Citation Nr: 21062485 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-62 432 DATE: October 7, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1960 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Entitlement to service connection for a back disability is remanded. The Board finds that remand is warranted to determine the etiology of the Veteran's back disability, specifically, whether it is a congenital disease or congenital defect and/or whether it pre-existed service. Additionally, at his October 2021 Board hearing, the Veteran testified that he was treated during service at Long Beach Naval Hospital. Such records have not been obtained. The matter is REMANDED for the following action: 1. Obtain the Veteran's hospital records from Long Beach Naval Hospital. Document all requests for information as well as all responses in the claim file. 2. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for his back disability since his discharge from service (records of which are not already associated with the claim file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation. He should also be requested to specifically identify when his back disability was first diagnosed and the diagnosing physician and/or facility. With his cooperation (by providing releases), obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the Agency of Original Jurisdiction's request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received. 3. Then, obtain a supplemental medical opinion to determine the nature and etiology of the Veteran's back disability. The entire claim file (including this remand) should be made available to and reviewed by the examiner. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all back disabilities present during the appeal period (from January 2017). (b) For EACH disability diagnosed, provide an opinion and explanation for whether such disability is a congenital defect or congenital disease. (Congenital defects are static in nature and incapable of improvement or deterioration, whereas congenital diseases are capable of such progression. See O'Bryan v. McDonald, 771 F.3d 1376, 1381 (Fed. Cir. 2014)). (c) For EACH disability that is a congenital defect, is it at least as likely as not (50% or greater probability) that such disability was aggravated by a superimposed injury or disease during the Veteran's service that resulted in additional disability apart from the defect? (d) For EACH disability that is a congenital disease, is it at least as likely as not (50% or greater probability) that such disability was aggravated by the Veteran's service? (e) For EACH back disability that is neither a congenital defect nor a congenital disease, did such disability clearly and unmistakably (undebatable) pre-exist the Veteran's service? Please explain why. (f) If the examiner finds that a back disability clearly and unmistakably pre-existed service, was it clearly and unmistakably (undebatable) NOT aggravated by service? Please explain why. (g) If the examiner finds that a back disability either did not clearly and unmistakably pre-exist service OR was clearly and unmistakably not aggravated by service, is it at least as likely as not (50% or greater probability) that such disability was either incurred in or otherwise related to the Veteran's military service? Please explain why. The clinician should consider and address the following: a March 1969 enlistment report of medical examination and a September 1969 separation report of medical examination showing a normal spine on clinical evaluation; a June 1971 annual report of medical examination showing spina bifida occulta L5 with asymmetrical facets L-5 and S-1; a July 1971 service treatment record (STR) noting back pain for two weeks made worse with prolonged standing and a diagnosis of mechanical back pain; an August 1971 STR noting no back trouble until lifting hoses during reserve duty six weeks prior and a medical statement that his spina bifida made him a candidate for mechanical back pain and therefore not fit for retention; an August 1971 private treatment record from Dr. M.W. noting the Veteran suffered a back injury on July 8, 1971 (during service), and was subsequently diagnosed with thoracic sprain and congenital rib separation; A July 2005 private treatment record noting a complaint of back spasm (with previous upper thoracic muscle spasms) and including a diagnosis of upper lumbar and lower thoracic strain; An October 2006 private treatment record noting a history of remote overuse and chronic injury in service and a history of unusual right lower back pain for the last three or four days; x-rays showed some facet arthritis. The assessment included lumbosacral pain and flank pain, probably due to arthritis and muscle spasm; An October 2009 private treatment record noting a history of lumbar sprain; A March 2017 VA examination noting onset of back symptoms in 1971; and A September 2017 notice of disagreement that includes the Veteran's statement of continuous back pain on a daily basis. If the examiner cannot provide an opinion without an examination, an examination (or telehealth interview, if an in-person examination is not feasible) should be scheduled. 4. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.