Citation Nr: 18143508
Decision Date: 10/19/18	Archive Date: 10/19/18

DOCKET NO. 13-00 092A
DATE:	October 19, 2018
REMANDED
Entitlement to service connection for a low back disorder, to include degenerative disc disease (DDD) is remanded.
REASONS FOR REMAND
The Veteran served on active duty from October 1959 to January 1962. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In February 2017, the Board denied service connection for a low back disorder. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (CAVC) and in a March 2018 memorandum decision, CAVC vacated the February 2017 Board decision and remanded the case to the Board for further development and readjudication.
Remanded Issue
In accordance with the March 2018 memorandum decision, the Board is remanding the claim to obtain a VA examination that adequately considers the Veteran’s medical history Specifically, CAVC found that the Board erred in relying on a previous VA examination, dated June 2016, as the examiner failed to adequately address the Veteran’s in-service medical history. 
According to CAVC, the Veteran’s service treatment records show that the Veteran complained of back pain during his first month of service, which he said had bothered him for the past year. The Veteran continued to complain of back pain for five months thereafter, which medical examiners noted as progressing. 
CAVC noted that although the evidence appears to reflect that for more than a year the Veteran had worsening back pain in service, the June 2016 VA examiner merely concluded that the Veteran’s back disability was not aggravated by service because “lumbar strains in general typically resolve in several weeks to months without any residuals.” Based on the aforementioned, remand is required for the Board to obtain a VA examination that adequately considers the Veteran’s medical history.
The matter is REMANDED for the following action:
1. Schedule the Veteran for a VA examination to determine if he has a back disability that was incurred in or aggravated by his military service. The claims file and a copy of this remand must be made available to the examiner for review in conjunction with the examination. All indicated testing, if necessary, should be conducted.
After a review of the examination findings and the entire evidence of record, the examiner must answer the following questions:
(a)	Does the Veteran’s congenital sacralization of the fifth lumbar vertebra constitute a congenital defect or a congenital disease? (Generally, a congenital abnormality that is progressive in nature and subject to improvement or deterioration is considered a “disease.” A “defect” is a hereditary condition that cannot change. O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014)). 
(b)	If a defect, was it subject to a superimposed disease or injury during active duty service resulting in additional disability?
(c)	If a disease, did the Veteran have this disease prior to entering military service in October 1959? If so, did this condition increase in severity during his active military service? If there was an increase in severity, is it “undebatable” this increase in severity was due to the natural progression of the disability?
The examiner should comment on the Veteran’s medical history, specifically his service treatment records (including those dating from November 1959 to July 1960), which document the Veteran’s complaints of back pain for the past year and the medical examiner’s notations that the Veteran’s back pain mostly appeared when laying down.
The claims folder must be made available to the examiner for review of pertinent documents therein, and 
 
the examination report must reflect that such a review was conducted.
 
M. H. HAWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Norwood, Associate Counsel