Citation Nr: 1319405 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 08-30 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: John Berry, Esq. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to July 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The claim was remanded by the Board most recently in June 2012. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND Additional development is needed in this case, specifically to address several medical issues that remain outstanding. The Veteran seeks service connection for a back disorder. He has not limited his claim to any specific segment of the spinal column. Every Veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities or disorders 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.A. § 1111. The application of the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012). There were no spine defects, infirmities or disorders noted at the time of the Veteran's entry into active duty. Service treatment records reveal that he first sought treatment for his back in October 1992, when he complained of low back pain after lifting a battery out of a buoy pocket, causing injury to his back. He was assessed with lumbosacral strain/sprain. On two occasions in June 1994, the Veteran was seen with complaint of low back pain for 24 hours after lifting a door. He was assessed with minor muscle spasm and mechanical musculoskeletal low back pain. Scoliosis and lumbosacral spine series were ordered and were conducted in July 1994. The request noted recurrent low back pain for two years. Lumbosacral spine films, including both oblique views, showed a slight lumbar dextroscoliosis and a normal lordosis. The vertebral bodies, intervertebral disc spaces, pedicles, spinous and transverse processes appeared intact with some minimal lipping on the inferior anterior aspect of the body of L5. There was no evidence of spondylolysis or spondylolisthesis. The scoliosis study revealed that the vertebral bodies and intervertebral disc spaces appeared intact, as did the pedicles, spinous and transverse processes. There was minimal s-shaped thoracic scoliosis with straightening of the normal thoracic kyphosis. A normal lumbar lordosis with a slight dextroscoliosis was also noted. On follow up in July 1994, the Veteran reported injuring his back approximately two years prior and experiencing various problems with his back since then, usually dull, persistent pain after lifting heavy objects. He indicated that his condition had significantly improved since his last visit and was assessed with resolving mechanical low back pain. At the time of his January 1995 discharge examination, the Veteran noted recurrent back pain for two years. The Veteran has undergone two VA examinations, both conducted pursuant to the Board's prior remands and both conducted by the same examiner. As neither fully addresses pertinent medical issues that require resolution, they are not adequate. The medical issues that require resolution will be discussed more fully below. As an initial matter, the in-service July 1994 scoliosis series revealed minimal s-shaped thoracic scoliosis with straightening of the normal thoracic kyphosis. During the July 2012 VA examination, an x-ray of the Veteran's lumbar spine was obtained, but not one of his thoracic spine. This must be rectified on remand. The VA examiner initially reported that the Veteran's minimal thoracic scoliosis noted in service was a genetic condition. In the absence of contemporaneous thoracic spine x-rays, it is unclear whether this condition currently exists. The examiner subsequently reported that current x-rays show lumbar scoliosis and reported that per review of medical literature, the cause of scoliosis is unknown, that curvature most often occurs with a growth spurt just before puberty, and that scoliosis is either idiopathic, congenital or genetic. Service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the evidence as a whole establishes that the familial conditions in question were incurred or aggravated during service. VAOPGCPREC 82-90 (July 18, 1990); see also VAOGC 8-88 (Sept. 29, 1988) (reissued as VAOPGCPREC 67-90 (July 18, 1990) (noting that diseases of hereditary origin can be incurred or aggravated in service if their symptomatology did not manifest itself until after entry on duty and reasoning that the mere genetic or other familial predisposition to develop the symptoms, even if the individual is almost certain to develop the condition at some time in his or her lifetime, does not constitute having the disease). With regard to congenital or developmental defects, service connection may not be granted for a defect but may be granted for disability which is shown to have resulted from a defect which was subject to a superimposed disease or injury during service. VAOPGCPREC 82-90 (July 18, 1990). The VA examiner has not specifically addressed whether the current lumbar scoliosis is a defect or disease. This must be rectified on remand. On remand, the VA examiner must also specifically address whether any current thoracic scoliosis is a defect or disease. Recent VA treatment records should also be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Sioux Falls VA Health Care System, dated since September 2007. 2. Schedule the Veteran for a VA examination of his spine, preferably by an orthopedist. If an orthopedist is not available, an examiner different from the one who conducted the December 2011 and July 2012 VA examinations must conduct the examination. The claims folder, to include a copy of this remand, must be made available to and reviewed by the examiner in conjunction with the examination report. All necessary tests should be conducted. An x-ray of the Veteran's thoracic spine must be obtained. a. The examiner should identify all current disorders of the thoracic and lumbar spine segments. b. For each thoracic and lumbar spine segment diagnosis, and for the previously-diagnosed degenerative disc disease and lumbar scoliosis, the examiner should indicate whether it had its onset prior to service, during military service from June 1982 to July 1995, or after service. c. For any thoracic and/or lumbar spine segment disorder (to include the previously-diagnosed degenerative disc disease and lumbar scoliosis) that had its onset prior to active service, the examiner should indicate whether it is a congenital or developmental defect versus disease. i. If any pre-service thoracic and/or lumbar spine segment disorder (to include the previously-diagnosed degenerative disc disease and lumbar scoliosis) is a disease rather than a defect, the examiner should provide an opinion as to whether there is any factual evidence which supports a conclusion that it underwent an identifiable permanent increase in severity during military service that was beyond its natural progression? ii. If any pre-service thoracic and/or lumbar spine segment disorder (to include the previously-diagnosed degenerative disc disease and lumbar scoliosis) is a congenital or developmental defect, the examiner should provide an opinion as to whether it was subject to a superimposed disease or injury during service, and if so, describe the resultant disability. d. For any thoracic and/or lumbar spine segment disorder (to include the previously-diagnosed degenerative disc disease and lumbar scoliosis) that had its onset after active service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the disorder is related to any in-service disease, event, or injury, including the 1992 and 1994 injuries noted in the service treatment records. A rationale for any opinion expressed should be provided. 3. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 4. Finally, readjudicate the claim. If the benefit sought on appeal is not granted, issue an updated supplemental statement of the case (SSOC). The Veteran and his representative should also be given an appropriate amount of time to respond to it. The appellant 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 that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).