Citation Nr: 18157193
Decision Date: 12/12/18	Archive Date: 12/11/18

DOCKET NO. 10-44 381A
DATE:	December 12, 2018
REMANDED
Entitlement to service connection for a back disability is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1982 to July 1982 and from May 1985 to June 1991.
In July 2017, the Board denied entitlement to service connection for a back disability, diagnosed as scoliosis. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a June 2018 Joint Motion for Remand (JMR) filed by the contesting parties, the Court vacated the Board’s decision and remanded the claim back to the Board for further development and readjudication in compliance with the specified directives.
As indicated in the JMR, the Board’s July 2017 decision did not unequivocally conclude that the Veteran’s scoliosis existed prior to service and incorrectly shifted the burden of rebutting the presumption of soundness to the Veteran. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); see also Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). Furthermore, the evidence of record shows that the Veteran has additional lumbar spine disorders that the Board failed to consider when making its service connection determination. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); see e.g., July 2015 Dr. J.B.B. Correspondence (Veteran had L5-S1 anterior lumbar interbody fusion, L3-L4 and L4-L5 laminectomy, and T10 to S1 posterior spinal fusion). As such, the Board finds that a new VA examination is necessary.
The matter is REMANDED for the following action:
1. Contact the Veteran and request authorization to obtain any outstanding records pertinent to her claims, including any private treatment records following proper VA procedures (38 C.F.R. § 3.159(c)).
2. After completing the requested development, afford the Veteran a VA spine examination with the appropriate clinician to determine the nature and etiology of her back disability, to include scoliosis. The examiner is requested to conduct all necessary tests, interview the Veteran, and review the claims file. The examiner should answer all of the following questions completely:
(a.) List all of the Veteran’s diagnosed back conditions.
(b.) Did the Veteran’s scoliosis clearly and unmistakably preexist the Veteran’s military service? If scoliosis is found to have clearly and unmistakably preexisted military service, the examiner must state the specific evidence upon which the finding was made.
(c.) If the Veteran’s scoliosis is found to have clearly and unmistakably preexisted military service, did the Veteran’s military service clearly and unmistakably NOT aggravate the preexisting scoliosis beyond the normal progression of the disease? If the examiner finds that the Veteran’s active service clearly and unmistakably did not aggravate the preexisting scoliosis beyond the normal progression of the disease, the examiner must state the specific evidence upon which the finding is based.
(d.) If the Veteran’s scoliosis is not found to have clearly and unmistakably preexisted service and to have clearly and unmistakably not been aggravated by service, is it at least as likely as not (a fifty percent or greater probability) that scoliosis began in service or is otherwise related to a disease, event, or injury in service?
(e.) For any other diagnosed back disability, is it at least as likely as not (a fifty percent or greater probability) that the diagnosed back disability began in service or is otherwise related to a disease, event, or injury in service?
A complete rationale must be provided for all opinions expressed and conclusions reached.
 
A. C. MACKENZIE
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Mukherjee, Associate Counsel