Citation Nr: 22014565 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 18-19 278 DATE: March 14, 2022 REMANDED Entitlement to service connection for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1961 to October 1963 and from June 1964 to August 1966. He died in November 2018; his surviving spouse has been properly substituted as the appellant in this case. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the appellant testified at a Board hearing before the undersigned Veterans Law Judge; a transcript is in the record. In March 2020 and July 2021, this appeal was remanded for additional development. In addition to the issue listed above, the prior Board remands included the issues of service connection for right knee, left knee, and neck disabilities. In a November 2021 rating decision, the RO granted service connection for those issues. Because that decision represents full grants of the benefits sought, those issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Entitlement to service connection for a back disability is remanded. As discussed in the Board's prior remand, there are medical question concerning the Veteran's back disability. There is no question that lumbar scoliosis was noted on the Veteran's August 1961 enlistment report of medical examination. The October 2021 VA opinion provider noted this likely represented a congenital disease given that it is capable of improving and worsening over time. The Board previously noted that the Veteran's June 1964 reenlistment report of medical examination did not note scoliosis. An x-ray of the Veteran's lungs taken a week later, however, noted extensive scoliotic curve to the thoracic spine with a convexity to the left side. Scoliosis of the thoracic spine was not noted on his service enlistment or reenlistment examinations. In a November 2021 addendum opinion, the VA provider stated it was likely scoliosis was missed on the June 1964 examination given that it had been deemed present in 1961 and was again noted via x-ray one week later. The Board finds this opinion inadequate as it apparently conflates lumbar scoliosis with thoracic scoliosis without explanation. Because lumbar scoliosis was noted on the Veteran's entrance examination, he cannot be presumed sound as to lumbar scoliosis, but because he had additional back diagnoses that were not noted, he would be presumed sound at entry with respect to those disabilities. Accordingly, an opinion is required that adequately addresses the additional back diagnoses during the appellate period and whether such are related to the Veteran's service. The July 2021 Board remand also noted that the private treatment records obtained named additional medical providers whose records had not been requested, and the Board encouraged the appellant to submit a medial authorization to allow VA to obtain such records. It does not appear that the appellant responded to that request. As this issue is being remanded again anyway, the appellant has another opportunity to assist in the development of this claim. The matter is REMANDED for the following action: 1. Obtain, if possible, records of relevant private evaluations and treatment the Veteran received prior to his death, to include records from Dr. U.M., Dr. S.A., Dr. Bean, and records from St. Elizabeth. The appellant must assist in the matter by submitting releases for VA to obtain any private records identified. 2. After the development above is completed, obtain an etiological opinion to determine the nature and likely cause of the Veteran's back disability. The opinion provider should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the opinion provider should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all spine disabilities reflected in the record at any time during the appeal period, to potentially include degenerative disc disease, lower lumbar facet arthropathy, lumbar disc displacement, lumbar spondylosis, and dextroscoliosis. (b) With respect to LUMBAR scoliosis that was noted at entry, the examiner should state whether there was an increase in the disability during service. If the evidence reflects such an increase, the examiner should specifically find whether any increase was due to the natural progression of the disorder or whether it represented a chronic worsening of the underlying pathology beyond the natural progression of the disorder. (c) With respect to THORACIC scoliosis that was noted in a June 1964 service treatment record, is such a congenital defect or congenital disease? (Congenital defects are static in nature and incapable of improvement or deterioration, whereas congenital diseases are capable of such progression. See O'Bryan v. McDonald, 771 F.3d 1376, 1381 (Fed. Cir. 2014)). (d) If the Veteran's THORACIC scoliosis is a congenital defect, is it at least as likely as not (50% or greater probability) that such disability was aggravated by a superimposed injury or disease during the Veteran's service that resulted in additional disability apart from the defect? (e) If the Veteran's THORACIC scoliosis is a congenital disease, is it at least as likely as not (50% or greater probability) that such disability was aggravated by the Veteran's active duty service? (f) For any non-preexisting back disorder (i.e., any back disability diagnosed other than scoliosis), is it at least as likely as not (a 50 percent or better probability) that such disability arose during (was first manifested in) or was otherwise causally related, at least in part, to the Veteran's active duty service? As appropriate, the Veteran's service treatment records and his statements that his back has hurt since service should be discussed, as well as the findings of lumbar scoliosis at service enlistment and thoracic scoliosis during service. His report of often running and hitting his head on objects on the ship due to his height should also be discussed. The opinion provider should also discuss the appellant's statements that she has known the Veteran since November 1968 and he had back pain since that time. 3. If upon completion of the above action the issue remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Matta, 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.