Citation Nr: 21031192 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 16-05 687A DATE: May 20, 2021 ORDER Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. REMANDED Entitlement to service connection for fibromuscular dysplasia is remanded. Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI) is remanded. Entitlement to service connection for an acquired psychiatric disability, characterized as unspecified anxiety disorder is remanded. FINDINGS OF FACT The weight of the evidence supports a finding that symptoms of the Veteran's degenerative arthritis of the lumbar spine have manifested continuously since the time of his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from February 1995 to December 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for granted service connection for TBI with an initial 10 percent rating assigned, and denied service connection for a low back disorder, acquired psychiatric disability, and fibromuscular dysplasia. The Veteran filed a notice of disagreement (NOD) in January 2014, a statement of the case (SOC) was issued in December 2015 and the appeal was perfected in February 2016. These matters were previously before the Board in July 2020, when they were remanded for further development. A remand by the Board confers on the Veteran, as a matter of law, the right to substantial compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). As discussed further below, the Board finds that there has been substantial compliance with the remand directives relating to the Veteran's lumbar spine and fibromuscular dysplasia claims, and adjudication is therefore appropriate. The Veteran's TBI and acquired psychiatric disability claims must be remanded again. Service Connection Entitlement to service connection for degenerative arthritis of the lumbar spine is granted. Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. A December 2015 private medical treatment note documents a diagnosis, by medical imaging, of lumbar spondylosis and degenerative arthritis of the lumbar spine. Arthritis is among those disabilities for which VA may presume a nexus between an in-service incurrence or event and a current disability provided there is a showing of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.309(a). A May 1995 entry in the Veteran's service treatment records (STRs) reflects complaints of low back pain. A February 1998 entry in his STRs reflects complaints of low back pain following a motorcycle accident; a subsequent February 1998 note reflects additional complaints of pain after lifting a tow bar. An October 1998 entry reflects complaints of back pain, diagnosed as lumbar strain, after lifting transmissions. A July 2001 entry reflects that the Veteran was in a motor vehicle accident earlier that month. An October 2006 summary of proceedings associated with the Veteran's medical separation from the Marines reflects ongoing complaints of back pain. Private treatment records dated November 2013, December 2013, and November 2014 reflect complaints of low back pain. VA treatment records dated December 2015, September 2017, October 2017, and March 2018 reflect complaints of low back pain. At his March 2019 Board hearing, the Veteran testified that he began experiencing back pain during his period of active service, and that it had become gradually worse since the time of his active service. Laypeople are competent to report symptoms and experiences observable by their senses, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Board finds the Veteran's March 2019 hearing testimony credible, and consistent with the statements to treating providers documented in his private and VA medical records. VA obtained medical opinions as to the etiology of the Veteran's low back pain in November 2019 and July 2020; both opinions were authored by the same examiner and are substantially the same. The examiner opined that it was less likely than not that the Veteran's low back pain was attributable to an event, injury, or occurrence during active service. In fact, in both November 2019 and July 2020 the examiner opined that the Veteran had no diagnosed lumbar spine disability. In both the November 2019 and July 2020 opinions the examiner referred to November 2019 radiological findings as showing "age related changes." The examiner did not discuss the December 2015 radiological findings of spondylosis and degenerative arthritis, despite those findings having been associated with the claims file in March 2019. The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. See Sklar v. Brown, 5 Vet. App. 140 (1993). The examiner offered no rationale to support the conclusory statement that November 2019 radiological findings showed only "age related changes." Whether the current condition of the Veteran's lumbar spine is the result of age, or another factor, to include an in-service event, injury, or occurrence, is exactly the question at issue in this appeal. The conclusion that radiological findings are age-related, and not at least as likely as not attributable to the Veteran's active service, must be supported by a rationale, which the examiner did not provide. Moreover, by not acknowledging the December 2015 evidence of spondylosis and degenerative arthritis of the lumbar spine, the examiner failed to produce an opinion that reflected consideration of all evidence of record. Accordingly, the Board finds the November 2019 and July 2020 opinions to be of limited probative value. In light of the foregoing, the Board finds that the weight of the evidence supports a finding that the Veteran has experienced continuous symptoms of low back pain since the time of his active service. As arthritis is a chronic disease under 38 C.F.R. § 3.309(a), service connection may be awarded based solely on continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Accordingly, the Board concludes that the criteria for entitlement to service connection for degenerative arthritis of the lumbar spine have been met, and the same is hereby granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for fibromuscular dysplasia, to include as aggravated by a service-connected disability, is remanded. As reflected by his March 2019 hearing testimony, the Veteran seeks service connection for fibromuscular dysplasia that he contends is the cause of pain on the left side of his body. An October 2012 VA examiner opined that the Veteran's fibromuscular dysplasia was congenital in nature, and therefore less likely than not the result of an event, injury, or incurrence during his period of active service. However, the congenital nature of a disability does not represent an absolute bar to service connection. 38 U.S.C. § 1111 provides, on claims of service-connected disability: When no preexisting condition is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran's disability was both preexisting and not aggravated by service. The presumption of soundness does not apply to congenital defects because such defects "are not diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. See 38 C.F.R. § 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390 (holding that the presumption of soundness does not apply to congenital defects); Winn v. Brown, 8 Vet. App. 510, 516 (1996) (holding that a non-disease or non-injury entity such as a congenital defect is "not the type of disease- or injury-related defect to which the presumption of soundness can apply"). However, if it is determined that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-97. Once the presumption of attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service and was not aggravated by such service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). In short, service connection is available for congenital diseases, but not defects, that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe, 4 Vet. App. at 515. Further, a congenital defect can still be subject to superimposed disease or injury. VA O.G.C. Prec. Op. No. 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990) (a reissue of General Counsel Opinion 01-85 (March 5, 1985). If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. Thus, in order to determine whether service connection for fibromuscular dysplasia, or any superimposed injury, is warranted, the Board must determine whether the Veteran's fibromuscular dysplasia is a congenital disease or a congenital defect; if a congenital disease, whether the presumption of soundness attaches, and, if so, whether the disease first manifested in service, or was aggravated in service; or, if a congenital defect, whether it has been subject to any superimposed injury. In regard to the above, the Board notes that the Veteran's May 1994 enlistment examination does not reflect any diagnosis of, or treatment for, fibromuscular dysplasia. The Veteran's fibromuscular dysplasia claim was previously before the Board in August 2019 and July 2020, at which time the October 2012 VA examination was discussed. However, no medical opinion currently of record, including the October 2012 VA examination, clearly speaks to the question of whether fibromuscular dysplasia is a congenital disease or a congenital defect. Further, the Board notes that in July 2020, a VA examiner opined that the Veteran's fibromuscular dysplasia both clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by an in-service event. In support of this, the examiner stated as follows: "Fibromuscular dysplasia (FMD) is a noninflammatory, nonatherosclerotic disorder that leads to arterial stenosis, occlusion, aneurysm, dissection, and arterial tortuosity...Review of medical records demonstrate no objective evidence that condition was aggravated in any measurable way by his military service, to include the in-service MVA, beyond its natural progression. There is no evidence of ischemia related stenosis, dissection and occlusion of major arteries, ruptured aneurism or embolization of intravascular thrombi from dissection of aneurism that indicate progression/ aggravation of the condition." The Board finds this the July 2020 opinion inconsistent with an August 2006 note in the Veteran's STRs documenting arterial occlusion in the left radial artery, and an October 2006 problem list in the Veteran's STRs documenting stricture of artery, arterial embolism, and thrombosis of the upper extremity. Moreover, the examiner identified no factual support for the conclusion that the Veteran's fibromuscular dysplasia clearly and unmistakably had manifested before the beginning of the Veteran's active service. In light of the foregoing, the Board finds that the Veteran's fibromuscular dysplasia claim should be remanded to obtain a VA medical opinion that addresses: whether the Veteran's fibromuscular dysplasia is a congenital disease or a congenital defect; if a congenital disease, whether it clearly and unmistakably manifested prior to service, and/or whether the disease first manifested in service, or was aggravated in service; or, if a congenital defect, whether it was subject to any superimposed injury while in service or as a result of a service-connected disability. Such opinion should reflect consideration of all evidence of record and should be supported by an adequate rationale. 2. Entitlement to a disability rating in excess of 10 percent for traumatic brain injury (TBI) is remanded; entitlement to service connection for an acquired psychiatric disability, characterized as unspecified anxiety disorder is remanded. The Veteran is currently service connected for an in-service TBI, with residuals currently rated as 10 percent disabling. He also seeks service connection for an acquired psychiatric disability, currently characterized as unspecified anxiety disorder. The Board notes that ratable TBI residuals may include cognitive and behavioral symptoms. 38 C.F.R. § 4.124a, Diagnostic Code 8045. Independently ratable symptoms of TBI may be evaluated under separate diagnostic codes. See e.g. Esteban v. Brown, 6 Vet. App. 259 (1994). In July 2020, the Board remanded the Veteran's TBI and anxiety claims to obtain new VA examinations addressing the severity of the Veteran's TBI residuals, as well as the etiology of the Veteran's claimed acquired psychiatric disability. As referenced above, the Board finds that there has not been substantial compliance with its July 2020 remand directives regarding either disability. In November 2019 and September 2020 VA examiners stated that no mental health symptoms are attributable to the Veteran's TBI, as his 2004 TBI purportedly resolved without residuals. The Board finds that this is an inaccurate factual premise. VA examinations dated October 2012 and May 2017 reflect TBI residuals, which serve as the basis for the Veteran's current rating. Further, after the November 2019 and September 2020 VA examinations, a February 2021 VA examiner documented symptoms attributable to the Veteran's TBI. Accordingly, the Board finds that any opinion which rests on the premise that there are no TBI residuals is inadequate. There has therefore not been an adequate opinion obtained as to either the severity of the Veteran's current TBI residuals, or the etiology of his claimed acquired psychiatric disability. Further, the Board finds that evidence developed in the course of adjudicating the Veteran's claim of service connection for an acquired psychiatric disability could significantly impact a decision on the issue of a disability rating in excess of 10 percent for TBI, and vice versa; The issues are thus inextricably intertwined and should be remanded for adjudication together. The matters are REMANDED for the following action: 1. Obtain a new opinion from a different VA examiner as to the nature and circumstances of onset of the Veteran's fibromuscular dysplasia. The examiner should respond to the following questions: (a.) Is the Veteran's fibromuscular dysplasia a congenital disease or a congenital defect? (b.) If a disease: a. Is there clear and unmistakable evidence that the Veteran's fibromuscular dysplasia manifested prior to the beginning of his period of active service? Any such evidence should be clearly identified. b. Is there clear and unmistakable evidence that the Veteran's fibromuscular dysplasia was not aggravated beyond its natural progression by the circumstances of his active service? Any such evidence should be clearly identified. (c.) If a defect, is it at least as likely as not that the Veteran's fibromuscular dysplasia was subject to superimposed disease or injury during the Veteran's period of active service, or as a result of a service-connected disability? A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. 2. Forward the claims file, including this remand, to the examiner who provided the February 2021 opinions as to the Veteran's TBI and acquired psychiatric disability. If the February 2021 VA examiner is unavailable, or is unable to offer the opinion sought, the requested opinions should be obtained from another appropriately qualified clinician. The examiner shall indicate in the addendum report that the claims file was reviewed. The need for an additional in person examination is left to the discretion of the medical professional offering the addendum opinion. The examiner should opine as to the current severity of all the residuals of the Veteran's service connected TBI, to include any residuals manifesting as separately diagnosed acquired psychiatric disabilities. The examiner should identify and discuss any acquired psychiatric disabilities identified during the examination and the pendency of this claim. For each diagnosed disability, please respond to the following: (a.) Whether the Veteran's acquired psychiatric disability is at least as likely as not related to an in-service injury, event, or disease, or whether it first had its onset during a period of active service. (b.) Whether the Veteran's acquired psychiatric disability is at least as likely as not (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner explain why an opinion cannot be provided and specifically state whether the inability to provide an opinion is due to the limits of the examiner's knowledge, the limits of medical knowledge in general, or there is additional evidence that would allow for an opinion on this matter. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sametshaw, Eric C. 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.