Citation Nr: 21029317 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 12-32 588 DATE: May 13, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1980 to May 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Board denied the Veteran's claim for service connection for a back disability. The Veteran then appealed the matter to the Court of Appeals for Veterans Claims (Court). In May 2020, the Court vacated the June 2018 decision and remanded the matter to the Board. Subsequently, the Board remanded the matter to the RO for additional development in a January 2021 decision. It has now returned for further appellate review. 1. Entitlement to service connection for a back disability is remanded. While further delay is unfortunate, the Board finds that additional development is necessary before a final decision may be rendered in this matter. Pursuant to the January 2021 Board remand decision, the Veteran received a VA examination regarding the nature and etiology of his claimed back disability in February 2021. The February 2021 examiner opined that the "Veteran's current back condition, including degenerative arthritis, degenerative disc disease, spondylolisthesis, and pars interarticularis defect, and any other back condition such as spinal stenosis are less likely than not caused by a 1984 in-service back injury." By way of rationale the examiner stated that he agreed with a previous "July 11, 2018" decision which found that "significantly more likely than not that [the Veteran's] bilateral pars interarticularis defects are congenital." The Board notes that there is no decision dated July 11, 2018, however it appears that the examiner extracted this quote from either the June 2018 Board decision denying service connection for the claimed back condition or a July 2017 medical opinion. As noted above, the June 2018 Board decision was vacated by the Court in its May 2020 remand decision. Additionally, the July 2017 medical opinion was found to be inadequate for determining entitlement to service connection in the January 2021 Board decision as it was based on a factual premise that was inconsistent with credible lay evidence. Further, while both the February 2021 examiner and the July 2017 examiner opined that the Veteran's current back problems are the result of a congenital defect, neither examiner provided an explanation as to what facts and evidence led to this conclusion, or why the condition should be considered a defect. Notably, neither physician addressed the Veteran's June 1980 enlistment examination, June 1986 reenlistment examination, or February 1988 separation examination, where no congenital conditions were noted. Accordingly, the Board finds the February 2021 examination to be inadequate for determining entitlement to service connection for a back disability. As to the February 2021 and July 2017 examiners' findings of a congenital "defect", the Board notes that for purposes of determining whether a disorder is a congenital defect or a familial disease, VA interprets the term "disease" in 38 U.S.C. §§ 1110, 1131 (2012) and the term "defects" in 38 C.F.R. § 3.303 (c) (2017) as being mutually exclusive. As noted in VAOPGCPREC 82-90, a Federal court, in drawing a distinction between "disease" and "defect", indicated that disease referred to a condition capable of improving or deteriorating, whereas defect referred to a condition not capable of improving or deteriorating. See Durham v. United States, 214 F.2d 862, 875 (D.C. Cir. 1954); see also United States v. Shorter, 343 A.2d 569, 572 (D.C. 1975). A congenital "defect" is not a disability for VA compensation purposes unless the defect was subject to a superimposed disease or injury. See 38 C.F.R. § 3.303 (c); VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In light of the foregoing, the Board finds a remand is warranted to obtain an adequate medical examination and opinion. The matter is REMANDED for the following action: Schedule the Veteran for an examination with an examiner of appropriate expertise to ascertain the nature and etiology of his claimed back condition. Any indicated evaluations, studies, or tests deemed necessary should be performed. The entire claims file should be made available to the examiner designated to provide the opinion. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least likely as not (50 percent probability or greater) that the Veteran's back condition was incurred in, aggravated by, or is otherwise etiologically related to the Veteran's active duty service. In providing this opinion, the examiner must address all relevant evidence of record, including but not limited to lay statements and evidence of a 1984 in-service back injury, as it pertains to in-service incurrence and continuity of symptomatology. If the examiner chooses to reject the Veteran's lay statements, the examiner must provide a reason for doing so. The Veteran's lay statements may not be rejected solely due to an absence of contemporaneous or corroborating medical evidence, although this may be considered together with the other evidence of record. The examiner must also provide an opinion as to whether the Veteran has a congenital back condition, and if so, whether such condition should be considered a "disease" or "defect" in accordance with VA law. The examiner must acknowledge and accept that for legal purposes, a disease is a condition capable of improving or deteriorating, whereas a defect is a condition not capable of improving or deteriorating. If a congenital defect of the low back is diagnosed, the examiner must opine as to whether there was any superimposed disorder during the Veteran's active duty service. If a congenital disease of the low back is diagnosed, the examiner must opine as to whether such disease was aggravated beyond its natural progression by the Veteran's active duty service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries and that his reports must be taken into account in formulating the requested opinions. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Gorum, 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.