Citation Nr: 18146750 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 11-00 455 DATE: November 1, 2018 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1998 to March 2007. This appeal comes before the Board of Veterans’ Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Jurisdiction was subsequently transferred to the RO in Houston, Texas. In its September 2017 Remand, the Board instructed the RO to schedule the Veteran for a VA examination to ascertain the nature and etiology of any thoracolumbar spine disability. Specifically, the Board asked the examiner to identify all currently diagnosed disabilities affecting the Veteran’s thoracolumbar spine and respond to a series of questions meant to ascertain the following: (1) whether the Veteran’s scoliosis was a congenital disease or a congenital defect; (2) if found to be a defect, whether that defect was subject to a superimposed disease or injury during service that resulted in a current disability; (3) if found to be a disease, whether it was undebatable that the disease preexisted the Veteran’s service and whether there was an increase in the severity of that disease during service; (4) if found to be a preexisting disease that had increased in severity during service, whether it was undebatable that any increase was due to the natural progression of the disease, as opposed to a chronic permanent worsening of the underlying pathology; and (5) if determined to not be congenital or preexisting, whether any other diagnosed back disability manifested during or was otherwise related to military service. In October 2017, the Veteran was afforded a VA spine examination. During the evaluation, the VA examiner diagnosed the Veteran as having degenerative arthritis of the spine and a thoracolumbar spine sprain. The examiner also noted that the Veteran had scoliosis of the thoracolumbar spine that predated his military service. X-rays of the thoracic spine and lumbar spine showed spondylosis and scoliosis of both spine segments. After reviewing the electronic claims file and conducting an in-person evaluation, the October 2017 VA examiner provided a medical opinion addressing the etiology of the Veteran’s thoracolumbar spine disability. The Board has carefully reviewed the October 2017 VA examiner’s medical opinion and finds that additional clarification is necessary before the issue on appeal can be properly adjudicated. First, the examiner indicated that the Veteran’s “adolescent scoliosis” was “congenital” as it had developed during his childhood. While the examiner essentially indicated that there was clear and unmistakable evidence that the Veteran’s scoliosis existed prior to his military service, the examiner did not distinguish whether the Veteran’s scoliosis was a “defect” or “disease.” Distinguishing between these two characterizations is important because “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a structural or inherent abnormality which is more or less static in nature that is not considered capable of improving or deteriorating. Moreover, the examiner provided conflicting statements. For example, the examiner indicated that “the Veteran’s scoliosis was less likely than not subject to a superimposed disease or injury during service that resulted in a current disability.” The examiner also indicated that there was no increase in the severity of preexisting scoliosis during service or that the Veteran’s scoliosis was aggravated beyond normal progression during service. These concurrent findings make it difficult for the Board to determine whether the examiner considered the Veteran’s congenital scoliosis to be a “defect” or “disease.” Even if the Board infers from this statement that the examiner considered the Veteran’s scoliosis to be a congenital “defect,” the Board notes that the examiner’s statement about no superimposed disease or injury does not adequately address the Veteran’s contentions that he developed “back pain in service due to the physical demands required during service as a gunner [and] eight years in the [United States] Marines carrying heavy loads.” See October 2017 VA examination report. The examiner did not explain why these physical demands did not aggravate the Veteran’s preexisting scoliosis. Second, the examiner provided an opinion that the claimed back condition was “less likely than not” incurred in or caused by the Veteran’s military service. It remains unclear whether this opinion was addressing the other diagnosed back disabilities – degenerative arthritis of the spine and a thoracolumbar spine sprain. However, the examiner’s supporting rationale only consisted of the observation that his back condition was acute during service and that there was no evidence of chronicity of care. Again, the examiner did not indicate whether there was any causal relationship between these current diagnoses and the physical demands that the Veteran experienced during service. Third, the examiner noted that “mild [degenerative joint disease]” is common in scoliosis as a normal part of the scoliosis. The examiner cited a December 2006 radiology report indicating that the Veteran had scoliosis “without acute process or significant degenerative change.” The examiner further noted that x-rays taken in October 2017 showed spondylosis of the spinal column. However, the examiner did not clearly indicate whether the examination findings of degenerative arthritis of the spine were a separate lumbar spine disability that developed years after service (and which may be attributable to service) or whether they simply represent a progression of his preexisting scoliosis. Under these circumstances, the RO must obtain a supplemental medical opinion that addresses and/or clarifies the issues discussed above. This matter is REMANDED for the following actions: 1. Contact the Veteran and ask him to identify whether there are any outstanding VA or private medical records reflecting treatment for his claimed back disability. If such records are identified, then obtain those records and associate them with the electronic claims file. To expedite this action, the Veteran is encouraged to submit any additional VA or private medical records in his possession. 2. Obtain an addendum medical opinion from the same examiner who conducted the October 2017 VA spine examination. If that examiner is not available, another appropriately qualified examiner may render the opinion. Another in-person spine examination is not required unless deemed appropriate by the examiner. Following a review of the evidence of record, the VA examiner should answer the following questions: Regarding the Veteran’s diagnosed scoliosis: (a) Is the thoracolumbar spine disability a congenital disease or a congenital defect? To assist the examiner, for VA adjudication purposes, “disease” generally refers to a condition considered capable of improving or deteriorating, whereas “defect” generally refers to a structural or inherent abnormality which is more or less static in nature that is not considered capable of improving or deteriorating. (b) If the thoracolumbar spine disability is a congenital defect, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the defect was subject to a superimposed disease or injury during service that resulted in a current disability. Although the service treatment records do not explicitly show that the Veteran injured his back during service, the examiner should address the Veteran’s contentions that he developed “back pain in service due to the physical demands required during service as a gunner [and] eight years in the [United States] Marines carrying heavy loads.” See October 2017 VA examination report. Additionally, the Board notes that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Saunders v. Wilkie, No. 2017-1466, 2018 U.S. App. LEXIS 8467 (Fed. Cir. Apr. 3, 2018) (c) If the thoracolumbar spine disability is a congenital disease, the examiner should state whether it is undebatable that the disease preexisted the Veteran’s service. (d) If the thoracolumbar spine disability is a congenital disease, the examiner should state whether there was an increase in the severity during service. (e) If the evidence reflects an increase, the examiner should indicate whether it is undebatable that any increase was due to the natural progression of the disorder, as opposed to a chronic permanent worsening of the underlying pathology. Regarding the Veteran’s diagnosed degenerative arthritis of the spine and a thoracolumbar spine sprain: (f) If the thoracolumbar spine disability is not congenital and/or did not preexist service, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that the thoracolumbar spine disability, diagnosed as degenerative arthritis of the spine and a thoracolumbar spine sprain, manifested during, or is otherwise etiologically related to, the Veteran’s military service, including the physical demands of his service. The examiner should clearly indicate whether the examination findings of degenerative arthritis of the spine and/or x-rays showing spondylosis were a separate lumbar spine disability that developed years after service (and which may be attributable to service) or whether they simply represent a progression of his preexisting scoliosis. The examiner must provide adequate supporting rationale for all medical conclusions reached. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. L. Marcum, Counsel