Citation Nr: 18119166
Decision Date: 07/18/18	Archive Date: 07/18/18

DOCKET NO. 12-30 606
DATE:	July 18, 2018
REMANDED
Entitlement to service connection for thoracolumbar spine disorder, diagnosed as congenital fusion of T12 and L1, to include as secondary to service-connected bilateral knee disability. 
REASONS FOR REMAND
The Veteran had active duty service from October 2003 to March 2004, from September 2005 to July 2007, and from September 2009 to December 2010.
This case comes before the Board of Veteran’s Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).
In September 2013, the Veteran had a Videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is of record.
In November 2016 decision, the Board denied service connection for thoracolumbar spine disorder, diagnosed as congenital fusion of T12 and L1, to include as secondary to service-connected bilateral knee disability.
The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court/CAVC). In granting a December 2017 Joint Motion for Remand (JMR), the Court vacated, in other words set aside, the Board’s denial of his claim of entitlement to service connection for thoracolumbar spine disorder, diagnosed as congenital fusion of T12 and L1, to include as secondary to service-connected bilateral knee disability. The Court remanded claim back to the Board for further proceedings consistent with the December 2017 JMR. As the Court-granted JMR indicates, this claim requires further development before being readjudicated, so the Board is remanding it to the RO.
Thoracolumbar Spine Disorder
In accordance with the Joint Motion, the Board remands the claim for further development. Specifically, the Joint Motion found that the Board erred in relying on the March 2015 VA examination and opinion of record, finding that the examination did not sufficiently inform the Board on the question of whether the Veteran’s thoracolumbar spine disorder was a defect or disease for VA disability compensation purposes.
The March 2015 VA examiner found that the Veteran’s congenital anterior infusion was a birth defect.  The VA examiner noted that the anterior infusion was possibly congenital.  The VA examiner did not provide any further discussion about the nature of the condition. The VA examiner’s analysis nor the Board’s analysis specifically addressed whether the Veteran’s condition was capable of improvement or deterioration even if it was congenital.  Therefore, the Court indicated that on remand, the Board must order a new medical opinion that addresses whether the Veteran’s condition was (1) congenital or developmental; and if so, (2) it was capable of improvement or deterioration. 
The matter is REMANDED for the following action:
1. Obtain any outstanding records pertinent to the Veteran’s claims.
2. After completing the aforementioned, return the Veteran’s electronic claims file to the examiner who conducted the March 2015 VA examination for the purpose of obtaining an addendum medical opinion. If the requested examiner is no longer available, another appropriate examiner should be asked to review the electronic file and answer the questions posed below. If the clinician determines that another examination is needed, the Veteran should be scheduled for a new examination. The examination report must reflect that review of the claims folder occurred, to include the additional records and a copy of this remand.
Following a complete review, the examiner is requested to render the following opinion:
a) Is the Veteran’s back disorder congenital or developmental? If a disorder is considered to be congenital or developmental, is it a disease or defect? 
b) Are any of the Veteran’s back disorders capable of improvement or deterioration?
c) If the back disorder is determined to be a congenital/developmental defect, whether it is at least as likely as not (a probability of 50 percent or greater) that there was a superimposed injury or disease in service that resulted in additional disability of the spine.
d) If the back disorder is a disease, then is it at least as likely as not (50 percent or greater probability) that the disease increased in severity beyond its natural progression, during service?
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Complete rationale is requested for any opinion that is rendered.
 
K. J. ALIBRANDO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Baxter, Associate Counsel