Citation Nr: 21032094 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-38 873 DATE: May 25, 2021 ORDER Service connection for scoliosis is denied. FINDING OF FACT The competent medical evidence of record clearly and unmistakably shows the Veteran's scoliosis preexisted service and was not aggravated in service. CONCLUSION OF LAW The criteria for service connection for scoliosis have not been met. 38 U.S.C. §§ 1110, 1111, 1131, 1132, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded this and a claim for service connection for bilateral hearing loss for further development, which has since been completed. Subsequently, in a July 2020 rating decision, the RO granted service connection for bilateral hearing loss. As this constitutes a full award of the benefit sought on appeal, this issue is no longer before the Board. Additional evidence was added to the Veteran's claims file after the issuance of the July 2020 supplemental statement of the case. However, none of this evidence is relevant to the issue decided herein, so a waiver is not required. Entitlement to service connection for scoliosis. The Veteran contends that his scoliosis was caused or aggravated by carrying 50 caliber machine gun barrels on his right shoulder, while stationed in Germany during service. He avers that he served his time in service, served a year and a half in the Army Reserves as an Armorer, but was not allowed to re-enlist in the Army Reserves because of his scoliosis condition. See August 2020 VA Form 21-4138, Statement in Support of Claim. His DD Form 214 reflects his military occupational specialty (MOS) as infantryman. Military service records confirm assignment in Germany. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). 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, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. See 38 U.S.C. §§ 1111, 1132; 38 C.F.R. § 3.304(b). The presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it preexisted service. Gilbert v. Shinseki, 26 Vet. App. 48, 55 (2012), aff'd 749 F.3d 1370 (Fed. Cir. 2014). As an initial matter, there is a question as to whether the Veteran's scoliosis preexisted his military service. The Veteran's September 1973 entrance examination showed the spine as normal on clinical evaluation. Therefore, the presumption of soundness attaches with respect to a spine condition. 38 C.F.R. § 3.304(b). Because the presumption of soundness attaches with respect to this disability, there must be clear and unmistakable evidence that the disorder both preexisted service and was not aggravated in service. Id; see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306(b). Clear and unmistakable evidence means that the evidence "'cannot be misinterpreted and misunderstood, i.e., it is undebatable.'" Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). As such, the remaining question for the Board to address is whether there was clear and unmistakable evidence that the Veteran's scoliosis disability preexisted service and whether it was aggravated in service for service connection purposes. For the reasons that follow, the Board finds that the Veteran's scoliosis disability did clearly and unmistakably preexist his entry to service, but the competent and credible evidence showed that it was not aggravated in service to warrant service connection. During service, the Veteran was hospitalized in October 1975 for pneumonia in his right upper lung. Prior to admission to the hospital, he had a physical examination that showed his back was normal. On the Veteran's July 1976 separation examination, the clinician noted thoracic scoliosis was present, even though the spine was considered normal on clinical evaluation. X-Ray imaging of his chest showed there was thoracic scoliosis present but noted that the exam was otherwise unremarkable. The Veteran denied recurrent back pain, arthritis, rheumatism, or bursitis, and bone, joint, or other deformity on his July 1976 Report of Medical History and stated that his health was good. Post-service, the Veteran sought VA treatment in August 2006. The physician noted scoliosis on examination. The Veteran was next seen in February 2008 for an annual VA physical. He complained of some chronic low back pain and reported known thoracic spine scoliosis. X-Ray imaging showed normal alignment with no significant scoliosis. The scoliosis standing examination showed 26 degrees right apex scoliosis with moderate diffuse degenerative disc disease (DDD) of the thoracic spine and minimal compensatory curvature in his lumbar spine, with left apex scoliosis measuring 13 degrees. At an April 2008 VA orthopedic consultation, the Veteran complained of neck and upper and lower back discomfort for 20 plus years. He reported that during active service, he carried large ordinance on the right shoulder, and after separation from service, he tried to re-enlist, but then failed his physical because of his scoliosis. He believed this may be a service-connectable disability. Physical examination showed there was right thoracic, left lumbar moderate thoracolumbar scoliosis with some mild right scapular razoring. X-Ray imaging results showed right thoracic left lumbar curve compatible with idiopathic scoliosis. The VA-treating orthopedist assessed him with idiopathic scoliosis not service-connected with mild muscle imbalance symptoms. The Veteran was afforded a VA examination in September 2008. He did not recall any orthopedic difficulty before joining service nor during service, to include basic training. The Veteran had no pain when he learned he had scoliosis. He reported feeling "totally normal in the back until about 2006", denied back pain prior to 2006, and had some neck and back symptoms since then. The examiner noted a March 2008 X-Ray image showed mild thoracic and lumbar scoliosis. The examiner assessed that a mild scoliosis was probably not symptomatic and that this scoliosis had been recognized since the 1970s, but never had any symptoms until 2006. The continued back pain was diagnosed as chronic muscle strain and that his present symptoms starting in 2006 were probably not related to scoliosis. The examiner also found that the mild to moderate scoliosis is a developmental problem, not caused by or related to the military. The onset of back symptoms in 2006 was also not related to service. In an October 2008 addendum, the examiner noted that recent X-Ray imaging results showed a developmental abnormality with the pars interarticularis defect as well as degenerative disc disease. The examiner added degenerative disc disease, residuals of apophysitis, and bilateral pars interarticularis defect as an additional diagnosis, but no change was made to the scoliosis diagnosis. A November 2008 VA treatment record noted the Veteran has significant thoracic spine scoliosis. Pursuant to the Board's remand, the Veteran was afforded a VA contract examination for his back in December 2019. He was diagnosed with degenerative arthritis of the spine, spondylolisthesis, and thoracolumbar scoliosis. The Veteran reported that he was told he found to have scoliosis, but he was never told about it until he tried to re-enlist in 1978; his back became painful years later. X-Ray imaging showed upper thoracic levoscoliosis and lower thoracic dextroscoliosis, with some mild mid-thoracic degenerative disc changes; lumbar levoscoliosis; S-1 spondylolisthesis; and degenerative disc changes. After reviewing his claims file, the examiner opined that the condition was at least as likely as not idiopathic in nature, clearly and unmistakably existed prior to service, and was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner explained that as a baseline, the Veteran was asymptomatic, as there was no documented objective evidence of scoliosis per the September 1973 enlistment records; his noted July 1976 separation records showed asymptomatic thoracic scoliosis. The Veteran was asymptomatic to his back prior to service and continued to be asymptomatic (with documentation of having thoracic scoliosis) upon separation from service. Even though it was not documented in the September 1973 enlistment examination, the scoliosis had existed prior to service. The examiner explained it had at least as likely as not existed in a mild asymptomatic form and was less likely aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner further explained that scoliosis is a sideways curvature of the spine that occurred most often during the growth spurt prior to puberty; most cases of scoliosis are mild. The reviewed records showed the Veteran was enlisted with having no back complaints and examination revealed normal examination per the September 1973 notes. There is no documented evidence on the records reviewed to indicate that the Veteran had obvious medical conditions likely to contribute his scoliosis. In addition, the examiner considered the Veteran's assertion that carrying 50 caliber machine gun barrels on his right shoulder during service in Germany caused or aggravated his scoliosis. However, the examiner opined that the activities during service were less likely a contributing factor to his asymptomatic scoliosis found during separation. The examiner explained that his scoliosis is idiopathic and mild in nature, which rendered it very likely to be easily overlooked during enlistment examination, and was also clinically consistent with impressions of other clinicians who evaluated the Veteran, such as in the September 2008 record, with documentation of having conditions thought to be sequelae of juvenile kyphosis. Given the foregoing, the Board finds that service connection is not warranted for the reasons stated below. For the first part of the analysis, the Board notes that the opinions of the September 2008 VA examiner and December 2019 VA contract examiner both indicated that the Veteran's scoliosis clearly and unmistakably existed prior to service. Therefore, the next step is to consider whether the scoliosis was aggravated in service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service" or that any "increase in disability [was] due to the natural progress of the preexisting condition." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Here, the competent and probative evidence is against finding the scoliosis was aggravated during service, to include consideration of the Veteran's contentions regarding his MOS duties. The Board finds most probative the September 2008 VA medical opinion and the December 2019 VA contract medical opinion that the Veteran's scoliosis was not aggravated beyond its natural progression by an in-service event, injury, or illness. In support of these opinions, the examiners stated that the scoliosis was of a congenital or developmental defect, which meant the Veteran's spine developed unnatural from birth; and the scoliosis was mild in nature. The separation examination noted thoracic scoliosis, and it was asymptomatic. The Veteran had no pain when he learned he had scoliosis. The evidence of record did not support a superimposed disorder during the Veteran's active duty, nor showed aggravation. The Board acknowledges that the Veteran has been diagnosed with other back disorders besides scoliosis, to include diagnoses of chronic muscle strain, DDD of the lumbar spine, and spondylolisthesis. However, the preponderance of the competent and objective evidence of record is against a finding that the Veteran otherwise they were incurred in or otherwise the result of his active service to result as a superimposed disorder or aggravation. In pertinent part, such disorders were first diagnosed years after his separation from service. The February 2008 VA X-Ray imaging, also many years after service, showed normal alignment with no significant scoliosis. The December 2019 VA contract examiner noted, in part, that the Veteran was asymptomatic to his back upon separation from service. The December 2019 VA contract medical opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The in-service October 1975 hospitalization showed his back was normal. The Board notes that the examiner's opinion regarding aggravation appears consistent with the fact that the service treatment records contained no entries showing treatment for back problems, his spine was evaluated as normal at his separation examination, and the Veteran denied recurrent back pain, arthritis, rheumatism, or bursitis, and bone, joint, or other deformity at the time of that separation examination. In view of the foregoing, the Board finds that the competent medical and other evidence of record clearly and unmistakably was not aggravated therein. As the presumption of soundness is rebutted, the second prong is not met and entitlement to service connection for scoliosis is not warranted. The Board recognizes that the Veteran sincerely believes his current scoliosis was caused or aggravated by active service, but as a lay person he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of orthopedics of the spine and interpretation of complicated diagnostic medical testing. Therefore, it is outside his competence because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the September 2008 VA medical opinion and the December 2019 VA contract medical opinion. These opinions, when taken together, are probative and there is no contrary medical nexus opinion. In short, as the preponderance of the evidence is against the claim for service connection; there is no doubt to be resolved. For these reasons, the Board finds that service connection must be denied for scoliosis. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Tang, 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.