Single Judge Application, Aggravation of Congenital Defects, Quirin, 22 Vet.App. at 394

Excerpt from decision below:
"According to the General Counsel's opinion, many congenital defects "can be subject
to superimposed disease or injury . . . [if] superimposed disease or injury does occur, service-connection may indeed be warranted for the resultant disability." VA Gen. Coun. Prec. 82-90; see also Quirin, 22 Vet.App. at 394 (discussing the General Counsel's opinion).
The Board recognized the General Counsel's opinion as a possible theory
for service connection, but dismissed it in the appellant's case in part because "the VA examiner found that the [appellant's] current low back disability was unrelated to his military service." R. at 10. While the Board's summary of the examiner's opinion is accurate, the examiner never discussed the possible congenital nature of the appellant's disorder, nor did she discuss possible aggravation of a congenital defect.2
The Secretary attempts to navigate around this deficiency in a few ways.
First, the Secretary states that the examiner "weighed" the appellant's October 2005 MRI report, including the portion noting that his disorder may be congenital. Secretary's Br. at 9. The examiner appears to have at least reviewed the findings in the MRI report. R. at 174. However, the examiner's recitation of the
report's findings includes no mention of the possible diagnosis of a congenital disorder. Id. Also, she did not discuss the MRI report in her statement of rationale
supporting her opinion, so there is no way to determine how the report's findings impacted her ultimate opinion.
The Secretary next argues that, contrary to the appellant's assertions,
the examiner did
consider the possible aggravation of a congenital disorder. Secretary's Br.
at 14. The Secretary argues that the examiner "specifically noted that [a]ppellant's 'current x-ray shows minimal osteophyte formation. Osteoarthritis would not be associated with a muscle sprain or st[r]ain limited to 4 days['] duration.'" Id. (quoting R. at 177). Thus, the Secretary argues, "the examiner indeed offered her opinion that [a]ppellant's current disability was not
aggravated by his in-service back strains." Id.
Nevertheless, the examiner did not discuss congenital disorders or
aggravation. There is

2. The Board stated that both the VA examiner and the private physician found
that the appellant's low back disability could be congenital. R. at 10. While the
private physician certainly raised the possibility of a congenital condition, the Court can find no evidence that the VA examiner did the same.
7

simply no evidence that, when she stated that it is less likely as not
that the appellant's current disability was "caused by or a result of" his service (R. at 176), she considered anything beyond a direct relationship between the appellant's in-service injuries and his current condition. Even if she
did, she is required to adequately explain the basis for her findings.
Despite the Secretary's assertions, the Court finds that the examiner's opinion contains no rationale concerning a possible aggravation of a congenital defect to support her conclusion that the appellant's in-service injuries and current back condition are unrelated. Therefore her opinion is inadequate."

============================

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4076
JEFFREY W. VANOVER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
SCHOELEN, Judge: The appellant, Jeffrey W. Vanover, appeals through
counsel a July 16,
2009,BoardofVeterans'Appeals(Board)decisionthatdeniedhim entitlementto
serviceconnection
for a low back disability. Record of Proceedings (R.) at 3-11. This appeal
is timely, and the Court
has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§
7252(a) and 7266(a).
Single-judge disposition is appropriate. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
following reasons, the Court will vacate the Board's decision and remand
the matter for further
proceedings consistent with this decision.
I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Navy from July 1998 until
May 2002. R. at
206. The appellant's service entrance medical examination indicates that
his spine was normal when
he entered service. R. at 209-12. In December 1999, the appellant was seen
in a Naval emergency
department for a back strain. R. at 151, 154-55. The appellant reported
that he bent over while in
the shower and heard a "pop[p]ing noise" in his lower back. R. at 154. The
appellant experienced


throbbing pain as well as radiating pain while walking. Id. He was
prescribed medication to
alleviate his pain and instructed to apply heat to the area. Id. He
returned to full duty. R. at 155.
In October 2001, the appellant reported for care at the medical department
aboard the U.S.S. Kitty
Hawk complaining of lower back pain that struck while he was attempting to
pass through a
"modified Zebra hatch." R. at 152-53. Medical records indicate that the
appellant's pain was
centered on the right side of the L-5 area of his back. R. at 153. His
service separation medical
examination, however, indicates that his spine was normal at the time of
his discharge. R. at 223-30.
In April 2005, the appellant filed a claim for compensation for a low back
disorder. R. at
196-205. In his claim, the appellant stated:
Prior to service entry there were no back issues. Being assigned to an
aircraft carrier
as a hull technician involves heavy equipment lifting throughout the day
such as
welding machines, air tanks, etc. It also requires repair work in awkward
positions
in cramped spaces. My back was repeatedly injured under these conditions,
which
caused permanent damage. Initial injuryNext Hit oc[c]urred in shower after
carrying heavy
items from the ship[']s engine room.
R. at 202.
In October 2005, the appellant received a lumbosacral spine magnetic
resonance imaging
(MRI) examination from a private physician. R. at 156. According to the
examination report, the
appellant was suffering from low back pain and right lower extremity
radicular pain. Id. The author
of the report further stated:
Most significant findings are probably at the L5-S1 level with a superior
disc
extrusion identified. There is associated slight deformity of the emerging
right S1
nerve root. [] There is asymmetry of the lamina at L5-S1, which may be
congenital.
A posttraumatic cause is thought to be less likely but cannot be excluded.
Id.
In January2007, the appellant was provided a VA medical examination
concentrating on his
spine. R. at 164-77. The examiner diagnosed the appellant with a "[h]
erniated L5-S1 disc with
slightlydisplaced right S1 nerve root posteriorly." Theexaminer opined
that the appellant's disorder
is "less likely as not . . . caused by or a result of" his in-service low
back pain. R. at 176. In March
2007, the VA regional office denied entitlement to service connection for
a low back condition. R.
at 159-62. In February 2008, the appellant appealed to the Board. R. at 95-
99.
2


The Board, in its July 16, 2009, decision here on appeal, denied the
appellant's claim for
serviceconnection for a low back disability. The Board found that the
appellant's disabilitywas "not
incurred in or aggravated by active service." R. at 4. The Board found the
January 2007 VA
examination report "to be the most persuasive evidence of record as to
whether or not the
[appellant's] low back disability is related to service." R. at 10. The
Board found that "there is no
contrarymedical evidence of record linking the [appellant's] low back
disabilityto service." Id. The
Board concluded that the only evidence in support of the appellant's claim
was his own lay
statements. Id. The Board found that his lay statements are entitled to "
some probative weight," but
rejected his assertions of continuity of symptomatology after service
because they were not
accompanied by "medical evidence relating a current disability to that
symptomatology." R. at 11.
Thus, the Board concluded that the VA examiner's opinion is more probative
than the appellant's lay
statements.
B. Arguments on Appeal
The appellant first argues that the January 2007 VA examination is
inadequate. Appellant's
Brief (Br.) at 6-15; Reply Br. at 4-6. The appellant supports this
argument by making a number of
assertions. Among those, the appellant asserts that the examiner's
clinical findings and her opinion
are contrary, the examiner failed to consider how his in-service back
injuries contributed to his
present condition, including whether they aggravated his present condition,
and her determinations
are conclusory. Appellant's Br. at 9-15; Reply Br. at 4-6.
The appellant next argues that the Board failed to adequately consider his
lay testimony and
failed to determine whether his statements are credible. Id. at 16-17. The
appellant also disputes
the Board's findings concerning the October 2005 private medical opinion.
Id. at 17-19. Finally, the
appellant alleges that the Board failed to provide an adequate statement
of reasons or bases for its
decision. Id. at 19-23; Reply Br. at 6-7.
The Secretary argues that the January 2007 VA examiner supported her
opinion with an
adequate explanation. Secretary's Br. at 7-14. The Secretary alleges that
the appellant improperly
supplants his own opinion for that of the examiner and mischaracterizes
the examiner's findings.
Id. at 9-10, 12. The Secretary also asserts that the examiner did in fact
opine as to a possible in-
service aggravation of a congenital disorder in the appellant's back. Id.
at 13-14.
3


Regarding the Board's statement of reasons or bases, the Secretaryfirst
asserts that the Board
appropriately considered and discussed the appellant's lay statements. Id.
at 14-16. The Secretary
contends that the Board "implicitly" found the appellant's statements to
be credible. Id. at 16. The
Secretary further argues that the Board adequately explained why it relied
more heavily on the
January 2007 VA medical examination than the October 2005 private MRI
report. Id. at 16-17.
Finally, the Secretary argues that the appellant's other allegations of
reasons or bases error are
without merit. Id. at 17-19.
II. ANALYSIS
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) incurrence or aggravation of a
disease or Previous HitinjuryNext Hit in service;
and (3) a nexus between the claimed in-service Previous HitinjuryNext Hit or disease and the
current disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995),aff'd per curiam, 78 F.
3d 604 (Fed. Cir. 1996)
(table). Pursuant to 38 C.F.R. § 3.303(b) (2011), a claimant may
establish the second and third
elements bydemonstrating continuity of symptomatology. See Barr v.
Nicholson, 21 Vet.App. 303,
307 (2007). Continuityofsymptomatologycan be demonstrated byshowing that (
1) a condition was
"noted" during service; (2) evidence of continuous symptoms after service;
and (3) medical, or in
certain circumstances, lay evidence of a nexus between the current
disability and the postservice
symptoms. Savage v. Gober, 10 Vet.App. 488, 495-96 (1997).
A. January 2007 VA Medical Examination
TheappellantarguesthattheJanuary2007VAexamination reportis inadequate.
Appellant's
Br. at 6-15; Reply Br. at 4-6. The Secretary's duty to assist includes "
providing a medical
examination or obtaining a medical opinion when such an examination or
opinion is necessary to
make a decision on the claim." 38 U.S.C. § 5103A(d)(1); see also Green v.
Derwinski, 1 Vet.App.
121, 124 (1991). This Court has held that a medical opinion is adequate "
where it is based on
consideration of the veteran's prior medical history and examinations and
also describes the
disability, if any, in sufficient detail so that the Board's 'evaluation
of the claimed disability will be
a fully informed one.'" Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (
quoting Ardison v. Brown,
4


6 Vet.App. 405, 407 (1994)). The opinion "must support its conclusion
with an analysis that the
Board can consider and weigh against contrary opinions." Id. at 124-25.
Whether a medical examination report is adequate is generallya finding of
fact that the Court
reviews under the "clearly erroneous" standard of review. See 38 U.S.C. §
7261(a)(4); Nolen v.
Gober, 14 Vet.App. 183, 184 (2000). Where an examination report is
inadequate, the Board should
remand the case to the RO for further development. Bowling v. Principi, 15
Vet.App. 1, 12 (2001)
(holding that the Board has a duty under 38 C.F.R. § 19.9(a), to remand a
case "[i]f further evidence
or clarification of the evidence or correction of a procedural defect is
essential for a proper appellate
decision"); see also Green, 1 Vet.App. at 124 (holding that remand is
appropriate where the Board
relied on an inadequate examination report); 38 C.F.R. § 4.2 (2011).
The examiner, in explaining her conclusion that the appellant's current
low back disorder is
"less likely as not . . . caused by or a result of" his in-service back
injuries, provided the following
rationale:
There is an undated, one[-]page [service medical] document . . . with a
diagnosis of
[lower back] pain most likely from Gluteus Medius and Lower Latissimus
Dorsi in
origin. This is a muscular diagnosis and there are no recorded discogenic
signs or
symptoms. He was treated with Flexeril and Motrin and Ice BID appropriate
for
muscle pain. Light [d]uty for 4 days. He then returned to full duty. This
was at least
three years prior to the MRI report of a herniated disc with S1 nerve root
compression. There is no record of continuum of care during these three
years. His
current x-ray shows [m]inimal osteophyte formation. Osteoarthritis would
not be
associated with a muscle sprain or strain limited to 4 days['] duration.
The
[appellant] brought records to subst[a]ntiate the claim of treatment and
diagnosis
given in Yakuska[,] Japan. Diagnosed with back strain and the [appellant]
was
released with Anaprox [prescription] and ordered back to full duty. [
Service entrance
h]istory and physical reports a motorcycle accident in the history.
R. at 176-77.
The Court agrees with the appellant that the examiner's report is
inadequate for several
reasons. First, most of the examiner's discussion centered around the
appellant's October 2001 back
Previous HitinjuryNext Hit, but she failed to discuss the impact or lack of impact of certain
reported incidents. For
example, regarding his December 1999 Previous HitinjuryNext Hit, the examiner merely restated
that the appellant was
diagnosed with a back strain, given a prescription, and ordered back to
full duty. Id. The examiner
also noted that the appellant was in a motorcycle accident. Id. She failed
to explain why that
5


information is important to her ultimate conclusions.
Next, in his reply brief, the appellant attacks the examiner's statement
that "there are no
recorded discogenic signs or symptoms." Id.; ReplyBr. at 4. The appellant
argues that the examiner
did not adequately explain this conclusion. Reply Br. at 4. According to
the October 2005 MRI
report, when the appellant reported for his MRI, his symptoms were low
back pain and right lower
extremity radicular pain. R. at 156. He was subsequentlydiagnosed with
discogenic disorders.1
Id.
According to his service treatment records, the appellant complained of "
radiating pain when
walking" after his December 1999 back Previous HitinjuryNext Hit. R. at 154. Likewise, after
his October 2001 Previous HitinjuryNext Hit,
the appellant complained of "pressure" on his right leg while walking. R.
at 152. The VA examiner
appears to have neither recorded nor discussed the appellant's complaints
of radiating pain and
pressure in service, nor did she explain how low back pain with radiation
into an extremity was
symptomatic of the appellant's discogenic disorders in October 2005 but
similar pain with radiation
was not symptomatic of discogenic disorders in service. The Court thus
finds that the examiner
should have supported her conclusion that the record contained no in-
service signs or symptoms of
discogenic disorders with a more thorough statement explaining why the
appellant's reported in-
service radiating pain and pressure did not constitute such a sign or
symptom.
Finally,theappellantfaultstheexaminerforfailingto opine whetherhis
militaryservicemay
have aggravated a congenital back condition. Appellant's Br. at 13; Reply
Br. at 6. According to
the October 2005 MRI report, the appellant's MRI demonstrated an asymmetry
of the lamina at L5-
S1 "which may be congenital." R. at 156. As the Board noted, service
connection may be granted
for congenital diseases, but is generally not available for congenital
defects. See 38 C.F.R. §§
3.303(c) and 4.9 (2011); see also Quirin v. Shinseki, 22 Vet.App. 390, 394 (
2009) (recognizing that
"congenital diseases, but not defects, may be service connected"); Winn v.
Brown, 8 Vet.App. 510,
516 (1996) (stating that congenital defects are not diseases or injuries
within the meaning of VA law
and regulation). However, VA's General Counsel issued an opinion
establishing an exception to this
Discogenic disorders are those "caused by derangement of an intervertebral
disc."
DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 527 (32d ed. 2012). The physician
reviewing the
MRI results diagnosed the appellant with "superior disc extrusion," "an
associated slight deformity
of the emerging right S1 nerve root," and "disc degeneration," among other
disorders. R. at 156.
6
1


general rule. See VA Gen. Coun. Prec. 82-90 (first released as 1-85 on
Mar. 5, 1985). According
to the General Counsel's opinion, many congenital defects "can be subject
to superimposed disease
or Previous HitinjuryNext Hit . . . [if] superimposed disease or Previous HitinjuryNext Document does occur, service-
connection may indeed be
warranted for the resultant disability." VA Gen. Coun. Prec. 82-90; see
also Quirin, 22 Vet.App.
at 394 (discussing the General Counsel's opinion).
The Board recognized the General Counsel's opinion as a possible theory
for service
connection, but dismissed it in the appellant's case in part because "the
VA examiner found that the
[appellant's] current low back disability was unrelated to his military
service." R. at 10. While the Board's summary of the examiner's opinion is accurate, the examiner never discussed the possible congenital nature of the appellant's disorder, nor did she discuss possible aggravation of a congenital defect.2
The Secretary attempts to navigate around this deficiency in a few ways.
First, the Secretary states that the examiner "weighed" the appellant's October 2005 MRI report, including the portion noting that his disorder may be congenital. Secretary's Br. at 9. The examiner appears to have at least reviewed the findings in the MRI report. R. at 174. However, the examiner's recitation of the
report's findings includes no mention of the possible diagnosis of a congenital disorder. Id. Also, she did not discuss the MRI report in her statement of rationale
supporting her opinion, so there is no way to determine how the report's findings impacted her ultimate opinion.
The Secretary next argues that, contrary to the appellant's assertions,
the examiner did
consider the possible aggravation of a congenital disorder. Secretary's Br.
at 14. The Secretary
argues that the examiner "specifically noted that [a]ppellant's 'current x-
ray shows minimal
osteophyte formation. Osteoarthritis wouldnot beassociatedwith a muscle
sprain or st[r]ain limited
to 4 days['] duration.'" Id. (quoting R. at 177). Thus, the Secretary
argues, "the examiner indeed
offered her opinion that [a]ppellant's current disability was not
aggravated by his in-service back
strains." Id.
Nevertheless, the examiner did not discuss congenital disorders or
aggravation. There is

2. The Board stated that both the VA examiner and the private physician found
that the appellant's low back disability could be congenital. R. at 10. While the
private physician certainly raised the possibility of a congenital condition, the Court can find no evidence that the VA examiner did the same.
7

simply no evidence that, when she stated that it is less likely as not
that the appellant's current disability was "caused by or a result of" his service (R. at 176), she considered anything beyond a direct relationship between the appellant's in-service injuries and his current condition. Even if she
did, she is required to adequately explain the basis for her findings.
Despite the Secretary's assertions, the Court finds that the examiner's opinion contains no rationale concerning a possible aggravation of a congenital defect to support her conclusion that the appellant's in-service injuries and current back condition are unrelated. Therefore her opinion is inadequate.
For the reasons stated above, the Court finds that the VA examiner failed
to adequately
describe the appellant's disorder and support her findings with rationale
detailed enough for the
Board to apply and weigh in rendering its decision. See Stefl, supra.
Therefore, the Board's finding
that the examiner's opinion is adequate is clearlyerroneous, and remand is
warranted. See 38 U.S.C.
§ 7261(a)(4); Nolen, Bowling, and Green, all supra.
B. Reasons or Bases
When deciding a matter, the Board must include in its decision a written
statement of the
reasons or bases for its findings and conclusions, adequate to enable an
appellant to understand the
precise basis for the Board's decision as well as to facilitate review in
this Court. See 38 U.S.C.
§ 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.
Derwinski, 1 Vet.App. 49,
56-57(1990). Tocomplywith this requirement,theBoardmust analyze
thecredibilityandprobative
value of the evidence, account for the evidence that it finds persuasive
or unpersuasive, and provide
the reasons for its rejection of any material evidence favorable to the
claimant. See Caluza, 7
Vet.App. at 506; Gilbert, 1 Vet.App. at 57. Given the Court's disposition
concerning the adequacy
of the January 2007 VA medical examination, the Board will have to
reconsider its decision and
substantiallyrecraft its statement of reasons or bases. However, there is
one point that is appropriate
for the Court to discuss at this juncture.
The Board found that a layperson like the appellant can "provide an
account of observable
symptoms," and that the appellant's statements are therefore "entitled to
some probative weight."
R. at 10-11. The Board also found, however, that "even when a veteran is
asserting continuity of symptomatology after service, there still must be medical evidence relating a current disability to that symptomatology." R. at 11 (emphasis added).
8


First, as the appellant notes, the Board never made any specific,
explicitly stated
determination about the credibility of the appellant's statements.
Appellant's Br. at 17. The
Secretary argues, however, that because the Board "implicitly" found the
appellant's statements to
be credible, "no credibility discussion was needed." Secretary's Br. at 16.
The Board, in its role as
fact finder, "is obligated to, and fully justified in, determining whether
lay evidence is credible in and
of itself." Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (
emphasis added). In this
case, the Board very obviously discussed the compentency of the
appellant's statements. See R. at
10-11. However, competency determinations do not stand in the place of a
discussion about
credibility. Layno v. Brown, 6 Vet.App. 465, 469 (1994) ("Compentency. . .
must be distinguished
from weight and credibility"). The lack of a credibility discussion by the
Board is error. The Court
is not willing to accept the Secretary's invitation to mitigate that error
by searching through the
Board's decision for some indication of a credibility determination by
implication. Therefore, the
Court finds the Board's statement of reasons or bases is inadequate based
on its failure to make a
credibility determination or record the credibility determination it did
make. See 38 U.S.C.
§ 7104(d)(1); Allday, Caluza, and Gilbert, all supra.
Turning to the Board's competency determination, the Board rejected the
appellant's lay
statements concerning his continuity of symptomatology, at least in part,
because his statements
"must" be supported by medical evidence, but were not. R. at 11. There is
no categorical
requirement that "a valid medical opinion" must exist to establish nexus.
Davidson, 581 F.3d at
1316. The Board's decision to use the absence of a medical opinion
supporting the appellant's lay
statements to reject those statements is error. As a consequence, the
Board's statement of reasons
or bases is inadequate. See 38 U.S.C. § 7104(d)(1); Allday, Caluza, and
Gilbert, all supra.
Remand is the appropriate remedy "where the Board has incorrectly applied
the law, failed
to provide an adequate statement of reasons or bases for its determination,
or where the record is
otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 (1998). On
remand, the Board should
reconsider the appellant's lay statements in accordance with the law set
out in this opinion and
provide an adequate statement of reasons or bases concerning decisions
about the credibility and
probative weight it assigns to those statements.
9


C. Other Arguments
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that "[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the
Board rule against him"). On remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims
remanded by the Court).

III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's July 16, 2009, decision is VACATED and the matter is REMANDED
to the Board for
further proceedings consistent with this decision.

DATED: August 10, 2011
Copies to:
John S. Berry, Esq.
VA General Counsel (027)
10