Citation Nr: 18149253 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-44 024 DATE: November 9, 2018 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2002 to July 2006 and from February 2010 to December 2010, with additional Reserve service. Entitlement to service connection for a back disability is remanded. The Veteran contends that his current scoliosis of the thoracic spine was caused or aggravated by his military service. The Board cannot make a fully-informed decision on the issue of entitlement to service connection for a back disability because the previous VA examination was inadequate. The September 2013 VA examiner provided a negative medical opinion; however, the rationale accompanying that opinion does not explain why or how the examiner was able to determine that the Veteran’s scoliosis is unlikely the result of his military service. The examiner also did not discuss whether the Veteran’s military service may have chronically worsened his scoliosis. The RO determined in September 2012 that the Veteran’s service treatment records for his active duty period from July 2002 through July 2006 are not available. As such, there is a “heightened duty” to assist in the development of the case. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991). The limited service treatment records that are available show that the Veteran complained of back pain in February 2010, at the beginning of his last period of active duty. On remand, the Veteran should be given a new in-person VA examination where the examiner can interview the Veteran to assist the examiner with the Veteran’s medical history during service. The matter is REMANDED for the following action: Schedule the Veteran for an in-person VA examination to determine the current nature and likely etiology of any back disability. Forward the claims file and copies of all pertinent records to an appropriate VA examiner to obtain a medical opinion for the Veteran’s low back disability. After reviewing the claims file, the examiner is asked to answer the following: (a) Identify all diagnosed chronic spine disability. (b) If the Veteran is diagnosed with scoliosis, explain whether scoliosis is a congenital defect or a congenital disease? The term ‘defect’ is broadly defined as a structural or inherent abnormality or condition that is more or less stationary in nature. The term ‘disease’ is broadly defined as any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. (c) If it is determined that scoliosis is a congenital defect, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has an additional disability due to an in-service disease or injury superimposed upon such defect. In answering this question, the examiner should address the Veteran’s complaints of back pain in service. (d) If instead it is determined that scoliosis is a congenital disease, does the evidence of record clearly and unmistakably show (i.e., it is undebatable) that the Veteran’s scoliosis existed prior to his entry onto active duty in February 2010? (e) If the answer to (d) is yes, does the evidence of record clearly and unmistakably show that the preexisting disease was not aggravated by service or that any increase in disability was due to the natural progression of the disease? Please identify any such evidence with specificity. (f) If the answer to either (c) or (d) is no, is it at least as likely as not that the Veteran’s condition had its onset in service? (g) If any currently diagnosed back disability is neither a congenital defect nor congenital disease, the examiner should opine as to whether it at least as likely as not (a 50 percent probability or greater) that the condition is etiologically related to service. The examiner’s attention is directed to the Veteran’s February 2010 service treatment records with a receipt date of April 2, 2012, where the Veteran complained of back pain during service. The examiner is requested to provide a rationale for any opinion expressed. The rationale must comment on the Veteran’s reports of continuous/recurring symptoms since service/injury therein and post service medical treatment records confirming scoliosis. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel