Citation Nr: 21029562 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 08-24 381 DATE: May 13, 2021 REMANDED Entitlement to service connection for a thoracolumbar spine disability, to include levoscoliosis and degenerative joint disease (DJD) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from December 1968 to April 1970. His service medals and decorations include the Combat Action Ribbon. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO or AOJ). The Veteran testified before the undersigned Veterans Law Judge in an April 2015 Video Conference Board Hearing. A transcript of that hearing is of record. In a June 2017 decision, the Board, in pertinent part, denied entitlement to service connection for a low back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a May 2018 Amended Joint Motion for Partial Remand (JMPR) and vacated that portion of the Board's decision that denied entitlement to service connection for a low back disability. The case was remanded back to the Board, and in October 2019, the Board again denied the claim of entitlement to service connection for a thoracolumbar spine disability, to include levoscoliosis and DJD. The Veteran appealed to the Court a second time, and in a November 2020 Order, the Court granted a November 2020 Joint Motion for Remand (JMR) and vacated the October 2019 decision and remanded the case back to the Board. The claim for entitlement to service connection for a thoracolumbar spine disability, to include levoscoliosis and DJD has now returned to the Board for additional appellate action. The Board notes that a mild scoliosis disability and a pelvic tilt disability of the left leg was noted on the Veteran's May 1968 pre-induction examination. Curvature of the spine and unequal leg length was similarly noted on the December 1968 entrance examination record. Current diagnoses of levoscoliosis and DJD are noted on VA examination. The Veteran argues that his back condition worsened in service due to carrying packs, the distances he had to walk, and the consistent movement without rest. He testified that the only accommodation provided to him for his back condition during service was a "left raised shoe." The Veteran further testified that while in combat, he felt his back was further injured in the course of his duties and that he continues to have problems with his back. The Veteran relates his current back problems to the aggravation suffered while in the military. See April 2015 hearing transcript. In February 2021, the Veteran submitted a memorandum challenging the adequacy of the June 2019 VA spine opinions. Specifically, the Veteran contends that the June 2019 VA opinion regarding levoscoliosis did not adequately explain the premise behind the conclusion that while the Veteran reported that he continued to suffer back pain while in service, such is typical of the condition and is not beyond normal progression for this disorder. Moreover, the Veteran argues that the VA examiner did not consider his lay assertion that his back pain worsened in service and never got better. In addition, while the June 2019 VA opinion regarding DJD states that there is no evidence that the Veteran's DJD was related to back pain reported while in service, the examiner did not address whether the Veteran's DJD was related to his levoscoliosis condition. In this regard, the Veteran has reported his current back condition, to include DJD, is related to the in-service aggravation of his levoscoliosis condition. The law states that a combat Veteran's assertions of an event during combat are to be presumed credible if consistent with the time, place, and circumstances of his service. See 38 U.S.C. § 1154 (b); see also Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996). Even if the Veteran's service treatment records do not document back complaints, if the Veteran reported that his back pain worsened during service and never got better, he is presumed credible. The matter is REMANDED for the following action: Schedule the Veteran for an examination with an appropriate clinician. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran's claims file. The claims file, including a copy of this Remand, must be reviewed by the examiner in conjunction with the examination. Following review of the claims file and examination of the Veteran, the examiner is asked to provide the following opinions: A. Regarding the Veteran's levoscoliosis, which clearly and unmistakably predated the Veteran's active service: (i) Whether Veteran's levoscoliosis underwent a non-temporary increase in severity during his active service. (ii) If an increase in severity is established, provide an opinion as to whether there is clear and unmistakable evidence (undebatable) that the Veteran's levoscoliosis was not aggravated beyond its natural progression. The examiner is reminded that because this is a combat Veteran, his reports regarding his back are credible. The examiner is asked to accept as true the Veteran's reports that he carried packs, walked distances, and had consistent movement without rest, during combat, with a "left raised shoe" which worsened his levoscoliosis condition. B. Regarding the Veteran's DJD: (iii) Whether the Veteran's DJD is at least as likely as not related to an in-service injury, event, or disease. (iv) Whether it is at least likely as not that the Veteran's DJD is proximately due to his levoscoliosis condition. (v) Whether it is at least likely as not that the Veteran's DJD underwent any incremental increase in disability, regardless of its permanence, due to his levoscoliosis condition. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (vi) The examiner should state whether it is at least as likely as not (50 percent or greater probability) that DJD manifested to a compensable degree within one year of separation from service. In providing this opinion, the examiner must address the Veteran's lay statements regarding the onset and continuity of symptomatology since onset and/or since separation from service. A complete rationale for any opinion rendered must be provided. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.