Citation Nr: 18157271 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 08-30 017 DATE: December 12, 2018 ORDER Service connection for scoliosis with degenerative disc disease of the spine is granted. REMANDED Entitlement to an initial compensable rating for right eye refractive error is remanded. FINDING OF FACT The Veteran’s current scoliosis with degenerative disc disease of the spine had onset in service. CONCLUSION OF LAW The criteria for service connection for scoliosis with degenerative disc disease of the spine are met. 38 U.S.C. §§ 1110, 1111, 1131, 5107 (b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1982 to July 1995. These matters come 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. In May 2010, the Board, in pertinent part, remanded the issues of entitlement to an initial compensable rating for right eye refractive error and entitlement to service connection for a back disorder. In June 2012, the Board denied entitlement to an initial compensable rating for right eye refractive error and remanded the issue of entitlement to service connection for a back disorder. In June 2013, the Board remanded the issue of entitlement to service connection for a back disorder. In October 2013, United States Court of Appeals for Veterans Claims (Court), on the basis of a Memorandum Decision, vacated the Board’s June 2012 denial of an increased rating for the eye and remanded the matter. In June 2014, the Board remanded the appeal. In June 2015, the Board denied entitlement to an initial compensable rating for right eye refractive error and entitlement to service connection for a back disorder. In June 2016, the Court, on the basis of a Joint Motion for Remand (Joint Motion), vacated the Board’s June 2015 denials and remanded the matter. In December 2016, the Board remanded the issue of entitlement to an initial compensable rating for right eye refractive error and denied entitlement to service connection for a back disorder. In November 2017, the Board remanded the issue of entitlement to an initial compensable rating for right eye refractive error. In April 2018, the Court, on the basis of a Memorandum Decision, vacated the Board’s December 2016 denial of service connection for a back disorder and remanded the matter. Service connection for degenerative disc disease of the spine is granted. The Veteran seeks service connection for a back disorder, which he contends began in service and has been recurrent since that time. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303 (a). Here, all three elements of service connection are established by the competent and credible lay and medical evidence of record. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). First, the evidence shows current diagnoses of scoliosis and degenerative disc disease of the spine. While the presence of degenerative disc disease is undisputed (see, e.g, VA examination, July 2012), there are competing opinions as to whether the Veteran has scoliosis. A July 2012 VA examiner diagnosed scoliosis, but a subsequent VA examiner found that such diagnosis was rendered in error: reasoning that the curvature seen on prior x-rays was “not consistent with structural scoliosis” but rather secondary to “muscle strain or muscle spasm.” Absent further explanation as to why prior diagnoses of scoliosis were rendered in error, the Board finds that the evidence regarding the presence of scoliosis is, at worst, in relative equipoise. Thus, after resolving any doubt in the Veteran’s favor, the Board finds that the Veteran has current diagnoses of scoliosis and degenerative disc disease of the spine. Second, treatment records generated during the Veteran’s service from June 1982 to July 1995 show several back injuries and diagnoses of lumbar sprain or strain and scoliosis. Specifically, in October 1992, the Veteran sought medical treatment for back pain related to a lifting injury; he was diagnosed with lumbosacral strain or sprain. He was again treated for episodes of back pain in June and July 1994. X-rays taken in July 1994 were read to show minimal scoliosis. In January 1995, an examiner noted that the Veteran exercised to ameliorate his back problems. In the accompanying report of medical history, the appellant reported occasional back pain, which he treated with rest, exercises, heat, and pain medication. See, e.g., Memorandum Decision (April 2018) and VA examination (December 2014) (outlining the Veteran’s spinal health history). Third, the evidence shows that the Veteran experienced recurrent back problems since his in-service injuries and that such were ultimately diagnosed as scoliosis and degenerative disc disease of the spine. Here, in and since service, the Veteran has provided competent, credible reports of back problems, to include pain and flare-ups that have limited spinal function, particularly when lifting. His reports are ascribed heightened credibility as they are in-step with service treatment records, which chronicle recurrent back problems from the time of his initial injury and post-service treatment records, to include a 1998 emergency department record that shows that the Veteran cited his history of in-service back injuries while seeking treatment for his current back problems. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (ascribing heightened credibility to statements made to clinicians for the purpose of treatment); see also Williams v. Gov. of Virgin Islands, 271 F.Supp.2d 696, 702f (V.I.2003) (noting that statements made for the purpose of diagnosis or treatment “are regarded as inherently reliable because of the recognition that one seeking medical treatment is keenly aware of the necessity for being truthful in order to secure proper care”). Post-service x-rays of the spine were not taken until the July 2012 VA examination, at which time the Veteran was diagnosed with his current scoliosis and degenerative disc disease of the spine. Taken together, this lay and medical evidence paints a picture of a veteran who injured his back in service; experienced recurrent symptoms since his initial injury, particularly when lifting; and whose injuries were not fully explored (to include via x-ray) until VA examination, many years after service. The Board acknowledges that VA examiners have opined that the Veteran’s current back disabilities are not related to service, but finds that such are not probative as to the etiology of the Veteran’s current back disabilities as they do not sufficiently address the Veteran’s recurrent symptoms in and since service, which, as discussed above, the Board finds highly persuasive. Even though all of the VA medical opinions in the record are, in various respects, inadequate the Board concludes that the above-discussed favorable lay and medical evidence provides sufficient basis to resolve reasonable doubt in the Veteran’s favor. Accordingly, remand for an additional examination is not necessary. 38 C.F.R. § 3.159 (c)(4); cf. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). Fourth, in accord with the June 2016 Joint Motion and December 2016 Board decision, the Board finds that the presumption of soundness was not rebutted with respect to any back disorder. In this regard, a back disorder was not noted upon entrance into service and VA examiners disagree on whether the Veteran had scoliosis. Therefore, it was not clear and unmistakable that scoliosis, or any back condition, existed prior to service. In sum, after resolving any doubt in the Veteran’s favor, the evidence shows that the Veteran’s current scoliosis with degenerative disc disease of the spine had onset in service. As such, service connection for scoliosis with degenerative disc disease of the spine is warranted. REASONS FOR REMAND Entitlement to an initial compensable rating for right eye refractive error is remanded. Most recently, in November 2017, the Board remanded the claim for a VA eye examination. The Board expressly required that an ophthalmologist - not an optometrist - conduct the examination. While the RO afforded the Veteran a VA eye examination in March 2018, the examination was conducted by an optometrist. To ensure compliance with the Board’s remand directives, reexamination by an ophthalmologist is needed. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an ophthalmologist—not an optometrist—to determine the current severity of his service-connected eye disability. An ophthalmologist must conduct the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the eye disability alone and discuss the effect of the disability on any occupational functioning and activities of daily living. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel