Citation Nr: 21031335 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 10-35 674 DATE: May 21, 2021 REMANDED Entitlement to service connection for a back disability to include thoracic scoliosis and degenerative disc disease and arthritis of the low back is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1963 to October 1964. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision from a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a May 2013 Board hearing before the undersigned. A transcript of the hearing is of record. In June 2019, the Board denied the Veteran's claim for service connection for a back disability. The Veteran appealed the June 2019 Board decision. In October 2020, the United States Court of Appeals for Veterans Claims (Court) vacated the June 2019 Board decision that denied the Veteran's claim for service connection for a back disability and returned the case to the Board for action in compliance with the Court's order. 1. Entitlement to service connection for a back disability. The Veteran contends his back disability is related to his service. The primary issues in this case are whether the Veteran's diagnosed lumbar degenerative disc disease is etiologically related to service and/or whether the Veteran's preexisting scoliosis (determined to be a congenital disease) was clearly and unmistakably was not permanently aggravated by service. In December 2018, VA obtained a medical opinion. The December 2018 examiner opined that it is at least as likely as not that the preexisting scoliosis of the thoracic spine is a disease capable of deterioration and, while not generally capable of improvement, often is asymptomatic for a long time. The examiner further opined that the evidence of the record clearly and unmistakably shows that the preexisting scoliosis was not permanently aggravated by service and that any increase in disability was due to the natural progression that occurs with scoliosis and/or additionally impacted by the Veteran's injury in 1966 (about 2-3 years after service). Additionally, there was a post-service lifting injury. The examiner indicated that a medical record review repeatedly indicated that the condition was not symptomatic until 1966, after a lifting injury. The examiner further opined that the current condition of scoliosis was attributed to the natural progress of scoliosis and to the post-service injury in 1966 after which time the back pain was symptomatic. The examiner opined that any current lumbosacral condition was due to the typical changes with aging and/or secondary to thoracic scoliosis. It was less likely than not that there was a back disability related to service. The examiner reasoned that the only back pain mentioned in the service treatment records was related to kidney stones. After less than two years of service, the orthopedic spine provider who was consulted regarding the scoliosis films in 1964 at the separation examination indicated that there was no history of pain (presumably no history of pain reported by the Veteran at that time) and that there was an old right dorsal scoliosis and he did not expect it to change. There was no subsequent indication of chronic pain until the lifting injury 1966, warranting surgery in 1967. Regarding the Veteran's private physician July 2014 opinion that wearing a field pack in the service may have contributed ot the pain and discomfort, the examiner noted that even though the private opinion was within the realm of possibility, based on the evidence in the medical records over time and sound medical principles, it was the opinion of the VA examiner that the preponderance of the evidence supported the conclusion that it was less likely than not that the scoliosis was permanently aggravated beyond the natural progression by military service. In October 2020, the Court found that the Board relied on inadequate medical examinations and its statement of reasons or bases was otherwise inadequate. First, the Court noted that December 2018 medical opinion was inadequate. The Court explained that the December 2018 examiner's conclusion that the Veteran's in-service back pain was related to his kidney stones did not comport with all of the service treatment records. Specifically, while the Veteran's reports of back pain in November 1963, December 1963, and January 1964 all related to kidney stones, the Veteran's report of back pain in July 1963 did not refer to any kidney stones. Second, the Court found the December 2018 examiner's opinion regarding aggravation of the Veteran's scoliosis was not adequate. The Court explained that if the July 1963 report of back pain was not related to kidney stones, then logically, it could be symptoms and aggravation of scoliosis. The Court also found the examiner did not properly explain why a post-service lifting injury would aggravate scoliosis but carrying heavy packs (as the private January 2014 opinion discussed) would not aggravate the scoliosis. Third, the Court found that the January 2014 VA examiner failed to differentiate between the various reports of back pain or explain how the July 1963 report of back pain was specifically related to kidney stones. Finally, the Court found the Board's discussion regarding the Veteran's statements inadequate. Specifically, the Board failed to discuss the significance, if any, of back pain during service as it related to the VA examiner's opinions that the Veteran did not experience non-kidney-stone-related back pain. As the December 2018 medical opinion is not adequate for adjudication, a remand is required in order to obtain an adequate medical opinion. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from an appropriate clinician regarding the Veteran's back disability including his thoracic scoliosis. If the examiner indicates that additional examination of the Veteran is necessary to respond to the Board remand inquiry, the Veteran should be afforded such an examination. The examiner must provide the following opinions: (a.) Does the evidence of record clearly and unmistakably (i.e., undebatably) show that the preexisting thoracic scoliosis disease was not aggravated beyond the natural progression of the disease in service? i. The examiner must discuss, with complete rationale, the Veteran's service treatment records which indicate that the Veteran reported back pain in July 1963 and whether such pain was a symptom and/or aggravation of his scoliosis. The Board notes that the service treatment records do not indicate any kidney stone related pain in the July 1963 service treatment record. ii. The examiner must address the December 2018 VA examiner's reasoning that the Veteran's scoliosis was possibly aggravated by a post-service lifting incident. Specifically, the examiner must explain why a post-service lifting injury would aggravate the Veteran's preexisting scoliosis as opposed to carrying heavy packs in service. iii. The examiner must address the January 2014 private opinion that walking with a full field pack on hard or gravel road surfaces could have aggravated the Veteran's scoliosis. iv. The examiner must address the Veteran's competent statements that he had back pain in service that continued after service prior to his post-service back injury. (b.) Whether it is at least as likely as not the Veteran's degenerative disc disease and arthritis of the low back is etiologically related to service, to include his in-service report of back pain in July 1963. i. The examiner must address the Veteran's competent statements that he had back pain in service that continued after service prior to his post-service back injury. (c.) The examiner must provide a complete rationale for each opinion provided. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.