Spina Bifida and the Record Before the Agency

Spina Bifida and the Record Before the Agency

The case of L E. Johnson v. Eric K. Shinseki, Opinion Number 07-0987, decided January 21, 2010, affirmed a denial for service connection for a back injury.

There were two major issues. The first revolved around the use of evidence of back pain during an ineligible period to show a chronic disease or continuity of symptomatology. The second involved whether a medical examination was inadequate in part because it was not signed.

Regarding the first, the veteran had served two periods. During the second, he was discharged under less than honorable conditions. Therefore, a prior decision had found he was entitled to any conditions arising from the first period of service but ineligible for any conditions arising during the second.

The veteran sought to use evidence of a back condition during his second period of service and later post-service evidence to show a continuity of symptoms or a chronic disease that would establish the disability (back condition) was incurred during his first period of service. The VA agreed that “evidence from the ineligible period of service of continuity of symptoms can suffice to establish incurrence of a disability during the prior period of eligible service.” However, the VA disagreed with the argument that “evidence of a chronic disease during a period of ineligible service may be considered by the Board to establish that the chronic disease was initially occurred during a prior, eligible period of service”.

The Court side-stepped answering this question by reaching into the merits of the back condition. Specifically, the BVA found the back pain was spina bifida. Spina bifida is a congenital defect or developmental disorder for which benefits may not be awarded according to the Courts earlier decision in Quirin v. Shinseki, 22 Vet. App. 390, 393 (2009). Since the Court determined the back pain was related to spina bifida and benefits could not be granted for such a congenital or developmental defect, it did not have to decide the limits of using evidence of chronicity from a a disqualified period.

Regarding the medical examination, the veteran had argued that the examiner did not specifically opine whether the developmental back pain disability was aggravated by eligible service. The Court essentially determined it did not matter because “spina bifida cannot be aggravated because it is a congenital defect.” Additionally, the Court also essentially found the physician had said enough, i.e., the veteran’s “current back disability was not related to his eligible service.”

The veteran also argued the examination should not have been treated as evidence because it was not signed by the physician. Here, the Court said the veteran did not submit enough clear evidence to defeat the presumption of regularity because he did not show that the report was not transmitted via an accepted VA internal computer system.

A concurring opinion by Judge Hagel pointed out that it is absurd to expect the veteran to show the report was not transmitted via the VA internal computer system because the only one with access to the system was the VA. To Judge Hagel the presumption of regularity was defeated but then rescued by VA filings of evidence that the report was properly transmitted via the internal computer system. He got this VA generated evidence into the Record Before the Agency by taking a liberal reading of what constituted the record and finding the “VA-generated documents were constructively ‘before the Secretary and Board’” because “the transmittal documents introduced by the Secretary here were clearly generated by the VA during the pendency of Mr. Johnson’s claim”.

This case makes clear that benefits will not be granted for congenital or development disorders. Judge Hagel’s occurrence might also lay a framework regarding how to get information that isn’t part of the Record Before the Agency to the Court.

Decided by Kasold, Hagel and Schoelen, Judges.