Citation Nr: 19117203 Decision Date: 03/08/19 Archive Date: 03/08/19 DOCKET NO. 17-28 410 DATE: March 8, 2019 REMANDED Service connection for a spine disorder, to include scoliosis with kyphosis thoracic and degenerative changes of the cervical spine, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1973 to November 1975. The case is on appeal from an August 2015 rating decision. Service connection for a spine disorder, to include scoliosis with kyphosis thoracic and degenerative changes of the cervical spine is remanded. This case is being remanded for new medical opinions as to the etiologies of the Veteran’s back disorders, which include scoliosis with kyphosis thoracic and degenerative changes in the cervical spine. In adjudicating this claim, VA has characterized the Veteran’s scoliosis as congenital. Service connection is available for congenital disease, but not congenital defects. 38 C.F.R. § 3.303(c). From the development prior to arriving at the Board, it seems that the Veteran’s scoliosis has been deemed a congenital disease, for which service connection is available, though it is unclear whether the RO considered the distinction between a congenital defect and a congenital disease. A medical opinion is needed to differentiate between the two. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Scoliosis was not noted upon entry into service, though the Veteran was noted to have an abnormality of the lungs and chest listed as slight pectus carinatum. The spine was noted as normal. Therefore, the Veteran is presumed to have been in sound condition upon entry into service with respect to scoliosis. 38 C.F.R. § 3.304; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Once the presumption of soundness applies, the burden of proof shifts to and remains with VA to prove both that the disorder preexisted service and was not aggravated by service by clear and unmistakable evidence. A “claimant need not produce any evidence of aggravation in order to prevail under the aggravation prong,” even if clear and unmistakable evidence establishes that a disease preexisted service. In other words, the “burden is not on the claimant to show that his disability increased in severity.” To the contrary, the burden is on VA to “establish by clear and unmistakable evidence that [a preexisting disease] did not [increase in severity during service] or that any increase was due to the natural progress of the disease.” This burden must be met by “affirmative evidence” demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231 (2012). The Veteran’s service treatment records (STRs) reveal treatment for back pain during service. In March 1975, kyphosis of the spine and scoliosis causing back pain were noted. In July 2015, the Veteran stated that he was diagnosed with scoliosis in January 1975 and placed on a profile for his back in February 1975. The Veteran stated in his August 2016 notice of disagreement that, as a multi-channel communications specialist, he had to often hunch over in small radio vans. In a December 2018 statement, the Veteran indicated that at the time his separation examination was conducted, he was still taking medication for his back. He also noted experiencing back problems for many years, which he treated with over-the-counter medication. He also stated that he received treatment from a chiropractic doctor in 1997, but that his chiropractor’s records are no long available. He stated that he was diagnosed with a herniated disk in 2012. A January 2012 treatment records submitted by the Veteran confirm a diagnoses of degenerative cervical spine disorders. The Veteran was afforded a VA examination of his back in August 2015. The examiner opined that the Veteran’s scoliosis clearly and unmistakably preexisted service. In support of this diagnosis date, the examiner cites a March 1975 STR indicating a congenital scoliosis. She also notes that the Veteran’s medical examination on entry into service was positive for pectus carinatum meaning that scoliosis was present before enlistment and that the Veteran’s separation examination was negative for any additional back disorders. She also stated that it would not appear that the Veteran’s back condition was aggravated beyond a natural progression by service as records are silent for back complaints until 35 years after service. The examiner opined that it is less likely than not that the Veteran’s current low back condition was related to his complaints of back pain while on active duty. Further, there were no documented visits for any back condition until 2011 when the Veteran presented with neck pain, for which he took early retirement in 2012. She notes a life-long post-service career in a warehouse more likely than not contributed to any back or neck condition. The Board finds the August 2015 examiner’s opinion inadequate. First, the examiner should determine whether the Veteran’s scoliosis is a congenital defect (a static condition) or a congenital disease (capable of aggravation and/or improvement). Further, the Veteran notes that on entry into service there was no notation of a defect of the spine. In support of his contention, the Veteran submitted an article entitled, “U.S. Military Recruits Waived for Pathological Curvature of the Spine: Increased Risk of Discharge From Service.” On this basis, it is unclear why an indication of slight pectus carinatum would indicate preexisting scoliosis. A further explanation in this regard would be helpful to the Board in adjudicating the claim. Third, because the presumption of soundness applies, there must be affirmative evidence that the Veteran’s scoliosis clearly and unmistakably was not aggravated by service. The examiner’s opinion as to aggravation is stated in equivocal terms that indicate that the clearly and unmistakably standard was not applied. Finally, since the time of the examination, the Veteran has indicated that he was treated for his back in the years immediately after service, although such records are not available, and has treated back pain with over-the-counter medication. The examiner, in opining on potential aggravation of the Veteran’s scoliosis and relationship of his current degenerative spine disorders, should consider this reported treatment. Therefore, a new medical opinion will be request on remand to address these matters. The matter is REMANDED for the following action: Obtain a new medical opinion regarding the etiology of the Veteran’s spine disorders, diagnosed as scoliosis with kyphosis of the thoracic spine and degenerative changes of the cervical spine. Whether to conduct a new examination is left to the discretion of the examiner. Specifically, the examiner should opine as to whether: (A) The Veteran’s scoliosis with kyphosis of the thoracic spine is a congenital disease capable of aggravation and/or improvement or a congenital defect that is not. (B) The Veteran’s scoliosis with kyphosis of the thoracic spine clearly and unmistakably preexisted service and clearly and unmistakably was not aggravated by service. This opinion should be supported by affirmative evidence. (C) If the Veteran’s scoliosis with kyphosis of the thoracic spine is a congenital or developmental defect, is it at least as likely as not that the Veteran suffered an in-service superimposed disease or injury upon such defect that resulted in any current additional disability? (D) It is at least as likely as not that the Veteran’s degenerative changes of the cervical spine are related to service. A complete rationale should be provided for any opinion rendered. Please consider the Veteran’s statements that his specialty during service required him to hunch over in small radio vans, that he has been taking over-the-counter medication, that he received treatment in the years immediately after service, and that he saw a chiropractor in the 1990s. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George