight training. He was reluctant to report to the flight surgeon out of fear of being medically grounded. The Board finds these reports to be credible. Next, an Apri 2021 Informal Hearing Presentation (IHP) is of record. It concludes, "For the reasons set forth above, the appellant submits that the appropriate remedy for this appeal is to reverse the lower decision and provide a full grant for the benefits sought, or if applicable, remand for development as needed." Here, the Veteran has presented credible testimony and new lay history regarding a back injury in service resulting in back pain, possibly the same as his current back disability. It could also be superimposed on top of any congenital scoliosis. A Veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (2012). "Clear and unmistakable evidence" means that which cannot be misunderstood or misinterpreted; it is that which is undebatable. Vanerson v. West, 12 Vet. App. 254 (1999). A preexisting injury or disease will be considered to have been aggravated by active military 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. Where a preservice disability underwent an increase in severity in service, there is a presumption of aggravation; clear and unmistakable evidence is required to rebut the presumption of aggravation. 38 U.S.C. § 1153 (2012); 38 C.F.R. § 3.306 (2015). The Court has held that temporary or intermittent flare-ups of a preexisting condition during service are not sufficient to be considered "aggravation in service" unless the underlying condition, as opposed to its symptoms, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). In the instant case, the Board observes that the recent set of VA medical opinions are inconclusive. First, and in light of missing STRs, the absence of a documented complaint of back pain during service is not dispositive by itself. Regarding any lay reports of pain without diagnosed pathology, the Board observes that Saunders clarified that evidence of pain alone which results in functional impairment, even if there is no identified underlying diagnosis, can constitute a disability. See Saunders v. Wilkie, 886 F.3d 1356 (2018). The United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." Second, one of the medical opinions regarding the presumption of soundness is internally inconsistent. The January 2021 VA medical opinion shows in the same paragraph, "In-service treatment records do not convey that any back disability pre-existed active service....It is less likely than not that the Veteran's back disability (which clearly and unmistakably existed prior to service) was aggravated beyond its natural progression by an in-service injury, event or illness." (emphasis added). The February 2021 VA medical opinion from days later shows that the VA examiner was unable to make a determination based on the STRs for any non-congenital back disability. Indeed, 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." Ardison v. Brown, 6 Vet. App. 405, 407 (1994) (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). Once VA undertakes the effort to provide an examination, it must obtain a fully adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Recently, in Miller v. Wilkie, No. 18-2796, the United States Court of Appeals for Veterans Claims (Court) held that when a VA examiner fails to address relevant lay evidence, and the Board fails to find the veteran not credible or not competent to offer that lay evidence, the proper remedy is for VA to obtain a new examination. The Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Therefore, VA must undertake additional development, including obtaining a medical opinion regarding the threshold issue of the rebuttal of soundness, and then nexus opinions that include a consideration of the Veteran's new lay statements. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board notes that the Veteran is competent to report impairment due to pain under Saunders, supra, even if there is no contemporaneous diagnosis. The Veteran need not be re-examined in person unless deemed necessary by the VA examiner. 2. Entitlement to service connection for a nerve disability of the right lower extremity, as secondary to a back disability is remanded. The Board incorporates its discussion from the sections above by reference. Except as provided in § 3.300(c), disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310 (b). Regarding the intertwined issue of entitlement to service connection for a nerve disability of the right lower extremity, the Veteran testified that radiculopathy in the right lower extremity is secondary to the back disability. See April 2019 hearing transcript, pp. 15-16. The issue of service connection for a nerve disability of the right lower extremity, as secondary to a back disability, is inextricably intertwined with the back claim being remanded for additional development. Therefore, a final decision on this issue cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). In addition, we note that a VA examination with medical opinion showing a positive nexus was obtained in February 2021. Hence, a remand of this intertwined issue is also warranted. The matters are REMANDED for the following action: 1. If the Veteran identifies other evidence, obtain updated copies of the Veteran's VA treatment records and any private treatment records, and associate them with the Veteran's claims folder. 2. Please schedule the Veteran for a VA examination with an orthopedic surgeon or, if one is not available, an appropriate clinician, to determine the nature and etiology of any back disability, variously claimed as grade I anterolisthesis of the thoracolumbar spine disability. The claims file should be made available to the VA examiner. The Veteran need not be re-examined in person unless deemed necessary by the VA examiner. The VA examiner should: a. Identify any thoracolumbar spine (back) disability present at any time since entrance, even if such disability resolved during the pendency of the appeal. b. Opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that any back disability preexisted active service. c. If so, opine whether it is clear and unmistakable (obvious, manifest, and undebatable) that any preexisting back disability WAS NOT aggravated (i.e., permanently worsened) during the Veteran's active service or whether it is clear and unmistakable (obvious, manifest, and undebatable) that any increase was due to the natural progress. d. Next, identify the likely etiology for each non-congenital back disability diagnosed. If it is not clear and unmistakable that any diagnosed back disability preexisted service and was not aggravated by service, opine whether it is at least as likely as not (a probability of 50 percent or greater) that any currently diagnosed disability is related to the Veteran's active duty service. This should include a consideration of whether it is at least as likely as not that any superimposed disability is related to active service. Please discuss the Veteran's credible reports of an in-service injury incurred in 1969 during seat ejection training, possibly resulting in back pathology, including superimposed back pathology, on any pre-existing congenital scoliosis. See generally April 2019 Hearing Transcript, p. 10 ("So what we need to do is, again, as I mentioned earlier, [to] see if there was this superimposed disability over and above that, or an aggravation of the scoliosis.") Please also discuss the February 23, 2021 lay statements received in March 2021, submitted since the last VA examination. The Veteran is competent to report a history of impairment due to pain as a disability under Saunders, supra. The examiner should provide a rationale for all opinions expressed. 3. After completing the above, and any other necessary development, the claims remaining on appeal must be readjudicated in light of all pertinent evidence and legal authority. If any benefits sought are not granted, issue the Veteran and his representative an appropriate supplemental statement of the case (SSOC). Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Bodi, 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.