Citation Nr: 22012446 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 16-25 418 DATE: March 3, 2022 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the Air Force from November 1980 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the electronic claims file. In November 2019 and June 2021, the Board remanded the claim for service connection for a back disability to the Agency of Original Jurisdiction (AOJ) for further development. For the reasons discussed below, the Board finds that there has not been substantial compliance with the development sought as part of the June 2021 remand. Stegall v. West, 11 Vet. App. 268 (1998). 1. The Claim is Remanded. Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The Veteran contends current back disability is the result of active-duty service. Specifically, the Veteran asserts that his current degenerative disc disease is the result of his in-service duties. Further, there is indication in the record that the Veteran may have scoliosis of the lumbar spine. In an August 2019 Board hearing, the Veteran noted that he receives pain medication for his back condition and has been receiving VA treatment for his back pain for the past five years. Service treatment records (STRs) indicate that in a July 1980 service enlistment examination, the Veteran's spine and back were found to be clinically normal, and he did not report having a history of back pain. In April 1987, STRs show the Veteran had minimal scoliosis of double curvature and inferior convexity to the left. The January 2000 separation examination shows that the Veteran's spine was again found to be clinically normal. In an accompanying report of medical history, the Veteran indicated that he had recurrent back pain. A veteran is presumed to be in sound condition, except for defects, infirmities, or disorders noted when examined, accepted, and enrolled for service, or when clear and unmistakable evidence establishes that an injury or disease existed prior to service and was not aggravated by service. 38 U.S.C. § 1111. The burden is on the Government to rebut the presumption of sound condition upon induction by clear and unmistakable evidence showing that the disorder existed prior to service and was not aggravated by service. See VAOPGCPREC 3-2003 (holding in part, that 38 C.F.R. § 3.304(b) is inconsistent with 38 U.S.C. § 1111 to the extent it states that the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). Here, the Veteran was not noted to have any back problems in his enlistment examination; as such, the presumption of soundness applies. However, congenital or developmental "defects" automatically rebut the presumption of soundness because they, by definition, pre-existed service. 38 C.F.R. § 3.303(c). Defects are defined as "structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90 (July 18, 1990). Service connection is generally precluded by regulation for such "defects," because they are not "diseases" or "injuries" within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127; accord Terry v. Principi, 340 F.3d 1378, 1383-84 (2003); Barczewski v. Nicholson, 21 Vet. App. 174, 179 (2007). A congenital defect, however, can still be subject to superimposed disease or injury. VAOPGCPREC 82-90. If such superimposed disease or injury does occur, service connection may be warranted for the resulting disability. Id. If it is determined during service that a veteran suffers from a congenital disease, as opposed to a defect, VA cannot simply assume that, because of its congenital nature, the disease must have preexisted service. That is, the presumption of soundness still applies to congenital diseases that are not noted at entry. Quirin, 22 Vet. App. at 396-397. Because the presumption of soundness at entrance attaches, VA must show by clear and unmistakable evidence that the congenital disease preexisted service. Monroe v. Brown, 4 Vet. App. 513, 515 (1993). VA may not rely on a regulation as a substitute for the requirement that it rely on independent medical evidence. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). VA's Office of General Counsel has also confirmed that the existence of a congenital hereditary disease under 38 C.F.R. § 3.303(c) does not always rebut the presumption of soundness, and that service connection may be granted for congenital hereditary diseases which either first manifest themselves during service or which preexisted service and progressed at an abnormally high rate during service. See VAOPGCPREC 67-90; 55 Fed. Reg. 43, 253 (1990). In short, service connection is available for congenital diseases (but not defects) that are aggravated in service. Quirin, 22 Vet. App. at 394; Monroe v. Brown, 4 Vet. App. 513, 515 (1993). Here, post-service medical records starting in December 2015 show chronic back pain. In an August 2020 VA examination, the Veteran stated that the onset of his back pain began in 1991 while stationed in Germany and denied suffering any type of injury. The examiner diagnosed the Veteran with subjective back pain, which was likely age related and less likely related to military service. An addendum medical opinion was provided in September 2020 by the same examiner, which notes that an August 2019 x-ray showing mild degenerative disc disease was also likely age related and less likely related to military service. In November 2021, the Veteran underwent an additional VA examination. The VA examiner diagnosed degenerative disc disease and opined it was less likely than not caused by the Veteran's active duty service. However, while the examiner addressed scoliosis, he provided conflicting opinions. In section 5A and 5C the examiner concluded that the condition clearly and unmistakably existed prior to service and was not aggravated by service and cited to the April 1987 imaging noting mild S-shaped thoracic lateral bending to the right superiorly and to the left inferiorly. In the same report in section 7 the examiner opined that the scoliosis was not congenital and "there is no evidence that this veteran had scoliosis prior to enlistment." The examiner further suggests that adult scoliosis can be acquired due to degenerative changes to the spine. The examiner also does not explain the current imaging that does not note scoliosis. Further, the examiner referenced a 2015 x-ray that is not part of the electronic claims file. Given these deficiencies a remand is necessary for a new medical opinion. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The matters are REMANDED for the following action: 1. Associate any VA treatment records since November 2021 with the electronic claims file. Complete copies of any imaging either scanned into VISTA imaging or viewable only on CAPRI or QUASAR, including the 2015 VA x-ray, should be associated with either the claims file or the Virtual VA file. 2. Obtain a VA medical opinion from an orthopedic surgeon to determine the nature and etiology of the Veteran's back disability. A new VA examination is not necessary unless the VA examiner finds one is needed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner is asked to provide the following opinions: (a) Does the Veteran have scoliosis of the lumbar spine? Specifically, the examiner is asked to reconcile: 1. The April 1987 lumbar spine x-ray showing minimal scoliosis. 2. The 2015 VA x-ray showing scoliosis. 3. The August 2019 x-ray that did not note scoliosis. If the Veteran does have diagnosed scoliosis of the lumbar spine. Is the scoliosis congenital? (1) If the scoliosis is not congenital the examiner is asked to opine: Whether it is clear and unmistakable that his scoliosis preexisted any period of active duty service? (2) If the scoliosis did preexist service, then is there clear and unmistakable (obvious or manifest) evidence that such preexisting disability DID NOT increase in severity beyond the natural progression of the disability during the Veteran's periods of service (i.e., the disorder was NOT aggravated by service)? If the answer to any of the last two questions is "no," then is it at least as likely as not (50 percent or greater) that the Veteran's scoliosis is related to any injury or disease in active duty service? (b) If the examiner finds that the Veteran's scoliosis IS congenital, the examiner is asked to opine: Is the congenital scoliosis a disease or a defect? (Note: A disease is capable of improvement or deterioration, and a defect is static.) If the scoliosis is a congenital disease: (1) Did scoliosis clearly and unmistakably (i.e., obviously and manifestly) exist prior to service? (2) Did scoliosis clearly and unmistakably (i.e., obviously and manifestly) NOT permanently worsen beyond its normal progress during service? The examiner is reminded that the term "clear and unmistakable" is an onerous standard. In other words, clear and unmistakable evidence leads to a conclusion that is undebatable. If there is any debate as to whether the Veteran's back condition preexisted service and whether or not service aggravated his condition, clear and unmistakable evidence is not present. If scoliosis is a congenital defect: Is it at least as likely as not (a 50 percent or greater probability) that there was a superimposed disease or injury during military service that resulted in additional disability? (d) For each back diagnosis other than scoliosis (such as, degenerative changes of the lumbar spine), is it at least as likely as not (a 50 percent or greater probability) that the diagnosis was caused by or is etiologically related to service, to include any injury, disease, or event therein, or had its onset within one year of separation from service? (Continued on the next page) The examiner must discuss the Veteran's in-service reports of back pain. A clear rationale must be provided for any conclusion reached. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Teague, 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.