Citation Nr: 21064751 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-43 638 DATE: October 21, 2021 REMANDED Entitlement to service connection for low back condition is remanded. REASONS FOR REMAND The Veteran had active service from March 2004 to September 2009. 1. Entitlement to service connection for low back condition is remanded. The Veteran contends that he developed back problems due to active service. The Veteran filed the claim in 2010. The Veteran's service treatment records show that a March 2003 pre-entry medical examination showed spine marked as normal and no defects notated. At the August 2009 medical separation examination, the examiner marked the spine as normal. An April 2011 medical opinion stated that the Veteran's back pain was secondary to his service-connected pes planus. A May 2013 VA examination showed no diagnosed back condition, including X-rays with comments of, "normal back, normal X-rays." At a December 2020 VA examination, the examiner diagnosed low back pain and levoscoliosis, a pre-existing condition seen via imaging. There were two medical opinions in January 2021 associated with this examination, one positive and one negative. The addendum opinion in March 2021 addressed the various medical evidence and opinions and opined that the Veteran did not have a clinically diagnosed spine condition and therefore did not have a low back condition related to active service or to service-connected pes planus. The Board must again remand this issue because the medical evidence of record shows a diagnosis of levoscoliosis that is stated to be a preexisting condition and medical examiners have not provided the proper type of opinion on this condition. Congenital or developmental defects are not considered "diseases or injuries" within the meaning of applicable legislation and, hence, do not constitute disabilities for VA compensation purposes. 38 C.F.R. §§ 3.303(c), 4.9; O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014); Quirin v. Shinseki, 22 Vet. App. 390, 395 (2009). However, the sole fact that a disorder is congenital or hereditary in origin does not preclude service connection. See O'Bryan, 771 F.3d at 1380; Quirin, 22 Vet. App. at 395. Only congenital "defects," as opposed to congenital "diseases," are excluded from the types of disabilities that may be service connected, as congenital defects are not considered diseases or injuries under VA law. O'Bryan, 771 F.3d at 1380. Congenital defects are by definition static in nature. O'Bryan, 771 F.3d at 1380 (observing that a hereditary condition that cannot change is a "defect" and is not subject to the presumption of soundness under 38 U.S.C. § 1111. By contrast, congenital diseases are progressive in nature, and as such are capable of improvement or deterioration. O'Bryan, 771 F.3d at 1380 ("[A] congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect," even if it ceases to progress). A veteran is presumed to have been sound upon entry into the military, except as to conditions noted at the time of the acceptance, examination, or enrollment, or where clear and unmistakable evidence demonstrates that the condition existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). The Veteran's entrance medical examination does not note any spine condition. A preexisting injury or disease will be considered to have been aggravated by service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). The RO should obtain a medical opinion that discusses the nature of the diagnosed levoscoliosis, whether it is congenital or not, a disease or defect, and whether such condition was preexisting to service and an opinion on aggravation. The matter is REMANDED for the following action: 1. Obtain an addendum medical opinion for thoracolumbar spine condition from a qualified medical examiner that replies to the following questions. The need for an in-person examination is left to the discretion of the examiner. (a.) Please reference specifically where the Veteran's service treatment records note any spine or back problems or lack thereof. (b.) Is the Veteran's diagnosed levoscoliosis condition congenital? See December 2020 VA examination. (c.) Whether the diagnosed levoscoliosis is due to a congenital defect that is static in nature: The examiner is asked to explain whether the Veteran's diagnosed levoscoliosis represents a congenital defect that is static in nature, meaning that it is incapable of improvement or deterioration. See the December 2020 VA examination. (d.) Whether the diagnosed levoscoliosis is due to a congenital disease: The examiner is asked to explain whether the Veteran's diagnosed levoscoliosis represents a congenital disease, meaning that it is a condition that is capable of change, i.e., it could improve or deteriorate. (e.) If the examiner finds that the Veteran's diagnosed levoscoliosis is a congenital disease within the parameters above, the examiner must opine whether the Veteran's diagnosed levoscoliosis is at least as likely as not aggravated by service, to include reference to the Veteran's statements and medical treatment records and opinions. (f.) If the examiner finds that the Veteran's diagnosed levoscoliosis is not congenital, the examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, to include reference to the Veteran's statements and medical treatment records and opinions. (g.) Did the Veteran's levoscoliosis condition exist prior to entry into service based on clear and convincing evidence? (h.) If the Veteran's levoscoliosis condition pre-existed service, was any increase during service consistent with the natural progression of the condition? (i.) In your opinion, please reconcile the various conflicting medical opinions and evidence with your ultimate opinion. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Miller, 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.