Citation Nr: 22018464
Decision Date: 03/29/22	Archive Date: 03/29/22

DOCKET NO. 17-58 350
DATE: March 29, 2022

REMANDED

Entitlement to service connection for a low back disorder is remanded.

REASONS FOR REMAND

The Veteran served honorably from December 2004 to September 2008.  He is in receipt of a Purple Heart and a Combat Action Badge.

Entitlement to service connection for a low back disorder is remanded.

As much as the Board regrets further delay, remand is required to afford the Veteran every chance to obtain service connection. Here, complaints of low back pain prior to the decision on appeal have not been addressed. 

First, treatment October, November, and December 2015 indicates low back degenerative disease.  According to the Veteran, his low back symptoms were masked by the modified exercise program required by his profile.  As a result, he did not notice his low back pain until several years after service, when he started doing low back exercises again.   

Moreover, a May 2008 X-ray report shows, among other disorders, spina bifida occulta at S1.  The presumption that a veteran is in sound condition at entry into military service does not apply to a congenital defect such as spina bifida, which by their definition, preexist service.  Service connection in this appeal, therefore, turns on whether the Veteran's congenital low back disability was aggravated by service or service-connected disabilities.

Here, the Veteran asserts that his low back pain is traceable to the impact from the July 2007 IED blast, but that it was masked by the TBI profile, and the treatment of his headaches and balance disorders.  The record includes two examinations discussing the likelihood that the Veteran's back disorder was incurred in or caused by service, to include the IED blast and his duties as Cannon Crewmember.  Yet, the medical evidence does not discuss whether the Veteran's congenital spina bifida was aggravated by incidents of service or service-connected disabilities.  An examination may have uncovered medical information assisting the Veteran's claim. The failure to address aggravation of the Veteran's spina bifida warrants a remand for examination.

The matters are REMANDED for the following action:

1. Add all outstanding VA treatment records not currently associated with the Veteran's claims file.   

If the Veteran has obtained treatment outside of VA, the Veteran should be afforded an opportunity to add any applicable records.

2. Schedule the Veteran for a VA examination for his low back disability. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinions below.

The examiner is asked to provide a response to the following:

"To the extent that one or more of the Veteran's back disabilities is congenital in nature, was this congenital disorder worsened in severity during service or because of a service-connected disability?  Specifically consider and discuss the Veteran's lay statements of: (a) back pain following the July 2007 IED blast and treatment for sequelae of TBI, and (b) his in-service duties as Cannon Crewmember, which include carrying 100 pound artillery shells."

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Z. Maskatia