Citation Nr: 21041132 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 17-39 757 DATE: July 8, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for residuals back injury with mild degenerative changes is remanded. Entitlement to service connection for scoliosis, separate from the evaluation of residuals back injury with mild degenerative changes, is remanded. REASONS FOR REMAND The Veteran, who is the appellant in this case, served on active duty from October 1987 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated February 2016 and December 2016 of a Department of Veterans' Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ). In June 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. The record reflects that the Veteran's most recent VA compensation examination for his service-connected residuals of back injury with mild degenerative changes occurred in February 2016. The fact that a VA examination is considered "stale" is not a valid basis, unto itself, to provide the Veteran with another VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-83 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995). Here, during the June 2021 Board hearing, the Veteran indicated that his low back symptoms have grown worse. Accordingly, a new VA examination should be afforded to him. See Snuffer, 10 Vet. App. at 403 (a veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination). Regarding the Veteran's claim for entitlement to service connection for scoliosis, a VA examiner opined in October 2016 that the Veteran's diagnosed scoliosis is less likely than not "due to" his degenerative joint disease of the spine; however, the examiner did not address whether the scoliosis was aggravated by the Veteran's service-connected residuals of back injury with mild degenerative changes. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding that an opinion will be considered inadequate unless it addresses both the caused by and aggravation avenues for secondary service-connection under 38 C.F.R. § 3.310(b)). Further, the examiner did not opine as to whether the Veteran's scoliosis is a residual of the Veteran's initial in-service back injury. Therefore, the Board finds the October 2016 opinion inadequate. Accordingly, on remand a VA opinion must be obtained addressing the etiology of the Veteran's currently diagnosed scoliosis. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide an opinion, it must ensure that the opinion is adequate). Lastly, the Board notes that no VA treatment records have been associated with the Veteran's electronic claims file for several years. Therefore, on remand the AOJ must obtain outstanding VA treatment records, if any. As discussed during the Board hearing, the Veteran may submit medical records from his chiropractor. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Then, schedule the Veteran for a VA thoracolumbar examination by an appropriately qualified examiner other than the examiner who conducted the February 2016 VA examination to determine the current severity of his service-connected residuals of back injury with mild degenerative changes. The claims file, and a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail and correlated to a specific diagnosis. After a complete review of the claims file, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of his service-connected residuals of back injury with mild degenerative changes. (b) Provide an opinion as to whether it is at least as likely as not (50 percent or higher probability) that the currently diagnosed scoliosis onset during service or is otherwise etiologically related to service, to include the in-service back injury that was the basis for the grant of service connection for residuals of a back injury. (c) If the answer to (b) is negative, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the currently diagnosed scoliosis was CAUSED or AGGRAVATED by the service-connected residuals of back injury with mild degenerative changes or other service-connected disability. *Any increase/aggravation is sufficient, permanent aggravation is NOT required. See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019) (permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease). The examiner must provide a complete rationale for all opinions proffered. 3. Thereafter, ensure that the examiner has substantially responded to the questions posed by the Board, and if not, take corrective action. Then, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Farrell, 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.