Citation Nr: 25003422 Decision Date: 03/11/25 Archive Date: 03/11/25 DOCKET NO. 18-43 978 DATE: March 11, 2025 REMANDED Entitlement to service connection for ankylosing spondylitis is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1998 to July 2002. This appeal to this Board of Veterans' Appeals (Board) comes from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in February 2023. The Board finds that, unfortunately, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Entitlement to service connection for ankylosing spondylitis is remanded. The Veteran contends that his ankylosing spondylitis was caused by or incurred in service; alternatively, the Veteran contends his ankylosing spondylitis is a genetic condition that pre-existed service and was aggravated by service. The Veteran has reported that he suffered lower back pain during service in January 2018 correspondence and under oath during a March 2018 hearing. Additionally, following June 2014 imaging, he was diagnosed with ankylosing spondylitis. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disabilities noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. To rebut the presumption of soundness for disabilities not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). When the Veteran is presumed sound at entrance, 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. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In Horn v. Shinseki, the Court explained 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. Rather, the burden is on VA to establish by clear and unmistakable evidence that it did not or that any increase was due to the natural progress of the disease. 25 Vet. App. 231, 235 (2012). Clear and unmistakable evidence means that the evidence "cannot be misinterpreted and misunderstood, i.e., it is undebatable." Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Regarding congenital diseases and defects, the presumption of soundness applies if a congenital disease is not noted at entry. See Quirin, 22 Vet. App. 390, 396 97 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993). However, congenital or developmental "defects" automatically rebut the presumption of soundness and are considered to have preexisted service. 38 C.F.R. §§ 3.303 (c), 4.9. A congenital defect generally may not be service-connected as a matter of law as it is not considered a disease or injury for VA purposes. See 38 C.F.R. §§ 3.303 (c), 4.9. However, service connection may be granted if a congenital defect is subject to, or aggravated by, a superimposed disease or injury during service that causes additional disability. See 38 U.S.C. §§ 1110, 1111; VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); Quirin, 22 Vet. App. 390 (2009); Winn v. Brown, 8 Vet. App. 510, 516 (1996). In this claim, following the February 2023 Board remand, a March 2023 Board examiner provided an opinion that the Veteran's ankylosing spondylitis "was aggravated beyond normal progression with his engaging in activities that but too much strain on his back such as his job as an airplane mechanic." However, the examiner did not opine on whether the Veteran's ankylosing spondylitis was a congenital defect or disease, though the examiner did mention that with "ankylosing spondylitis, it seems that genetic factors are involved. Most people who have ankylosing spondylitis have the HLA_B27 gene." As the examiner did not opine on whether the Veteran's ankylosing spondylitis was a congenital defect or disease, the opinion is inadequate for the purpose of adjudication of the claim under that theory of entitlement. If the Veteran's ankylosing spondylitis is a congenital defect, then the VA examiner must indicate whether the defect was subject to or aggravated by a superimposed disease or injury during service. If the low back disability is not a congenital defect, then the question returns to one of direct service connection, and an opinion towards this theory of entitlement should again be obtained. The Board notes that VA obtained direct service connection opinions in January 2024 and May 2024; however, neither are adequate for the purposes as adjudication, as the examiners failed to consider any of the Veteran's lay statements regarding in-service back pain. Id., Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, a new direct service connection opinion must be obtained. The Board further notes that, in support of his claim, the Veteran submitted two opinions by his treating VA physicians, Dr. D.S. (submitted in January 2018) and Dr. E.K. (submitted in January 2019), opining that the Veteran's ankylosing spondylitis was more than likely aggravated beyond normal progression by the Veteran's time as an in-service aircraft mechanic. The Veteran's former colleague also submitted a buddy statement in January 2019 about the Veteran's complaints of back pain. The Board emphasizes that it is not determining whether or not the Veteran's statements as to the onset and continuity of his spine disability symptoms are credible at this time, as the additional development set forth in the directives below could impact that determination. Although the Board is requesting medical opinions regarding such lay assertions, this is for thoroughness and not based on a finding that such assertions are credible. The matter is REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriately qualified VA examiner regarding the nature and etiology of the Veteran's spine disability, including ankylosing spondylitis. An examination should be scheduled only if the examiner finds it necessary to provide an opinion in this case. The Veteran's claims file should be made available to, and reviewed by, the examiner, to include a copy of this REMAND. After review of the claims file, the examiner should address the following: (a) If the Veteran has a spine disability, including ankylosing spondylitis, that is a congenital defect, opine whether it was aggravated by a superimposed disease or injury due to the Veteran's service. (b) If the Veteran has a spine disability, including ankylosing spondylitis, that is a congenital disease, opine whether it was aggravated by an in-service event or injury. (c) If the Veteran has a spine disability, including ankylosing spondylitis, that is not a congenital defect or disease, opine whether it is etiologically related to an in-service event, injury, or illness. In doing so, the examiner is advised that for VA purposes, a congenital defect is a structural or inherent abnormality or condition which is more or less stationary in nature and a congenital disease is a condition that is capable of improving or deteriorating. In providing the above opinions, the examiner should address the June 2014 imaging showing the Veteran has a diagnosis of ankylosing spondylitis; the March 2023 VA examiner's note that ankylosing spondylitis seems to have genetic factors and that most people who have ankylosing spondylitis have the HLA_B27 gene; the Veteran's January 2018 and March 2018 lay statements that he suffered from back pain during service that has continued since; the January 2019 buddy statement; the January 2018 opinion of Dr. D.S. and the January 2019 opinion of Dr. E.K. July 1998. The examiner must provide a clear rationale with a well-reasoned explanation for all opinions expressed. 2. Thereafter, review the requested VA medical examination reports to ensure responsiveness and compliance with the directives of this remand; implement corrective procedures as needed. Compliance with the Board's remand instructions is neither optional nor discretionary. Stegall v. West, 11 Vet. App. 268 (1998). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Eisenberg 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.