Citation Nr: 21002230 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-31 513 DATE: January 13, 2021 ORDER Entitlement to service connection for degenerative disc and joint disease with dextroscoliosis (claimed as crooked spine) is granted. FINDING OF FACT The Veteran’s current low back problems had their onset in service as a result; of a May 1963 accident, in which he was struck by a car while walking in the road. CONCLUSION OF LAW The criteria for service connection for degenerative disc and joint disease with dextroscoliosis (claimed as crooked spine) have been met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from October 1961 to October 1963. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2016 rating decision by the Regional Office (RO) of the United States Department of Veterans Affairs (VA). However, as noted in the May 2019 Board remand, the prior January 2015 rating decision denying service connection for this matter was not finalized, and the April 2016 rating decision is a continuation of that adjudication. The Veteran and his wife testified at a February 2019 hearing at the RO held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the electronic claims file. In May 2019, the Board remanded the issue of entitlement to service connection for degenerative disc disease with dextroscoliosis (claimed as crooked spine) for additional development. A VA addendum opinion was completed in December 2019, and the matter is again before the Board. Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Importantly, when no pre-existing injury or disease is noted upon entry into service, the Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s injury or disease was both pre-existing and not aggravated by service. 38 U.S.C.A. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Here, the August 1961 induction examination noted no low back problems, to include x-ray findings of scoliosis. There is no clear and unmistakable evidence that a back condition pre-existed service, and so the presumption of soundness is not rebutted. Service treatment records (STRs) document a May 1963 incident wherein the Veteran was struck by a car in a hit and run accident. He complained of abdominal pain; no specific back or spine problem was reported. An x-ray, however, noted mild curvature of the lumbar spine and straightening or the lordotic curve. No fracture was seen. “These changes may well be secondary to pain rather than a fixed curvature.” At separation examination in September 1963, there were no back complaints or findings, and no x-ray abnormalities were noted. The Veteran and his wife report that ever since the accident, he has experienced pain or irregular feelings in the low back. He sought treatment, used over the counter remedies, and worked through such. He states his problems have been progressive. VA treatment records from 2003 to the present show reports of back problems throughout; recent testing shows significant degeneration, and the Veteran has undergone surgery. The Veteran noted the curvature 4 or 5 years prior, and had a history of back surgery. Prior to surgery he had back pain with radiation to the right leg. The accident in service was noted. X-rays shows scoliosis to the right, sever right side neural foramina narrowing, and degenerative changes at L3-4 and L4-5. The examiner opined that it was less likely than not that current scoliosis or other back conditions were related to service, to include the 1963 accident. There were no actual back problems in service, and it was not possible to say how long the scoliosis noted in service had been present. In the December 2019 addendum opinion by the same doctor, the examiner provided a detailed summary of the Veteran’s in-service back history, noting that following the in-service incident when he was hit by an automobile and subsequent x-rays. He noted that no specific complaint of a back injury was mentioned at the time of this accident, and that the service treatment records did not contain any other references to treatment for a back condition. The examiner found that the degenerative disc disease and degenerative arthritis were both less likely than not caused and/or aggravated by service. Regarding dextroscoliosis, the examiner indicated that scoliosis can be hereditary, or may be caused by neuromuscular conditions, developmental issues related to bones of the spine, injuries to or infections of the spine. The examiner explained that in the spine x-ray completed in 1963, spine curvature was shown, but that there was no fracture or indication of severe back injury to explain it. The examiner concluded that, as noted in the original report, mild curvature of the spine noted in 1963 is less likely as not due to automobile accident. The Board finds that service connection for a low back disability is warranted. The Veteran was in an accident in service, sustaining significant trauma from being struck by a car. While no specific back problems were noted, the contemporaneous records show the evaluation was less than complete, due to the Veteran’s attitude. It may simply have not been noted as it was not a major concern. However, scoliosis was first noted at that time, and records show it may have been due to pain, and not fixed curvature. This supports a finding of injury in service. Post service records and testimony indicate pain continued since that time, and such is consistent with the physical findings of right side scoliosis and foraminal narrowing on that side. The VA examiner has stated that he cannot opine regarding the scoliosis, and so the evidence at of record must be held to show the onset of such in service. Further, such undercuts the rationale offered by the examiner that there was no actual back injury in 1963. Without such opinion, the evidence shows onset and continuation of symptoms since service. Service connection for a low back disability is therefore warranted. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.P. Faris 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.