Citation Nr: 20039965 Decision Date: 06/11/20 Archive Date: 06/11/20 DOCKET NO. 17-57 662 DATE: June 11, 2020 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from September 2007 until September 2013. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The RO, in pertinent part, denied service connection for a lower back condition. This matter was previously before the Board and remanded in March 2019 for additional development to obtain documents and schedule a VA examination. The January 2020 VA examiner provided medical opinions with little to no rationale and contradictory assertions. The examiner states that the Veteran’s condition started in 2009 and then opines that the Veteran’s low back disability is less likely than not related to service in each opinion requested. The examiner provided responses for each medical opinion requested, despite three of the questions being whether it is a congenital disease, whether it is a congenital defect, and whether it is not a congenital condition. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of low back disability, as the January 2020 examination and medical opinions are inadequate for rating purposes. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Advise the Veteran to submit any copies of service treatment records in his possession. 2. Schedule the Veteran for a VA examination with an orthopedic spine surgeon to determine the nature and etiology of any back disability, to include levoscoliosis, degenerative disc disease, and mechanical low back pain. The examiner must opine whether any back disability found is at least as likely as not related to an in-service injury, event, or disease, to include carrying 60 pounds of gear and an M240 machine gun over the course three deployments to Southwest Asia. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. Additionally, the examiner is asked to provide responses to the following: (a.) Is the Veteran’s levoscoliosis, or any other back disability identified, a congenital disease or a congenital defect? Defects are defined as “structural or inherent abnormalities or conditions that are more or less stationary in nature.” VAOPGCPREC 82-90 (Jul. 18, 1990). A disease, on the other hand, is defined broadly as “any deviation from or interruption of the normal structure or function of any part, organ, or system of the body...” and “a condition considered capable of improving or deteriorating. Id. “Any worsening—any change at all—might demonstrate that the condition is a disease, in that VA considers defects to be ‘more or less’ static and immutable.” Quirin v. Shinseki, 22 Vet. App. 390, 395 (citing VAOGCPREC 82-90). In assessing whether a condition is a congenital defect or disease, the Board highlights that the consideration of evidence in this regard is not limited to the service treatment records. Post-service evidence can also illuminate whether a congenital condition is essentially “static in nature” and thereby a defect or whether it is capable of change and thereby a disease. The January 2020 examiner offered an opinion that scoliosis was a congenital defect which no rationale supporting the conclusion reached. (b.) If it is determined that levoscoliosis, or any other back disability identified, is a congenital disease, then is it at least as likely as not (a 50 percent or greater probability) that it underwent an increase in severity, beyond the natural progression of the condition, during active service? (c.) If it is determined that levoscoliosis, or any other back disability identified, is a congenital defect, then provide an opinion as to whether any other disease or injury was superimposed upon the congenital defect as a result of service. (d.) If a nexus cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multisymptom illness of unknown pathophysiology or etiology; (3) a diagnosable but medically unexplained chronic multisymptom illness of partially understood pathophysiology or etiology; or (4) a disease with a conclusive pathophysiology and etiology. The pathophysiology and etiology of a disease is a veteran-specific inquiry, rather than an inquiry regarding the general knowledge of the medical community. A complete rationale must be provided for all opinions expressed. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Boyea, Law Clerk 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.