Citation Nr: 21064831 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 15-20 246 DATE: October 21, 2021 REMANDED Entitlement to service connection for a back condition, to include as secondary to service-connected residuals, fracture of right foot, healed (right foot condition) is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2019. A transcript of the hearing is of record. The Board remanded this matter in November 2019 and November 2020. The Board finds that the RO did not substantially comply with the directives set forth in the November 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a back condition, to include as secondary to service-connected residuals, fracture of right foot, healed (right foot condition) is remanded. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall, 11 Vet. App. at 268. Regrettably, the Board finds that further remand is necessary in this case under Stegall. Pursuant to the November 2020 remand, additional treatment records, and VA examination and opinion were obtained for the Veteran's back condition. Pertinent to this remand, the Board directed that the VA examiner do the following: 1) list all diagnoses pertaining to the Veteran's back and specify whether it was present during service; 2) determine whether the Veteran's scoliosis was a congenital or developmental disease; 3) state whether any back condition was incurred during service or is related to any event or injury during service; and 4) provide the date of onset of the Veteran's degenerative lumbar spondylosis. In a February 2021 VA opinion, the examiner stated that the Veteran had an enlistment exam that noted scoliosis dorsolumbar on April 17, 1968. This concluded that the condition existed prior to service and was present during service. This diagnosis was present during service, but the examiner did not locate any back pain complaints while in service. Therefore, the examiner determined that scoliosis dorsolumbar was asymptomatic and not incurred during service. Regarding degenerative disc disease, spondylosis, the examiner stated that he did not locate any back pai complaints while in service. Therefore, the back diagnosis was not incurred/present while in service. In a second February 2021 VA opinion, the examiner stated that the Veteran entered service per records with scoliosis dorsolumbar. This was not a developmental or congenital defect. It was idiopathic in nature due to not having any childhood records or complaints to surmise the type of scoliosis the Veteran has. The Veteran only showed scoliosis on entrance exam with low degrees of curvature and was asymptomatic. The examiner said that most likely scoliosis noted on enlistment exam was due to skeletal immaturity as scoliosis was not noted in any other diagnostics for lumbar spine. In a third February 2021 VA opinion, the examiner opined that the Veteran's back condition was less likely than not related to service. The examiner reasoned that the Veteran entered service per records with scoliosis dorsolumbar. There was also no medical documentation in records during service that show any injuries or complaints of back pain in service. In a May 2021 VA opinion, the Veteran's scoliosis, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by service. The examiner reviewed the record and noted that the Veteran entered service with scoliosis, shown on the April 1968 enlistment exam. The abnormal curvature that existed was not measured objectively or radiologically to determine a Cobb angle. Due to age and gravity, weight gaining, weight bearing, etc., the angle could be expected to worsen. The examiner stated that there was no in-service aggravation of the scoliosis found in any service treatment record. There was no radiological or objective evidence of unnatural aggravation of the scoliosis found via measurement of Cobb angle. There was no evidence of unnatural or abnormal aggravation. In a second May 2021 VA opinion, the examiner opined that the Veteran's scoliosis dorsolumbar and degenerative disc disease spondylosis was less likely than not related to service. The examiner reviewed the records and found that there was no record of chronic or recurrent back problems beginning in the service. The Veteran entered the service with scoliosis, which was a chronic condition which could cause chronic back problems to include pain and loss of range of motion. The examiner said that a nexus for service connection could not be made at this time due to the missing elements of origin and chronicity of the current condition dating to service. A disability which began in service or was cause by some event in service must be considered "chronic" before a nexus for service connection could be established. X-rays done on February 14, 1986, clearly showed that even 16 years after separation the Veteran still did not have spondylosis or degenerative disc disease, and these conditions were clearly incurred many years after service. There was no permanent residual or chronic disability subject to service connection shown by the service medical records or demonstrated by evidence from the period immediately following separation from service. Therefore, a nexus for service connection for the lower back could not be made. In a July 2021 VA opinion, the examiner clarified that the entrance examination did not note scoliosis and so therefore, it was a developmental disease. The Board finds these VA opinions inadequate. First, the examiners did not list all current diagnoses pertaining to the Veteran's back and specify whether each was present during service. Second, the July 2021 VA opinion that answered whether the Veteran's scoliosis was a congenital or developmental disease based the opinion on an inaccurate factual premise. The Veteran's scoliosis, contrary to the examiner's opinion, was present on the entrance examination. Third, none of the examiners determine the date of onset of the Veteran's degenerative lumbar spondylosis. These are Stegall violation. Finally, in the second May 2021 VA opinion, the examiner said that the Veteran entered the service with scoliosis, which was a chronic condition which could cause chronic back problems to include pain and loss of range of motion, but then found that there was no evidence of chronicity and therefore provided a negative nexus opinion. The examiner based this lack of chronicity on the evidence that 16 years later x-rays did not show spondylosis or degenerative disc disease. The Board notes that the examiner failed to consider and discuss the Veteran's statements of continuity. Thus, on remand, an additional VA opinion should be obtained to determine the etiology of the Veteran's back condition. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. The Veteran should assist with locating these records, if possible. Associate these records with the claims file. 2. Then, obtain a VA opinion from an examiner different from the January 2021, February 2021, May 2021, and July 2021 examiners, to determine the etiology of the Veteran's back condition. The claims file and a copy of this remand must be made available for review. Following a review of the pertinent evidence, the examiner must determine the following: (a) List all current diagnoses pertaining to the Veteran's back. For each diagnosis, specify whether it was present during service. Also, provide the date of onset of the Veteran's degenerative lumbar spondylosis. (b) State whether the Veteran's scoliosis, which was noted on induction examination, is a congenital or developmental disease. The examiner is informed a disease generally refers to a condition that is considered capable of improving or deteriorating. VAOPGPREC 82-90. (c) Considering a pre-existing injury, the examiner must determine whether a pre-existing back condition was aggravated beyond the natural progression of the disease. (d) If a back condition was not aggravated during service, is it at least as likely as not (50 percent or greater probability) that a current back condition was incurred during service or is related to any event or injury during service. A clear rationale must be provided for all opinions expressed. The examiner must consider and discuss the Veteran's lay statements, including continuity of symptomatology, and the fact that the Veteran experienced pain without a formal diagnosis at the time of the x-ray. The examiner must also discuss the May 2021 VA examiner's opinion that the Veteran's scoliosis, which was a chronic condition, could cause chronic back problems to include pain and loss of range of motion. If the examiner is unable to provide an opinion without resorting to mere speculation, then the examiner must state this and provide any information needed to make an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brown, Saudiee 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.