Citation Nr: 18115397 Decision Date: 07/03/18 Archive Date: 06/29/18 DOCKET NO. 14-24 478A DATE: July 3, 2018 REMANDED Entitlement to service connection for a lower back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 1975 to December 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision of a Veterans Affairs (VA) Regional Office (RO). Entitlement to service connection for a lower back disability is remanded. The Veteran contends that his currently diagnosed degenerative disc disease of the lumbar spine is related to an injury in 1982, where the Veteran was allegedly attacked by military police. The medical evidence of record, in pertinent part, consists of conflicting private and VA medical opinions. However, the Board finds that both opinions are inadequate in some regard, and therefore, a new VA examination is warranted. The private medical opinion from Dr. C.R. was submitted in May 2018. Dr. C.R. indicated that the Veteran suffered from degenerative disc disease and dextroscoliosis of the thoracolumbar spine. Dr. C.R. opined that the Veteran’s spinal condition was likely caused by his injury while on active duty. However, Dr. C.R. provided no rationale for his opinion. As a result, the Board finds that this opinion is of minimum probative value. The Veteran was afforded a VA Examination in June 2012. The examiner noted that the Veteran’s service treatment records (STR) were silent as to any complaints of back pain during service. The examiner also noted that the Veteran had osteoarthritis of the hip, for which he underwent a hip replacement. The examiner indicated that the Veteran reported experiencing his current back pain only after undergoing hip surgery. The Veteran was diagnosed with degenerative disc disease of the lumbar spine. In rendering a negative nexus opinion, the examiner opined that the Veteran’s back condition was likely a result of his hip condition. He opined that the Veteran’s dysfunctional gait was likely the source of his back pain, and cited the Veteran’s statement concerning his back pain beginning shortly after his hip replacement. Here, the Board finds that the June 2012 opinion was based on an inaccurate factual premise. A review of the Veteran’s STR’s indicates that the Veteran complained of pain related to his spine on at least two occasions during service; June 1979 and January 1982. Additionally, at the Veteran’s May 2018 hearing, he testified that the examiner misunderstood his statement concerning the onset of his back pain. The Veteran stated that his back pain began before his hip surgery and became worse after the procedure. See Hearing Testimony. To this extent, the examiner’s opinion was based at least partially on the errant contention that the Veteran’s back pain did not predate his hip replacement. Further, the June 2012 examiner did not address the Veteran’s assertions concerning the 1982 back injury resulting from a physical altercation with military police. The Board also notes that the June 2012 examiner noted that the Veteran underwent an x-ray in 1982 that revealed a finding of thoracic dextroscoliosis. The examiner also stated that the Veteran’s scoliosis most likely preexisted service, as scoliosis more commonly develops during child hood growth. Additionally, the examiner opined that it was less likely than not that the Veteran’s scoliosis caused his current diagnosed degenerative disc disease. Based on the foregoing, the Board concludes that the medical evidence of record raises the question of whether the Veteran clearly and unmistakably had a lower back condition that preexisted his enlistment into active duty service. Thus, upon remand, the Board also seeks an opinion specifically addressing the question of whether the Veteran's lower back disability clearly and unmistakably preexisted service and, if so, whether the preexisting disability was clearly and unmistakably not aggravated by the Veteran's military service. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran’s lower back disability. Access to Virtual records and a copy of this REMAND must be made available to the VA examiner for review in conjunction with the examination. The examiner should provide an opinion as to whether the Veteran has a lower back disability that clearly and unmistakably (obviously or manifestly) existed prior to entrance into service. Attention is invited to the October 1982 Radiographic Report indicating dextroscoliosis of the thoracic spine (See STR – Medical). If it is the VA examiner's opinion that the lower back disability clearly and unmistakably preexisted service, was the preexisting disability clearly and unmistakably (obviously or manifestly) not aggravated (not permanently worsened beyond the natural progression) during active service? If the VA examiner concludes that there is no clear and unmistakable evidence that the Veteran's lower back disability existed prior to service and was not aggravated by service, the VA examiner should then provide the following opinion: Is it at least as likely as not (50% or greater probability) that any diagnosed lower back disability is related to or the result of the Veteran's service? In rendering all opinions, attention is invited to the Veteran’s June 1979 and January 1982 complaints of back pain (See STR – Medical) and Veteran’s claim of a back injury sustained in 1982 during a physical altercation with military police. Provide a complete rationale/explanation for each opinion provided. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Marsh II, Associate Counsel