Citation Nr: 21000912 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-13 173 DATE: January 6, 2021 ORDER Entitlement to service connection for scoliosis of the thoracic spine is granted. Entitlement to service connection for adjustment disorder with chronic depressive mood as secondary to a service-connected back disability is granted. REMANDED Entitlement to service connection for headaches, to include as secondary to back or acquired psychiatric disabilities, is remanded. FINDINGS OF FACT 1. The Veteran’s service aggravated a pre-existing scoliosis of the thoracic spine disability due to injury in the line of duty. 2. The Veteran’s adjustment disorder with chronic depressive mood was caused by his service-connected back disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a scoliosis of the thoracic spine and have been met. 38 U.S.C. §§ 1110, 1111, 1153. 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. The criteria for entitlement to service connection for adjustment disorder with chronic depressive mood as secondary to a service-connected back disability have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training in the Air Force from March 2004 to August 2004, with additional service in the Ohio Air National Guard and Air Force Reserve. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in February 2020. The hearing transcript is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. 1. Entitlement to service connection for a back disability The Veteran injured his back in April 2007. See April 2007 Line of Duty Determination. Considering the facts of this case, this is sufficient to show that the Veteran sustained injury while completing duty. The Veteran underwent a VA examination in October 2013. The evidence shows that the Veteran had scoliosis that pre-existed this injury why on duty. The VA examination of record does not provide a non-speculative opinion regarding whether this injury aggravated this pre-existing disability. The Veteran has submitted a positive medical opinion. In this opinion, a clinician details the basis for finding that this in-line of duty injury aggravated the pre-existing scoliosis. This is the only non-speculative opinion of record. On this basis, service connection is granted. 2. Entitlement to service connection for adjustment disorder with chronic depressive mood as secondary to a service-connected back disability The September 2010 VA examination show the Veteran has a current disability of adjustment disorder with chronic depressive mood. The examiner opined that the Veteran’s depressed mood is most likely the result of the effect of back pain on his ability to be active in life; if his back-condition is service connected, then his mental health condition is also at least as likely as not to be service-related. The December 2013 VA examiner opined that the Veteran’s adjustment disorder with chronic depressive mood is at least as likely as not proximately due to or the result of the Veteran’s back condition. The examiner further stated that his physical health, as related to his back injury, was the precipitating event for the adjustment disorder, and that the Veteran’s back condition was the cause for his depressed mood. Furthermore, a December 2018 private medical opinion by S.D., a registered nurse, indicates that the Veteran’s diagnosed condition is at least as likely as not caused by his back condition, citing medical literature indicating that pain contributes to depression. After a review of all the evidence, and after resolving all doubt in favor of the Veteran, the Board finds that the weight of the evidence shows that Veteran’s adjustment disorder with chronic depressive mood was caused or aggravated by his back disability. Accordingly, service connection for adjustment disorder with chronic depressive mood as secondary to the service-connected back disability is warranted. 38 U.S.C. § 5107(b); 39 C.F.R § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In October and December 2013, the Veteran underwent VA examinations for his claimed disabilities. The October 2013 VA examination noted a diagnosis of a migraine headache condition. However, no VA examiner provided a medical opinion regarding the etiology of the Veteran’s headaches. On remand, the RO should obtain an addendum opinion addressing this matter. The matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, obtain an addendum opinion from an appropriate medical professional. The claims file, as updated, must be made available to and reviewed by the examiner. The examiner must opine on the following: (a) Is any headache disability at least as likely as not (a 50 percent probability or greater) etiologically related to (caused or aggravated by) an in-service injury, event, or disease? (b) Is any headache disability at least as likely as not (a 50 percent probability or greater) proximately due to or the result of service-connected back and/or psychiatric disability? (c) Is any headache disability at least as likely as not (a 50 percent probability or greater) aggravated (increased in severity) beyond its natural progress by service-connected back and/or psychiatric disability? If, and only if, the examiner determines that another VA examination is necessary to provide an informed opinion, such an examination should be scheduled. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and must state whether there is additional evidence that would permit the necessary opinion to be made. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Minaya, Associate Counsel 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.