Citation Nr: 21065364
Decision Date: 10/26/21	Archive Date: 10/26/21

DOCKET NO. 17-22 814
DATE: October 26, 2021

REMANDED

Service connection for a thoracolumbar spine disorder.

REASONS FOR REMAND

There is evidence that the Veteran had issues with his low back during service. The service treatment records (STRs) reflect numerous complaints of low back pain and back spasms. Additionally, a July 2012 retirement physical examination noted chronic intermittent back pain and a diagnosis of lumbago. 

Moreover, there is evidence that the Veteran had a thoracolumbar spine disability prior to service. To that end, the STRs show a July 2012 radiologic examination report reflecting "known scoliosis" and "worsening back pain." An impression of convex right scoliosis of the thoracic spine, measuring 12 degrees by the Cobb method, rotatory scoliosis of the thoracolumbar spine was reported. Further, at the July 2021 hearing, he testified that, prior to service, he was diagnosed with scoliosis when he was about 12 or 13 years old. 

However, the Veteran's entrance examination report is not in the file. Because the enlistment examination is not available, the Veteran is presumed sound. To rebut the presumption of sound condition, VA must show by clear and unmistakable evidence both (1) that the disease or injury existed prior to service, and (2) that the disease or injury was not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).

The November 2012 VA examiner diagnosed thoracolumbar spine scoliosis, but no medical nexus opinion was provided whether it was related to the Veteran's contentions that he has experienced ongoing low back pain since service. Thus, a medical opinion is needed.

The matter is REMANDED for the following actions:

1. Request from all appropriate source(s) copies of the Veteran's complete service treatment records, including a copy of his entrance examination, if conducted. Obtain and associate with the file any updated VA clinical records.

Efforts to procure the evidence should be fully documented, and should be discontinued only if it is concluded that the evidence sought does not exist or that further efforts to obtain the evidence would be futile. 

The evidence obtained, if any, should be associated with the claims file. If any of the records sought are not available, the claims file should be annotated to reflect that fact, and the Veteran and his representative should be notified of their right to submit alternative evidence.

2. Direct the claims file to a clinician to determine the nature and etiology of a low back disorder. The claims file, to include a copy of this remand must be made available to the clinician. 

Based on a review of the record, the clinician is asked to address the following: 

	Does the evidence of record clearly and unmistakably show that the Veteran had scoliosis that existed prior to service? 

	If the answer is "yes," does the evidence clearly and unmistakably show that the preexisting condition was NOT aggravated by service? 

	If the answer is "no," is it at least as likely as not (probability of 50 percent or greater) that the Veteran's claimed scoliosis is related to an in-service disease, event, or injury, to include in-service physical activity?

In forming the opinion, the clinician must consider the lay statements provided by the Veteran, and specifically address the relationship between the Veteran's current low back disorder and his in-service diagnosis of scoliosis.

A thorough rationale is required for any opinion rendered.

3. If the clinician determines that an examination is necessary in order to provide the requested opinions, then one should be scheduled.

 

 

L. HOWELL

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Grzeczkowicz 

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.