Citation Nr: 21028802 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 19-09 786 DATE: May 12, 2021 REMANDED Entitlement to service connection for a low back disability, to include as secondary to service-connected pes planus, is remanded. Whether new and material evidence has been submitted to warrant reopening a claim for service connection for bilateral carpal tunnel syndrome (CTS) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from December 1997 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Previously, this matter was before the Board in August 2019, at which time the Board remanded the Veteran's claims for entitlement to service connection for a low back disability, reopening of a prior claim for service connection for CTS, and revision of a December 2006 rating decision denying service connection for CTS based on clear and unmistakable error, or CUE. In July 2020, the RO issued a rating decision adjudicating the claim for revision of the December 2006 rating decision. The same day, the RO issued a supplemental statement of the case (SSOC) denying both the claim for service connection for the low back disability and the claim to reopen service connection for CTS. The matters readjudicated in the SSOC now return to the Board. 1. Low back The Veteran asserts that she is entitled to service connection for a low back disability secondary to her service-connected pes planus. Alternatively, the record reasonably raises a theory of entitlement to service connection on a direct basis, as she described and received treatment for low back pain on multiple occasions during service. Previously, the RO arranged for the Veteran to undergo a VA examination in November 2015. At that VA examination, the examiner noted that an April 24, 2012, x-ray indicated that she had mild scoliosis. She quoted the results, which stated, "A mild scoliosis originates in the sacral base plane and extends to the left between L2 and L3 at approximately 2 degrees the curvature then extends further to the left two between T9 and T10 at angle of 7 degrees. A compensatory curvature then extends back to the right two between T4 and T5 at an angle of approximately 6 degrees the curvature then straightens into the cervical spine." The VA examiner diagnosed congenital scoliosis of the thoracolumbar spine and ultimately rendered an opinion that it had clearly and unmistakably pre-existed service and was not aggravated beyond its natural progression during service. Notably, the November 2015 VA examiner did not perform any x-rays or other tests in connection with the VA examination, and did not address the Veteran's lay contentions or service treatment records discussing low back pain. Subsequently, the Veteran was afforded a second VA examination in connection with her back in January 2020. The January 2020 VA examiner noted that the Veteran took gabapentin regularly and complained that her back felt "out of whack." The examiner did not perform any x-rays but instead reiterated the November 2015 VA examiner's findings that there were "multiple places" in the claims file stating that she had an x-ray in April 2012 showing mild scoliosis. The January 2020 VA examiner did not provide an opinion specifically addressing whether the condition clearly and unmistakably pre-existed her service but did opine that it had not been aggravated beyond its natural progression because her examination results revealed normal range of motion. The Board finds the VA examination reports obtained thus far are inadequate in various respects and, as such, entitled to no probative weight. In the interest of obtaining clear and reliable findings with respect to the nature and etiology of the Veteran's claimed low back disability, remand is necessary to obtain a new VA examination. To that end, the Board notes that it is unclear from the record whether the Veteran has indeed been formally diagnosed with a form of scoliosis, let alone congenital scoliosis or scoliosis that otherwise pre-existed service. For instance, although her service treatment records document extensive chiropractic care during service, they are silent for any findings with respect to abnormal curvature of the spine. Indeed, an October 2003 x-ray reflects a normal lumbosacral spine series. Although April 2012 VA treatment records indicate that she was informed by a private chiropractor that she had mild scoliosis, the claims file contains neither the private treatment records indicative of scoliosis nor the April 2012 VA-generated x-ray results to which the November 2015 VA examiner referred. Moreover, the Board takes judicial notice that a positive diagnosis of scoliosis is made based on a coronal curvature measured on a post-anterior radiograph of greater than 10 degrees. See, e.g., Scoliosis, AM. ASS'N OF NEUROLOGICAL SURGEONS, available at https://www.aans.org/Patients/Neurological-Conditions-and-Treatments/Scoliosis (last visited Apr. 30, 2021). The x-ray results the November 2015 VA examiner referenced do not specify whether she has a coronal curvature measured on a post-anterior radiograph of greater than 10 degrees. Moreover, neither the November 2015 nor January 2020 VA examiner performed any imaging studies or other tests to determine whether the Veteran currently had any form of scoliosis. In addition, the Board notes that while scoliosis can be a congenital condition, it has other etiologies as well. For instance, scoliosis can be secondary to neuromuscular diseases or idiopathic as well as congenital. However, the November 2015 VA examiner took for granted, without providing an explanation, that the Veteran had congenital scoliosis. Last, the Veteran's VA and private treatment records are entirely silent for any complaints of, treatment for, or other references to scoliosis, absent the brief notes in VA treatment records from 2012. Instead, they reflect complaints of chronic low back pain or, in the case of an August 2020 private evaluation with Dr. A.K.-D., malpositioning in the spine and painful contractions of the spinal muscles. As such, it is unclear whether the Veteran does in fact have a diagnosis of congenital scoliosis, or, if so, whether that is the only relevant condition that causes her back pain. Even assuming the Veteran had a diagnosis of scoliosis that clearly and unmistakably pre-existed her service, the November 2015 and January 2020 VA medical opinions are not sufficiently detailed. As set forth in the Board's August 2019 remand decision, the November 2015 VA examiner's opinion failed to discuss relevant service treatment records before opining that the Veteran's condition had not been aggravated beyond its natural progression by service. The January 2020 VA examiner's opinion contains similar flaws. Moreover, the January 2020 VA examiner assumed that because the Veteran's range of motion examination results were normal, the Veteran's condition had not been aggravated by service. This finding fails to address the Veteran's lay statements regarding low back pain, or whether the Veteran's examination results would have been different if she were not regularly taking gabapentin. Moreover, an August 2020 examination performed by Dr. A.K.-D. reveals pain on range of motion testing. Furthermore, assuming for the sake of argument that the Veteran does have congenital scoliosis, neither the November 2015 nor January 2020 VA examiner has indicated whether congenital scoliosis is a congenital defect or disease. Instead, their opinions are focused on whether the Veteran's scoliosis was aggravated beyond its natural progression by service. Such an analysis is relevant in the case of a congenital disease, but not in the case of a congenital defect. It thus appears that they have assumed, without providing any explanation, that congenital scoliosis is a disease instead of a defect. In the case of a congenital defect, the examiner must opine as to whether there was a superimposed injury or disease due to the Veteran's service. Accordingly, remand is warranted to obtain a new VA examination regarding the nature and etiology of the Veteran's low back condition. 2. CTS In its prior August 2019 decision, the Board remanded the Veteran's claim for revision of a December 2006 rating decision denying service connection for CTS for the RO to adjudicate in the first instance whether the rating decision contained CUE. Because the outcome of the decision on CUE could potentially impact a decision as to whether new and material evidence had been received to reopen the claim for CTS, the Board also remanded the claim to reopen. See Harris v. Derwinski, As set forth above, the RO issued a rating decision adjudicating the CUE claim in the first instance on July 23, 2020. In connection with that rating decision, the RO sent the Veteran a notification letter dated July 29, 2020, informing her that she had one year from the date of the letter to appeal the rating decision if she disagreed with the RO's determination and outlining her various avenues for appeal. On the same day the July 2020 rating decision was issued, the RO issued an SSOC that readjudicated the claim of whether new and material evidence had been received to reopen the claim for service connection for CTS. The claim to reopen was subsequently returned to the Board. In light of the foregoing, it appears that the claim to reopen has been returned to the Board prematurely. To that end, the one-year period for the Veteran to submit a notice of disagreement with respect to the July 2020 rating decision discussing CUE in the December 2006 rating decision has not yet expired. The Board reiterates that the Veteran has until July 2021 to appeal this decision and VA regulations require the RO to provide her with an allowable timeframe within which to initiate an appeal with respect to her CUE claim. Thereafter, and only after this timeframe has expired or appropriate appellate development has occurred, can the Veteran's claim to reopen be fully and fairly readjudicated. Moreover, the Board notes that a finding that revision of the December 2006 rating decision based on CUE would render moot the claim to reopen service connection for CTS. As such, to avoid meaningless appellate review and a waste of judicial resources, adjudication of whether new and material evidence has been received to reopen a claim for service connection for CTS must be deferred. Accordingly, the matters are REMANDED for the following action: 1. After obtaining appropriate authorization, obtain any outstanding treatment records from any VA facility from which the Veteran has received treatment, including April 24, 2012, x-ray results that are referenced in VA treatment records but have not been associated with the claims file. If the Veteran has received additional private treatment, she should be afforded an appropriate opportunity to submit the medical records of such treatment. 2. Thereafter, schedule the Veteran for a VA examination with an appropriate clinician in connection with the Veteran's current claim for a low back disability. All indicated tests and studies, including imaging studies, must be performed. After reviewing the Veteran's claims file in its entirety, including a copy of this remand, and examining the Veteran, the examiner is asked to provide the following information and opinions: (a.) Identify all low back disorders that have been present during the pendency of the Veteran's appeal. The examiner is reminded that a disability does not require a known diagnosis or pathology; it only requires that the condition results in a functional limitation in earning capacity. If the Veteran does not have any diagnosable condition with respect to her low back, but has pain only, determine whether the pain causes functional loss. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). (b.) If the examiner diagnoses congenital scoliosis, the examiner should state whether it is a congenital disease or congenital defect. For VA purposes, a disease is any deviation from or interruption of the normal structure or function of any part, organ, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology, and prognosis may be known or unknown. A defect is defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. i. If the scoliosis is a congenital disease, the examiner must provide an opinion as to whether it was aggravated by any in-service event or injury (i.e., increased in severity beyond the natural progression of the disease). ii. If the scoliosis is a congenital defect, the examiner must provide an opinion as to whether there was a superimposed disease or injury due to the Veteran's service. (c.) If the examiner diagnoses a non-congenital form of scoliosis, provide an opinion as to whether it clearly and unmistakably pre-existed service. In answering this question, the examiner is asked whether it is possible to identify the exact onset of the condition. If it clearly and unmistakably pre-existed service, provide an opinion as to whether the condition was not aggravated by or during active duty. (d.) For each identified back disorder that is not a congenital disease or defect and that did not clearly and unmistakably pre-exist service, the examiner must provide an opinion as to i. Whether it is at least as likely as not (50 percent probability or greater) that the disorder had its onset in, or is otherwise related to the Veteran's service, and ii. Whether it is at least as likely as not (50 percent probability or greater) that the disorder was (a) caused or (b) aggravated by the Veteran's service-connected pes planus. A detailed rationale should accompany all opinions rendered. In doing so, the examiner must address the Veteran's lay statements regarding the onset and nature of her low back pain, as well as service treatment records documenting extensive chiropractic treatment and private treatment records from Dr. A.K.-D. If the examiner cannot provide any of the requested opinions without resorting to speculation, he or she should provide an explanation stating why this is so. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Advise the Veteran that she has until July 2021 to appeal the July 2020 rating decision which denied her motion to revise the December 2006 rating decision denying service connection for CTS on the basis of CUE. Provide her with adequate time to respond to the July 2020 rating decision, specifically until July 2021. If a timely appeal is filed, the RO shall undertake appropriate action. After completion of these directives, or the expiration of the applicable time period within which to appeal the July 2020 rating decision, readjudicate whether to reopen the claim for service connection for CTS. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, Associate Counsel 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.