Citation Nr: 21039700 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-60 753 DATE: July 1, 2021 ORDER New and material evidence to reopen a claim of entitlement to service connection for low back condition having been received, the claim is reopened. To this extent only, the claim is granted. REMANDED Entitlement to service connection for low back condition is remanded. FINDINGS OF FACT 1. A January 1970 rating decision denied entitlement to service connection for low back condition. The Veteran was notified of that decision and initiated an appeal. The denial was confirmed in a May 1970 rating decision, but he did not perfect the appeal after the June 1970 statement of the case was issued. 2. The evidence received since the May 1970 rating decision is new to the record, relates to an unestablished fact necessary to substantiate the merits of the claim, and raises a reasonable possibility of substantiating the claim of service connection for low back condition. CONCLUSIONS OF LAW 1. The January and May 1970 rating decisions, which denied the Veteran's claim of entitlement to service connection for low back condition, are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103. 2. Since the May 1970 rating decision, new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for low back condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1969 to June 1969. This appeal to the Board of Veterans' Appeals (Board) is from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned during a video conference hearing; a transcript of the hearing is of record. By way of background, in January 2020, the Board denied reopening the claim for entitlement to service connection for low back condition. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). In December 2020, the Court issued a Joint Motion for Remand (JMR) and vacated and remanded the Board decision regarding the claim to reopen. As such, the claim has now been returned to the Board for action consistent with the Joint Motion. Claim to Reopen To reopen a claim that has been denied by a final decision, the claimant must present new and material evidence with respect to the claim. 38 U.S.C. § 5108. "New evidence" means existing evidence not previously submitted to VA. 38 C.F.R. § 3.156(a). "Material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim, and it must raise a reasonable possibility of substantiating the claim. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, the "credibility" of newly presented evidence is to be presumed unless the evidence is inherently incredible or beyond the competence of the witness). The language of 38 C.F.R. § 3.156(a) creates a low threshold for finding new and material evidence, and it views the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." See Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). Evidence "raises a reasonable possibility of substantiating the claim" if it would trigger VA's duty to provide an examination in adjudicating a non-final claim. See id. at 120-23. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for low back condition. Here, the Veteran's claim for service connection for low back condition was originally denied in a January 1970 rating decision. See January 1970 Rating Decision (e.g. VA Form 21-6796). The RO denied service connection for a low back disorder based on a determination that the diagnosed congenital disorders of hemivertebrae and lumbar scoliosis existed prior to service and were not aggravated by service. Service treatment records show he complained of back pain during basic training and that he had back pain with exertion. See December 1969 STR Medical. The Veteran filed to reopen his claim and after he was afforded a VA examination in April 1970 that contained the same findings of the Veteran having only a congenital disorder, a May 1970 rating decision confirmed the earlier denial on the basis that there was no aggravation. See May 1970 Deferred Rating (e.g. VA Form 21-6789) and April 1970 VA Examination. Since he did not perfect the appeal after the June 1970 statement of the case was issued, these decisions became final. See 38 U.S.C. § 7105. Further no new and material evidence was received within one year of that decision. The claim to reopen was received in December 2014. See December 2014 VA 21-4138 Statement In Support of Claim. As noted above, in December 2020, the Court issued a JMR and vacated and remanded the January 2020 Board decision that denied reopening the claim for entitlement to service connection for low back condition. See December 2020 CAVC Decision. Pertinent evidence received since the May 1970 rating decision includes the Veteran's statements that that he slipped and fell on the stairs in service, which resulted in an injury to his back during his period of active service. The Veteran reported that he was hospitalized for three to five days and after continually complaining, he was separated by the Medical Board. He indicated he was not aware he had a low back problem prior to service until he was told this after his injury. He denied having any pain prior to service. See August 2015 NOD, November 2016 Form 9, and November 2019 Hearing Transcript. As this evidence was submitted and acquired after the last final May 1970 rating decision and relates to the lacking element of a possibility of aggravation during service, and is presumed credible for the limited purpose of reopening, it is new and material. Accordingly, new and material evidence having been received, the Board finds that the claim for service connection for a low back condition is reopened. REASONS FOR REMAND Entitlement to service connection for low back condition is remanded. A remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran asserts that his current low back condition is related to an in-service injury as described above that resulted in his medical board recommendation for separation from military service, and that he denied having a back problem prior to entering his period of active service. A review of his STRs confirm that on his induction examination in April 1969, there was no spine abnormality noted on clinical evaluation. See April 1969 STR Medical. May 1969 STRs show the Veteran's consult request for low back pain. The May 1969 record noted abnormal x-rays that revealed congenital hemivertebrae at L4 to L5 area and lumbar scoliosis with an impression that low back symptoms will continue with skeletal abnormality and recommended separation. See id. A June 1969 STR noted a physical profile that indicated the Veteran's painful back and recommended no strenuous physical activity. A subsequent June 1969 STR noted the Veteran had several years of recurrent low back pain brought on by running, long standing, bending, and lifting. X-ray studies showed congenital hemivertebrae at L4 to L5 and lumbar scoliosis. The medical board recommended separation for a condition which existed prior to service and had not been aggravated by active service. See id. A June 1969 separation report of medical examination noted the Veteran's lumbar scoliosis and congenital hemivertebrae at L4 to L5 and a June 1969 separation report of medical history noted the Veteran's reports for recurrent back pain. See id. Following his separation from service, a December 1969 from the Community Medical Clinic contained a patient history of complaints of aching back since July. An x-ray report showed congenital defect involving L4 and L5 which has produced very marked roto-scoliosis of the lumbar spine with concavity towards the right. As indicated above, the Veteran was provided a VA examination for a low back condition in April 1970. See April 1970 VA examination. However, except for noting the Veteran's congenital deformity of the lumbar spine, no etiological opinion was provided. While the Veteran's April 1969 induction examination reflects a normal spine examination, the June 1969 medical board examiner noted that the Veteran's several year history of recurrent low back pain. See December 1969 STR Medical. Thereafter, as revealed in a June 1969 STR noted above that x-rays revealed a congenital hemivertebrae at L4 to L5 and lumbar scoliosis and that the Veteran was recommended to "be separated from Military Service...for a condition which existed prior to service..." and thus indicating the belief at that time that the low back condition existed prior to service. A veteran is considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or a disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304. To rebut the presumption of sound condition, VA must show by clear and unmistakable (obvious or manifest) evidence both (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. See 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). Thus, when the presumption of sound condition applies, the claimant is not required to establish aggravation by showing that the pre-existing disease or injury increased in severity during service. See VAOPGCPREC 3-03. Rather, the burden remains with VA to show by clear and unmistakable evidence that the pre-existing disease or injury was not aggravated by service. See id.; Wagner, 370 F.3d at 1096; see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012) (observing that "even when there is clear and unmistakable evidence of preexistence, the claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong of the presumption of soundness"). The presumption of soundness does not, however, apply to congenital or developmental defects because such defects are not "diseases or injuries" within the meaning of 38 U.S.C. §§ 1110 and 1111. Nevertheless, service connection may be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990); see also Carpenter v. Brown, 8 Vet. App. 240 (1995). However, service connection may be granted for diseases (but not defects) of congenital, developmental, or familial (hereditary) origin if the condition was incurred in or aggravated during service beyond its natural progression. Although the April 1970 VA examination noted "congenital deformity," there is no opinion of record specifically identifying the Veteran's low back condition as a congenital defect or a congenital disease. Because the law provides a distinction between a congenital defect and disease, a remand is needed to obtain an opinion that addresses whether the Veteran's low back condition is a congenital defect or congenital disease, along with whether there was aggravation of the defect by a superimposed disease or injury during service or if the congenital disease was aggravated beyond normal progression during service. The Veteran also reported receiving treatment at a VA hospital in Seattle for his back sometime between 1969 and 1970. See November 2019 Hearing Transcript. Additionally, in a November 2019 VA 21-527EZ, Fully Developed Claim form, the Veteran indicated he received Social Security Administration (SSA) benefits; however, no SSA medical records or disability determinations are of record. Thus, on remand, attempts should be made to obtain these outstanding records, if available. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009); see 38 C.F.R. § 3.159(c)(2) (VA obligated to obtain relevant records from federal agencies). The matter is REMANDED for the following action: 1. Contact the Veteran, and, with any necessary assistance or authorization, obtain any outstanding records of pertinent medical treatment from VA or private health care providers, to include any VA treatment records from 1969 to 1970, to include any archived VA records from Seattle. 2. Contact the Veteran, and, with any necessary assistance or authorization, obtain the Veteran's federal records from the Social Security Administration, if available, to include a copy of any determination concerning the Veteran's entitlement to SSA disability benefits and the application and medical evidence upon which such determination was based. Document all requests for information as well as all responses regarding attempts to obtain the VA, private, and SSA treatment records in the claims file. 3. After development #1 and #2 are completed, obtain an opinion by an appropriate clinician to determine the nature and etiology of any currently diagnosed low back condition. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. The Veteran should be scheduled for an examination if determined necessary. The examiner is asked to respond to the following: (a) Identify all currently diagnosed low back conditions, to include congenital hemivertebrae of L4 to L5 and lumbar scoliosis, if present. (b) Is any diagnosed low back condition a congenital defect or disease? The examiner is informed that for VA adjudication purposes, "disease" generally refers to a condition considered capable of improving or deteriorating, whereas "defect" generally refers to a condition not considered capable of improving or deteriorating. (c) For any diagnosed low back condition that is a congenital defect, is it at least as likely as not (50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional back condition? If so, please identify the additional disability. In answering the foregoing, the examiner must consider the service treatment records that show complaints of back pain and June 1969 profile of limited duty due to hemivertebrae of L4 to L5 and lumbar scoliosis. (d) For any diagnosed low back condition that is a congenital disease, is it clear and unmistakable that the condition preexisted the Veteran's military service? If so, please identify and explain what clear and unmistakable evidence indicates such conclusion. (e) If so, is it clear and unmistakable that the preexisting low back disease WAS NOT aggravated during the Veteran's active duty service or that any increase in disability was due to the natural progression of the disease? Please explain why or why not. In other words, is there undebatable evidence that there was no increase in the disability during service or that any increase in disability was due to the natural progress of the pre-existing condition? The answer to EACH question in (d) and (e) above, as determined by the examiner, MUST include the phrase "clearly and unmistakably" in order to satisfy the requisite standard of proof. (f) If there is no clear and unmistakable evidence that a congenital disease pre-existed service, the examiner is asked to opine as to whether it is at least as likely as not (probability of 50 percent or greater) that the disorder had its onset during, or is otherwise related to, the Veteran's military service. Please explain why or why not. (g) For any diagnosed low back condition that is not a congenital defect or disease, is it at least as likely as not (50 percent or greater) that the low back condition was incurred in service or is otherwise causally related to his active service or any incident therein? Please explain why or why not. In providing the requested opinions, the examiner should consider the following: (i) April 1969 induction report of medical examination that showed no spine abnormality on clinical evaluation; (ii) a June 1969 STR noted above that x-rays revealed a congenital hemivertebrae at L4 to L5 and lumbar scoliosis and that the Veteran was recommended to "be separated from Military Service...for a condition which existed prior to service;" and (iii) the Veteran's reports of chronic back pain. An opinion must be provided for each of the foregoing questions. A complete rationale must be provided for each opinion offered. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.