Citation Nr: 21069687 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 15-34 729 DATE: November 19, 2021 REMANDED Entitlement to service connection for thoracic scoliosis with degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 to June 1971. The case is on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019 and June 2021, the Board remanded the case for further development. Specifically, in June 2021, the Board directed that the RO obtain an opinion as to the etiology of the Veteran's thoracic spine disorder. In connection with the claim, a medical opinion DBQ was obtained in July 2021. Unfortunately, there has not been substantial compliance with the Board's remand directives as the examiner provided inadequate rationale and failed to consider in-service notations of complaints relating to the thoracic spine. As such, regrettably, the Board must remand the claim again. Service connection for thoracic scoliosis with degenerative disc disease (DDD) is remanded. The Veteran contends that he has a thoracic spine disorder that preexisted his active service and was aggravated by such. Alternatively, he asserts that his back disorder is directly related to service. In a May 2021 Appellate Brief, the Veteran's representative stated that the Army enlisted the Veteran knowing that he had a pre-existing back disorder. Additionally, the Veteran's representative stated that the Veteran "lasted FOUR months before the conditions he has were too much to handle for him and the Army and he was discharged." The Veteran was afforded a Back (Thoracolumbar Spine) Conditions DBQ in July 2021, at which time the examiner noted a diagnosis of thoracic scoliosis with degenerative disc disease. At the time of the examination, the Veteran reported that while running in the military, his back gave out and he subsequently fell to the ground. The Veteran further reported that he was out on bedrest and discharged. Additionally, the Veteran reported that his condition onset in 1971 and that his condition had stayed the same since onset. Here, the examiner opined that it was clear and unmistakable that the Veteran had a back disorder which preexisted service. The examiner reasoned that the Veteran was in the military for only four months, and this was not enough time to cause the current degree of scoliosis and degenerative disc disease that he had. The examiner further reasoned that the Veteran had some back pain after a little more than a month, and an x-ray performed in March 1971 showed C-shaped gentle scoliosis and thoracic kyphosis. Additionally, the examiner stated that the Veteran clearly had this condition before entering the military and that he was not subjected to the usual repetitive trauma of hiking with heavy loads that would normally cause degenerative disc disease. Also, in one section of the report, the examiner opined that it was less likely than not that the Veteran's condition was incurred in or caused by a claimed in-service injury, event, or illness. Yet, in another section of the report, when asked whether it was at least as likely as not that the Veteran's condition was incurred in or caused by a clamed in-service injury, event, or illness, the examiner responded "N/A" and failed to provide any medical rationale. The Board finds that the July 2021 medical opinion obtained is inadequate and unclear. Here, the examiner concluded that the Veteran's back disorder both clearly and unmistakably existed prior to service and was not aggravated beyond its natural progression by service. However, the rationale for the negative opinion is conclusory in nature. Further, there was not substantial compliance with the remand directives as the examiner failed to consider or discuss the Veteran's additional in-service thoracic spine complaints (as there are two dated in March 1971 and another in May 1971). Similarly, the examiner failed to consider the Veteran's eventual separation from service in June 1971 due to thoracic spine scoliosis as instructed by the Board in its remand directives. The examiner was also not consistent throughout the report as to whether it was less likely than not that the Veteran's condition was related to service. VA's duty to assist the Veteran includes obtaining thorough and contemporaneous examinations where necessary to reach a decision on the claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Accordingly, on remand, it is necessary to obtain a medical opinion clarifying whether the Veteran's back disorder clearly and unmistakably preexisted his periods of active service and, if so, whether clear and unmistakable evidence shows that the condition was not aggravated by service. The matters are REMANDED for the following action: 1. Refer the claims file to an orthopedist or another appropriate medical professional (who has never treated the Veteran) to provide an opinion as to the etiology of the Veteran's thoracic spine disorder. The need for another examination is left to the discretion of the examiner. The examiner should address the following: (a) Is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran had a back disorder which preexisted service. (b) If so, is it clear and unmistakable (i.e., undebatable from a medical standpoint) that the Veteran's preexisting back disorder was not aggravated by service. Aggravation is an increase in severity beyond a temporary flare-up or natural progress of the disease. Please identify such evidence with specificity. (c) If the Veteran's back disorder did not preexist service or was aggravated during service, is it at least as likely as not (50 percent probability or greater) that the Veteran's current back disorder is related to, service. In providing the above opinions, the examiner must consider the Veteran's service treatment records related to thoracic spine complaints, to include those dated in March 1971 and May 1971, as well as the Veteran's June 1971 separation from service due to thoracic spine scoliosis. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Hanson 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.