Citation Nr: 21021650 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 14-34 538A DATE: April 13, 2021 REMANDED Entitlement to service connection for a lumbar spine disorder is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1969 to January 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2017 hearing. This issue was previously before the Board in March 2018, when it was remanded for further development, and in March 2020 when it was denied. The Veteran appealed the decision to the Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a joint motion for partial remand (JMR) vacating the Board’s denial of this issue, and remanded the matter to the Board for readjudication. The Court also dismissed the claim of entitlement to service connection for a right leg disorder, to include as secondary to the lumbar spine disorder, as the Veteran is not pursuing that appeal. Entitlement to service connection for a lumbar spine disorder is remanded. Remand is required for an addendum VA medical opinion. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The VA examiner’s failure to consider [a Veteran’s] testimony when formulating their opinion renders that opinion inadequate. McKinney v. McDonald, 28 Vet. App. 15, 30-31 (2016). When a Veteran has provided competent lay statements of an in-service injury, the examiner must consider and address them when developing their rationale. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that when the Veteran has provided lay testimony of an in-service injury, an examiner cannot ignore that lay evidence and base their opinion that there is no relationship to service on the absence of in-service corroborating medical records). A medical opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Veteran underwent a VA examination in September 2019 where the examiner found diagnoses of degenerative joint disease (DJD) of the lumbar spine and dextroscoliosis, and provided a negative nexus opinion. The examiner explained that while the Veteran was seen for an in-service fall and an X-ray indicated mild dextroscoliosis, the post-service records were silent for a low back disability until 2007 when the Veteran was diagnosed with lumbar spine DJD. The examiner stated that the lumbar spine DJD, diagnosed 35 years after service, was less likely than not incurred in or caused by the in-service injury, and opined that a diagnosis at the age of 59 was age appropriate with or without a prior injury. Addressing the dextroscoliosis, the examiner explained that per medical literature, the most common type of scoliosis is idiopathic scoliosis with no known cause, and that it may have a genetic predisposition. The examiner opined that it was not aggravated during service as evidenced by findings of mild dextroscoliosis in a 2013 X-ray. As the Court noted in the November 2020 JMR, the examiner failed to address the Veteran’s November 2017 Board hearing testimony. Notably, the Veteran asserted that following the 1970 fall, they were told that the lumbar spine disorder could be corrected by surgery, but that the surgery was risky, so the Veteran chose to put up with the pain instead, which has lasted to the present day. The Veteran also asserted this in an October 2012 statement. Also, at the hearing, the Veteran’s spouse testified that the Veteran was self-employed following service, and was a hard worker and worked long hours, so it was difficult to take time off to seek treatment. The Veteran’s spouse also stated that they have been married for nearly 50 years, and that the back pain has gotten progressively worse. The Court also found in the November 2020 JMR that while the examiner discussed the mild dextroscoliosis, they did not make the necessary findings in determining whether it was a congenital defect. As noted above, the examiner stated that the scoliosis may have a genetic predisposition, and opined that it was not aggravated during service. Under pertinent law and regulations, a Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. 38 U.S.C. § 1111. When no preexisting condition is noted upon entry, the Veteran is presumed to have been sound upon entry and the presumption of soundness arises. If the presumption of soundness applies, to rebut the presumption of soundness under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. The claimant is not required to show that the disease or injury increased in severity during service before VA’s duty under the second prong of this rebuttal standard attaches. VAOGCPREC 03-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). If the government fails to rebut the presumption of soundness, the claim is one for service connection, not aggravation. Id. at 1096; 38 U.S.C. § 1111. As there is no evidence of scoliosis at the time of the Veteran’s service entrance examination, the Veteran is presumed to have been sound upon entrance. 38 U.S.C. § 1111. No medical opinion currently of record addresses whether the Veteran’s diagnosed scoliosis was clearly and unmistakably preexisted service, and if so, whether there is clear and unmistakable evidence that it was not aggravated (permanently worsened beyond its natural progression) during service. The September 2019 examiner failed to use the correct standard here. Finally, as noted above, the examiner stated that the post-service medical records do not show evidence of a lumbar spine disorder until 2007; however, a careful review of the Veteran’s claims file reveals a July 1997 private treatment record (PTR) indicating pain in the back on the left side, and a May 2002 VA treatment record entry noting the Veteran’s complaint of occasional back pain. Accordingly, remand is required for an addendum VA medical opinion. The matters are REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and their representative. 2. After any additional records are associated with the claims file, obtain an addendum opinion regarding the etiology of the lumbar spine disorder from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a) Identify all current diagnoses referable to the lumbar spine. (b) Identify any lumbar spine disorders that clearly and unmistakably (undebatable) existed prior to the Veteran entering service. (c) For any lumbar spine disorder that clearly and unmistakably preexisted service, please offer an opinion as to whether the disorder was clearly and unmistakably (undebatable) NOT aggravated beyond natural progression during service. (d) For each current lumbar spine disorder (other than those that clearly and unmistakably preexisted service and were clearly and unmistakably not aggravated by service), please offer an opinion as to whether it is at least as likely as not the disorder is related to an in-service injury, event, or disease. In this regard, the examiner is asked to determine if the Veteran's in-service symptoms were at least as likely as not the onset of a current lumbar spine disability separate and distinct from any lumbar spine disability that preexisted service. (e) The examiner must address the following: 1) the July 1970 STRs noting complaints of back pain following a fall; 2) the July 1997 PTRs noting complaints of pain in the back on the left side; 3) the May 2002 VA treatment records noting reports of occasional back pain; 4) the October 2012 statement regarding how the Veteran opted not to have spinal surgery; 5) the testimony of the Veteran and their spouse at the November 2017 Board hearing; and 6) the December 2018 VA treatment records noting back pain for 40 years. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos 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.