Citation Nr: 21007308 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 13-24 971 DATE: February 9, 2021 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1971 to February 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. The Board remanded the appeal for further development in October 2015, June 2018, and March 2020. The Board regrets additional delay, but unfortunately, another remand is required. Pursuant to the Board’s March 2020 remand directives, the Veteran was afforded a VA examination in May 2020. The Board asked the examiner to diagnose all current back disabilities and then for each back disability other than scoliosis diagnosed, to opine on whether the disability (1) clearly and unmistakably (undebatably) pre-existed service and, (2) if so, was the disability clearly and unmistakably not aggravated by active service beyond the normal progression of the disease. In addressing this question, the Board asked the examiner to explain why or why not, considering the Veteran’s reports of a back injury from a pre-service motorcycle accident as well as a “pinched nerve” at 13 requiring hospitalization. See November 1987 VA treatment record; April 2015 Board Hearing Transcript at 12-14. Additionally, the examiner was instructed to answer if any current back disability other than scoliosis did not clearly and unmistakably pre-exist service, or clearly and unmistakable pre-existed service but was clearly and unmistakably not aggravated during service, is it at least as likely as not (50 percent probability or more) that such disability had its onset during service, had its onset in the year immediately following service (in the case of any currently diagnosed arthritis), or is otherwise the result of a disease or injury in service, to include the cumulative impact of the duties associated with his military occupational specialty (MOS), which required heavy lifting. However, the May 2020 V examiner did not expressly diagnose all current back disabilities; provided an inadequate rationale regarding whether his back disability was not aggravated by service; did not address the Veteran’s pre-service “pinched nerve;” did not address the Veteran’s lay statements regarding the cumulative impact of the duties associated with his MOS, which required heavy lifting; did not apply the correct standard in discussing the presumption of soundness; and did not address whether scoliosis is a congenital defect or disease, as specifically requested by the Board. Instead, the examiner provided limited rationale for her negative opinion and recited the October 2019 VA examiner’s inadequate opinion as support. Thus, an addendum opinion is needed on remand to ensure substantial compliance with the Board’s June 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Any outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from a VA examiner other than the October 2019 and May 2020 examiners, preferably a physician, to determine the etiology of the Veteran’s back disability. The claims file, to include a copy of this remand, must be made available to the examiner for review, and the examination report must reflect that such a review was accomplished. The examiner is requested to provide an opinion as to the following questions: (a) Diagnose all current back disabilities, to include degenerative arthritis of the spine (see October 2019 VA examination report) and levoscoliosis. If a diagnosis of levoscoliosis is not warranted, please reconcile your finding with the February 1991 VA X-ray report noting levoscoliosis in the lower lumbar region. (b) For each back disability diagnosed other than scoliosis, did the disability (1) clearly and unmistakably (undebatably) pre-exist service and, (2) if so, was the disability clearly and unmistakably not aggravated by active service beyond the normal progression of the disease? Please explain why or why not, considering the Veteran’s reports of a back injury from a pre-service motorcycle accident as well as a “pinched nerve” at 13 requiring hospitalization. See November 1987 VA treatment record; April 2015 Board Hearing Transcript at 12-14. (c) If any current back disability other than scoliosis did not clearly and unmistakably pre-exist service, or clearly and unmistakable pre-existed service but was clearly and unmistakably not aggravated during service, is it at least as likely as not (50 percent probability or more) that such disability had its onset during service, had its onset in the year immediately following service (in the case of currently diagnosed arthritis), or is otherwise the result of a disease or injury in service, to include as a result of the cumulative impact of the duties associated with his MOS, which required heavy lifting? In addressing this question, please provide a discussion of whether such a relationship between the Veteran’s back disability and service is “medically plausible,” assuming as true the Veteran’s testimony as to a pre-existing back injury from a motorcycle accident that worsened while performing his duties in service and has continued to progress over the years. See Board Hearing Transcript at 12-14. (d) If scoliosis is identified, does it constitute a congenital defect or disease? Generally, for VA purposes, a defect differs from a disease in that the former is “more or less stationary in nature” while the latter is “capable of improving or deteriorating.” (e) If scoliosis is identified as a congenital defect, please opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such congenital defect during service, to include as the result of the cumulative impact of duties associated with his MOS, which required heavy lifting. If so, please describe the resultant disability. (f) If the scoliosis is identified as a congenital disease, please opine as to the whether it is at least as likely as not (a 50 percent or greater probability) that it was aggravated (worsened) by the Veteran’s periods of active service, to include as the result of the cumulative impact of duties associated with his MOS, which required heavy lifting. A complete rationale should be given for all opinions and conclusions expressed. If unable to provide a medical opinion without speculation, please indicate whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.