Citation Nr: 20004702 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 14-28 383A DATE: January 21, 2020 REMANDED Entitlement to service connection for scoliosis is remanded. REASONS FOR REMAND The Veteran had active duty from January 1970 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2017, the Veteran testified at a video conference hearing before a Veterans Law Judge (VLJ) other than the undersigned VLJ. The transcript of the hearing has been associated with the claims file. Following the hearing, the Board issued the March 2018 decision that remanded this matter for further development. Specifically, the March 2018 Board decision pointed out that the Veteran’s August 1969 service enlistment examination noted that he had mild scoliosis, and the Veteran asserted that his in-service standing, climbing stairs, carrying heavy equipment, and running aggravated his preexisting scoliosis. Upon explaining that service connection for a veteran’s disability based on his/her preexisting condition may be granted only if it is shown that the preexisting condition increased in severity beyond its natural progression during service, the Board directed that the Veteran would be provided with a VA examination to determine whether his preexisting mild scoliosis was aggravated in service. In October 2018, the Veteran was provided with a VA examination. The examiner diagnosed him with degenerative arthritis of the spine, recorded the Veteran’s report that, upon his enlistment, “he was told [that] he had scoliosis,” noted that the Veteran denied any in-service treatment for a back condition, and pointed out that he sought medical care for his back condition long after his discharge. After reviewing the Veteran’s service and post-service treatment records, the October 2018 VA examiner opined: “No indication that current back condition [i.e., degenerative arthritis of the spine,] is in any[]way related to time in service.” A post-remand VA examination does not require a further remand for an addendum medical opinion if the examination is in substantial compliance with the remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). In this case, however, the October 2018 VA examiner’s opinion established only that the Veteran’s degenerative arthritis of the spine was not caused or is not otherwise attributable to service. The examiner’s opinion did not address the issue faced by the Board, i.e., whether the Veteran’s preexisting mild scoliosis was aggravated in service. True, the October 2018 VA examiner’s opinion, if construed very loosely, might be read as suggesting that the Veteran has not been suffering from any form of scoliosis or a scoliosis-related condition during the period on appeal. Such a loose construction, in turn, might give rise to an equally loose inference that the Veteran’s preexisting scoliosis was not aggravated in service. However, a loose inference derived from a loose construction of an expert opinion does not convert such an opinion into a medical finding meeting the Stegall test. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 731 (1973) (“adjudication cannot rest on any such ‘house that Jack built’ foundation”). Accordingly, while the Board regrets further delay, a remand is required before a decision may be rendered as to the Veteran’s claim seeking service connection for a back condition based on an in-service aggravation of his preexisting scoliosis. The matters are REMANDED for the following action: 1. Request that the Veteran identify any outstanding post service private and VA treatment records relevant to his claim for service connection for a back condition based on an in-service aggravation of his preexisting scoliosis. Provide the Veteran with the necessary authorization forms, attempt to obtain any identified records, and document any negative responses received. 2. After completing the foregoing and any other development deemed necessary, schedule the Veteran for an in person examination by the VA examiner who conducted his October 2018 examination or, if this examiner is not available, an appropriate VA examiner. 3. The VA examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran has been suffering from any form of scoliosis or a scoliosis-related condition during at least a portion of the period on appeal. If the examiner finds that the Veteran has not been suffering during at least a portion of the period on appeal from a back condition that could as likely as not be qualified as a form of scoliosis or a scoliosis-related condition, the VA examiner is requested to expressly state so in his/her report. Critical here, if the VA examiner renders such a finding, the examiner is requested to provide a detailed rationale for his/her opinion. 4. In the event the VA examiner determines that it is at least as likely as not that the Veteran has been suffering from a form of scoliosis or a scoliosis-related condition during at least a portion of the period on appeal, the examiner is requested to opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s preexisting mild scoliosis was aggravated in service beyond its natural progression. Critical here, the examiner is requested to provide a detailed rationale for his/her opinion. 3. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. If an opinion cannot be provided without resorting to speculation as to any aspect of the Veteran’s claim, the VA examiner is requested to provide an explanation as to why this is so and to clarify what, if any, additional evidence would permit the requested opinion to be rendered. 4. After completing the foregoing and any other development necessary, readjudicate the Veteran’s claim for service connection for a back condition based on an in-service aggravation of his preexisting scoliosis. 5. If any benefit sought on appeal remains denied, an SSOC should be furnished to the Veteran and his representative, and he should be afforded a reasonable opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The law requires that all claims that are remanded by the Board of Veterans’ Appeals for additional development must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Anna Kapellan The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.