Citation Nr: 18160528
Decision Date: 12/27/18	Archive Date: 12/26/18

DOCKET NO. 09-30 193
DATE:	December 27, 2018
Entitlement to service connection for a low back disability is remanded.
The Veteran served on active duty from July 1967 to July 1969.  This matter comes before the Board on appeal from January 2008 and February 2008 Regional Office (RO) rating decisions.  In February 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge.
In a February 2018 Order, the United States Court of Appeals for Veterans Claims (Court) granted a January 2018 Joint Motion for Partial Remand and remanded the case back to the Board.
Entitlement to service connection for a low back disability is remanded.
The Joint Motion noted that the Veteran’s Social Security Number has changed and that VA had only requested records under the older number.  (As noted in the Joint Motion, the old number begins with “432,” while the new number begins with “423.”)  On remand, the RO should request the Veteran’s records from the Social Security Administration using his newer Social Security Number (beginning with “423.”)
As he described at his February 2013 Board hearing, the Veteran essentially contends that he has a current back disability as a result of injuries he suffered during service.
Specifically, the Veteran testified at his February 2013 Board hearing that he first strained his back when a pole fell on his back while he was performing his duties as a lineman.  He testified that he never reported this injury.  He stated on his February 2007 claim form that he “had a telephone pole fall on me while I was in Vietnam.  I have had pain in my back ever since the injury but it has worsened through the years.”  He testified at his February 2009 DRO hearing that this injury occurred when he was in Qui Nhon.
Second, the Veteran testified at his Board hearing that he got into an argument with another servicemember, “and he hit me across the back with a two-by-four.”  He reported that the other person had swung it like a baseball bat and had hit the Veteran in the middle of the back.  This latter occurrence is recorded in the Veteran’s service treatment records.
Service treatment records reflect that the Veteran’s spine was found to be clinically normal at the times of his January 1967 pre-induction and February 1969 separation examinations.  He expressly denied any history of, or current, recurrent back pain on his January 1967 pre-induction and February 1969 separation medical history reports.  The October 1968 service treatment record notes an impression of “[a]brasions of back.”  The area was cleansed and dressed and the Veteran was directed to return the next day.  He did so, and his bandage was changed.  There is no indication that he sought any other treatment for his back while in service.
Post-service medical records reflect that the Veteran sought treatment for lower back pain of one month’s duration in October 2002.
He underwent back surgery for lumbar radiculopathy and segmental instability secondary to congenital spondylolisthesis at L5-S1 in July 2003.
An April 2007 VA medical record notes that the Veteran “worked for over 16 years at TVA.  He has worked various other jobs until he hurt his back and is on disability.”
The Veteran underwent a VA examination in April 2009.  The resulting examination report reflects review of the record and interview and examination of the Veteran.  Based on the above, the examiner diagnosed degenerative disc disease and degenerative joint disease of the lumbar spine.  She opined that this disability was not caused by or a result of the abrasion injury to the low back during active duty.  As a rationale, she noted that the Veteran’s injury was an abrasion, which would not have caused degenerative disc disease or degenerative joint disease.  She noted that this is the only documented treatment for a condition involving the back during active duty and that there are no documented visits or further treatment.
The Veteran testified at his February 2013 Board hearing that, when he first got out of service, he applied for a job at a metal company, but he did not get the job.  He stated that he took a physical and was told that “my spine was crooked.  I had a crooked sternum.”  He testified that “my back injury, it’s been bothering me ever since … that happened.”  He testified at his February 2009 DRO hearing that he did not believe he could have a crooked spine, “because I just had come out of the military.”  He stated that he “didn’t really begin to think about that until my later years, my back started messing up and started hurting.”  He noted that he had had a disc fused in his back in July 2000.
The Joint Motion directs the Board to obtain a new examination that “address[es] whether there is a relationship between Appellant’s current low back disability and his documented congenital spondylolisthesis condition” and that addresses “the current status of Appellant’s low back disability.”  The Board notes that congenital or developmental defects are not diseases or injuries, and therefore they may not be service-connected.  38 C.F.R. § 3.303(c), 4.9; see also Winn v. Brown, 8 Vet. App. 510, 516 (1996).  However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability.  VAOPGCPREC 82-90 (July 18, 1990).  
The Joint Motion also directed “that the examiner, on further examination, shall address Appellant’s lay statements that he was told during a 1970 employment physical that his ‘spine was crooked.’”  A remand that addresses these questions is necessary.
The matter is REMANDED for the following action:
1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained in August 2018.
2. Contact the Social Security Administration (SSA) and request the Veteran’s complete SSA records, including any administrative decision(s) on his application for SSA disability benefits and all underlying medical records that are in SSA’s possession.  The request must include the Veteran’s new Social Security Number, which begins in “423.”  A copy of any request(s) sent to SSA, and any reply, to include any records obtained from SSA, must be included in the claims file.
3. Schedule the Veteran for an appropriate VA examination for the claim of entitlement to service connection for a low back disability.  The Veteran’s file should be made available for review by the examiner.  The examiner should review the file and this fact should be noted in the accompanying medical report.  
The VA examiner is requested to identify all of the Veteran’s current low back diagnoses.  For all current diagnoses: 

(a)	Is it at least as likely as not that any current low back disability is related to his documented congenital spondylolisthesis condition?  Is it at least as likely as not that any current low back disability was superimposed over the congenital or developmental defect during service?
In answering these questions, the examiner should discuss the Veteran’s lay statements that he was told during a 1970 employment physical that his “spine was crooked.”  
The examiner should set forth all examination findings, along with a complete rationale for the conclusions reached.

Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Elizabeth Jalley, Counsel

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