Citation Nr: 1749126	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-01 633	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to service connection for a low back disability.


REPRESENTATION

The Veteran represented by:  Patricia E. Roberts, Esq.


ATTORNEY FOR THE BOARD

Grace J. Suh, Associate Counsel





INTRODUCTION

The Veteran served on active duty with from October 1979 to October 1984.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In August 2016, the Board issued a decision denying the Veteran's service connection claim for a low back disability.  The Veteran appealed that decision to the United States Court of Appeals for Veterans' Claims (Court).  By a May 2017 Order, the Court, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's August 2016 decision in part and remanded the matter for further action consistent with the JMPR.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  The VA will notify the Veteran if further action is required.


REMAND

The Veteran contends that her claimed low back disabilities stem from the same in-service accident as her service-connected intervertebral disc syndrome (IVDS) of the cervical spine with degenerative joint disease (cervical spine disability).  See October 2006 Letter from the Veteran; October 2010 Statement in Support of Claim; December 2015 Statement in Support of Claim.

More specifically, during an airborne operation, the Veteran hit the side of a plane door, which resulted in an injury to her cervical spine in service.  See July 1982 Consultation Sheet; July 1982 Chronological Record of Medical Care.  She sought medical attention immediately following this incident.  At that time, the treatment providers observed that she had an abrasion on the left side of her neck, which appeared superficial in nature; tenderness over the left lateral aspect of the C2-C3, and attendant decrease in range of motion; and tenderness in her lower left ribs and costovertebral angle on the left.  An x-ray examination revealed no loss of cervical lordosis or fracture, but a possible compression of the C3.  See July 1982 Consultation Sheet.  In the end, the treatment provider noted an impression of paravertebral sprain of the cervical spine with significant muscle spasm and prescribed a soft collar.  As a result of this injury, she was given a temporary profile.

In its May 2017 Order, the Court granted the JMPR vacating the Board's August 2016 decision in part and remanding the matter for further action consistent with the JMPR.  The JMPR was rooted in the finding that the February 2015 VA Examination Report and subsequent March 2015 VA Addendum Medical Opinion were inadequate because the VA examiner's opinions were simply conclusory and not supported by sufficient rationale.  As such, the JMPR concluded a remand was necessary for another VA medical opinion. 

In furtherance of this claim, the Veteran has been afforded two VA examinations; first in March 2010, then in February 2015.  See March 2010 VA Examination Report; February 2015 VA Examination Report.  In addition, the February 2015 VA examiner proffered an addendum medical opinion in March 2015.  See March 2015 VA Addendum Medical Opinion.

A review of the March 2010 VA Examination Report discloses a diagnosis of thoracolumbar scoliosis upon examination.  Additionally, the VA examiner acknowledged the claims file contained a diagnosis of chronic low back pain with degenerative disc disease and possible herniated disk at the L5-S1.  See March 2010 VA Examination Report.  In rendering a negative nexus opinion, the VA examiner neglected to address all diagnoses of record.  The VA examiner also failed to opine whether the low back diagnoses were caused by or otherwise related to the same in-service incurrence for which she is service-connected for the cervical spine disability.  Rather, the VA examiner only determined it was unrelated to the low back and flank pain documented in service, which was due to a vaginal infection.  There is nothing in the evidence of record to suggest the in service complaint of low back pain was attributable to a musculoskeletal origin. 

Then, in February 2015 the Veteran underwent a second VA examination.  See February 2015 VA Examination Report; March 2015 VA Addendum Medical Opinion.  Following examination, the VA examiner recorded diagnoses of degenerative arthritis and spinal stenosis with degenerative joint disease, degenerative disc disease, bulge at the L4-5, and anterolisthesis at the L5-S1 of the thoracolumbar spine.  

Based on the examination and a review of the claims file, the VA examiner concluded these conditions were less likely than not due to the Veteran's service, which included approximately 38 parachute jumps.  In support, the VA examiner noted the first diagnosis pertaining to the lumbar spine came in 2005.  According to the Veteran herself, she did not seek treatment for any lumbar spine condition post-separation until she began seeking treatment from the VA.  Further, there was no current medical literature showing that lumbar spinal stenosis with degenerative joint disease, degenerative disc disease, bulge, and anterolisthesis is the proximate cause of or source of aggravation of a cervical spine condition.

Instead, the VA examiner stated the claimed low back disabilities were most likely due to a strong genetic disposition to develop such conditions, natural aging, and escalation of her body mass index (BMI) with macromastia.  In support, the VA examiner pointed to her increased in BMI in 1991, 2008, and at the time of examination; 21, 31, and 36 respectively.  However, the VA examiner did not explain the relationship between the increasing BMI and macromastia and the claimed low back disabilities.  The VA examiner also did not expressly identify what her genetic predispositions were or reference any supporting evidence of record.  Id.; see also June 2009 VA Magnetic Resonance Imaging (MRI) of the Lumbar Spine (indicated a diagnosis of obesity alongside the diagnoses of lumbar degenerative disc disease, lumbar spondylosis and lumbar radiculopathy); 2009 VA Plastic Surgery Outpatient Treatment Note (recorded the Veteran experienced chronic low back pain associated with large pendulous breasts).

Further, the VA examiner opined "the claimed condition" was less likely than not proximately due the Veteran's service-connected cervical spine disability because it clearly and unmistakably existed prior to service.  See February 2015 VA Examination Report; March 2015 VA Addendum Medical Opinion.  As another matter, the VA examiner found it was not aggravated beyond its natural progression by her service.  In rendering this opinion, the VA examiner did not clarify which diagnosis existed prior to service, distinguish between whether it was a congenital defect or disease for VA compensation purposes, nor provided supporting rationale for this position.  

However, the Board notes in the Medical Opinion Summary of the VA Examination Report, the VA examiner acknowledged diagnostic tests conducted in 2005, 2011, and 2013.  Of note, the VA examiner noted the 2005 x-ray indicated congenital spinal stenosis.  Id.; see also December 2005 VA MRI of the Lumbar Spine (noted there was moderate paraspinal stenosis of the central and lateral side, which appeared to be of the congenital variety); November 2008 VA Emergency Department Evaluation and Management Note (noted a January 2006 MRI of the lumbar spine showed there was congenital spinal stenosis).

As congenital or developmental defects are generally not diseases or injuries within the meaning of applicable VA statutes and regulations, the Board needs a competent medical opinion addressing whether the congenital condition in question is a defect or disease.  If it is a "defect," which is defined as a structural or inherent abnormality which is more or less static in nature, the presumption of soundness does not apply and service connection must be denied unless the evidence establishes that a disability due to disease or injury that was incurred in service is superimposed on the congenital defect.  See VAOPGCPREC 82-90 (1990); see also 38 U.S.C.A. §§ 1111, 1132; see also 38 C.F.R. § 3.303(c).  

On the other hand, if it is a "disease," which is defined as a condition that is capable of improving or deteriorating, the presumption of soundness does attach if it was not was noted upon entry into service.  See 38 U.S.C.A. §§ 1111, 1132; 38 C.F.R. 
§ 3.303(c); see also Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009).  Here, if it is a congenital disease, the presumption of soundness attaches because no such condition was noted at the time of the Veteran's enlistment.  See October 1979 Report of Medical Examination; October 1979 Report of Medical History.  Thus, a competent medical opinion is also necessary to determine the proper adjudicative framework.

Although the Veteran was afforded two VA examinations with respect to the thoracolumbar spine, in June 2013 she underwent a neck/cervical spine VA examination.  See June 2013 Neck (Cervical Spine) VA Examination Report.  Among the diagnoses contained in the VA Examination Report is a diagnosis of "IVDS with radiculopathy of the left lower extremity C8-T1."  Although the diagnosis itself indicates involvement of the "left lower extremity," this diagnosis is noted as a diagnosis pertaining to the cervical spine and "C8-T1" denotes involvement of the lower radicular group of the upper extremity.  Id.; see also November 2013 Rating Decision (granting service connection for radiculopathy of the left upper extremity based on the June 2013 Neck (Cervical Spine) VA Examination Report).  Moreover, all pertinent findings during this examination relate to the upper extremities.  See June 2013 Neck (Cervical Spine) VA Examination Report.  

Nonetheless, the June 2013 VA examiner did opine that the "IVDS with radiculopathy of the left lower extremity" was a progression of the prior diagnosis and primarily due to the traumatic repetitive multiple parachute jumps in service.  Consequently, a competent medical opinion addressing the apparent inconsistency between the June 2013 VA examiner's findings and the February 2015 VA examiner's findings is necessary.

Given the above, another VA medical opinion is necessary to clarify the pertinent diagnoses, reconcile the discrepancies in the evidence of record, and provide an adequate rationale prior to the Board's readjudication of the claim.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (holding that to have probative value, a medical report must contain not only a clear conclusion with supporting data, but also a reasoned medical explanation connecting the two).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Return the Veteran's claims file to the February 2015 VA examiner for an addendum opinion regarding the claimed low back disability.  If the February 2015 VA examiner is unavailable, the addendum opinion should be rendered by another appropriate medical professional.  The need for another clinical evaluation is left to the discretion of the medical professional offering the addendum opinion.

After reviewing the complete record, the examiner should:

a. Identify all current and prior diagnoses of a low back condition.

b. Reconcile all identified prior diagnoses of a low back condition, to include the diagnosis of thoracolumbar scoliosis by the March 2010 VA examiner.  If any prior diagnosis cannot be reconciled with the current findings, explain why. 

c. For any diagnosis with a congenital etiology, distinguish whether it is a "defect" or "disease" for VA compensation purposes. 

The examiner is invited to discuss the December 2005 VA MRI of the Lumbar Spine, which noted moderate paraspinal stenosis of the central and lateral side, which appeared to be of the congenital variety; and November 2008 VA Emergency Department Evaluation and Management Note, which noted a January 2006 MRI of the lumbar spine showed there was congenital spinal stenosis.

d. For any diagnosis of a congenital defect, the examiner should opine as to whether there is a disability due to a disease or injury in service that is superimposed on the congenital defect.

e. For any diagnosis of a congenital disease, the examiner should:

i. Opine as to whether it clearly and unmistakably existed prior to service.

ii. If so, opine as to whether the evidence of record clearly and unmistakably shows that it was not aggravated during her service. 

iii. The examiner is reminded that clear and unmistakable means obvious and undebatable.

f. For all other diagnoses, opine as to whether it is at least as likely as not (50 percent probability or greater) caused by or otherwise related to her service, to include, generally, her airborne training as well as the July 1982 in-service injury during airborne training.  

If the diagnosis is due to a non-service related etiology, such as a genetic disposition, the aging process, escalation of BMI, or macromastia, explain why.

The examiner is invited to discuss the July 1982 Consultation Sheet and July 1982 Chronological Record of Medical Care documenting her in service injury during airborne training. 

g. Reconcile the June 2013 VA examiner's conclusion that the "IVDS with radiculopathy of the left lower extremity" was a progression of the prior diagnosis and primarily due to the traumatic repetitive multiple parachute jumps in service, which is contained in the June 2013 Neck (Cervical Spine) VA Examination Report, with the current findings. 

h. The examiner should note the lack of evidence demonstrating in service treatment, while probative, cannot serve as the sole basis for a negative finding.  The examiner is asked to consider and weigh her lay statements in making the determination as to whether a nexus exists between the claimed low back disability and her service, to include the July 1982 injury during airborne training.

i. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached.  The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it.

2. Thereafter, readjudicate the issue on appeal.  If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case.  She and her representative should be afforded a reasonable time period in which to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal.  38 C.F.R. § 20.1100(b) (2016).
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