Citation Nr: 21010741 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-44 024 DATE: February 25, 2021 REMANDED Entitlement to service connection for a low back disorder, to include scoliosis is remanded. REASONS FOR REMAND The Veteran served on active duty from July 2002 to July 2006 and from February 2010 to December 2010. In August 2020, the Board most recently remanded the Veteran’s claims for additional development. The Board finds that there was not substantial compliance with the remand directives for the issue on appeal as discussed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a low back disorder, to include scoliosis is remanded. The Veteran’s contention, in part, is that his pre-existing scoliosis was aggravated by his time in-service. It is noted that service connection may be granted for aggravation of a congenital disease but not a congenital defect. Service connection for a congenital defect may be granted if there is superimposed pathology on that defect during service. It is also contended that the low back disorder is the result of service activity. As noted above, in August 2020, the Board most recently remanded the Veteran’s claim and requested that the examiner clarify whether the Veteran’s scoliosis is a congenital defect or congenital disease. In the Veteran’s most recent August 2020 VA examiner opinion, the examiner only noted that the Veteran’s scoliosis is congenital, but did not specify if the Veteran’s disorder is a congenital disease or a congenital defect. As noted above, for VA compensation purposes, service connection “may be granted for diseases (but not defects) of congenital, developmental or familial origin.” see 38C.F.R. §3.303(c). As such, a VA medical opinion and possible examination is necessary to obtain an opinion addressing whether the Veteran’s scoliosis is a congenital defect or congenital disease. Thereafter, the examiner should discuss whether there was aggravation of the defect by a superimposed pathology. In remanding this case, the Board makes no credibility determination, expressed or implied, at this juncture. Moreover, it is generally noted that the scoliosis pre-existed the service in 2010. Significantly while most service treatment records for the first period of service have been determined to be undeliverable, a few records from that period exist in the claims folder with records of the second period of service. Specifically, a chest X-ray from September 2002 noting the presence of “slight levoscoliosis of the thoracic region.” This finding is approximately 2 months into the first period of service. It appears to be an incidental finding as the Veteran was being seen for symptoms of a cold with productive cough. Nevertheless, an examiner needs to enter an opinion as to whether this pathology clearly and unmistakably pre-existed the first period of service, and if so, provide the reasoning for that finding. The matter is REMANDED for the following action: 1. Return the Veteran’s claims file to the examiner who conducted the August 2020 VA examination for a low back disorder. If that examiner is no longer available, provide the Veteran’s claims file to a similarly qualified clinician. The entire claims file must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. After a thorough review of the medical history the examiner is requested to prepare a detailed opinion which answers the following questions: (a) What is the most appropriate bone disease diagnosis of the Veteran's back disorder? If congenital, would this be described as a congenital disease or a congenital defect? (b) As the first apparent notation of scoliosis is two months into his first period of service, as noted on chest X-ray, an it be determined with medical certainty that the disorder clearly and unmistakably pre-existed the first period of service? Please explain the bases of any opinion in detail. (c) Taking into consideration the Veteran’s STR's, lay statements, post service VA and private treatment records, is it as likely as not (that is a probability of 50 percent or greater) that the Veteran’s scoliosis disorder, if a disease, was clearly and unmistakably aggravated by his time in-service? If a pathology for the Veteran’s pre-existing scoliosis disorder is not found to be aggravated by service, that should be specifically set out with the factors considered in making that determination. (d) If the Veteran’s scoliosis is determined to be a congenital defect, is it as likely as not that there is superimposed acquired pathology that is the result of in-service activity, event, or occurrence? Please provide a complete rationale for all opinions entered and review the entire record including lay statements. If an examiner cannot provide any of the requested opinions, he/she must affirm that all procurable and assembled data was fully considered, and a detailed rationale must be provided for why an opinion cannot be rendered. The AOJ must ensure that the examiner’s report complies with this remand and answers the questions presented in the request. The AOJ must also ensure that the examiner documents consideration of the electronic claims file. If the report is insufficient, the AOJ should take corrective action. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elliot Harris 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.