Citation Nr: 22015111 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 18-42 334 DATE: March 16, 2022 REMANDED Entitlement to service connection for a thoracic back condition, to include scoliosis and Schmorl's nodes, is remanded. REASONS FOR REMAND The Veteran served on active duty with the U.S. Navy from February 2013 to February 2016. These matters are before the Board of Veterans' Appeals (Board) on his appeal from the July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file and reflects the Veteran's testimony that he had served as a Navy Field Medical Service Technician (FMST), which is consistent with his DD Form 2014 information. Notably, FMSTs "provide medical services," to include "medical assistance supporting the mission and functions of field units" and "health education." Accordingly, while the Board is mindful that during his July 2017 VA examination related to a disability other than the disability at bar the Veteran stated that, following his discharge from the Navy, the Veteran has been studying economics and pursuing employment as an analyst with the British Petroleum Company, the Board acknowledges the Veteran's working familiarity with and his three-year experience in the field of medicine supplies additional probative value to the Veteran's opinion as to the etiology of his back condition. In August 2021, the Board issued a decision addressing, inter alia, the Veteran's back condition. Remanding the Veteran's claim related to his back condition for further development by the RO, the Board observed that [t]he Veteran was afforded a VA examination in July 2017. At that time, he was noted to have scoliosis of the thoracic spine[,] as well as Schmorl's nodes at L3-L5. . . . [S]ervice connection can be granted for congenital diseases that either first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service. VAOPGCPREC 67-90 (July 18, 1990) published at 55 Fed. Reg. 43253(1990). [However, such conditions as, e.g., scoliosis might be congenital or acquired. Therefore,] VA may not assume that a congenital disease must have preexisted service simply because it is congenital. [Accordingly], the presumption of soundness still applies to congenital diseases that are not noted at entry. [Conversely, if a congenital disease is noted at entry, t]he presumption of soundness does not apply, however, since such a condition could be aggravate[d] during military service, [and] service-connection may be warranted for the resultant disability. VAOPGCPREC 82-90. Accordingly, the Board remanded the Veteran's claim for service connection for his back condition for further development by the RO, to include for an addendum VA examiner's opinion. The Board pointed out, inter alia, that the VA examiner was required to opine whether the Veteran's "back disability clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was in the natural progression of the disease." In October 2021, A.G.J., a physician assistant, issued an addendum opinion to the original July 2017 opinion rendered by Dr. A.M.A., an internist physician. Notably, Dr. A.M.A. omitted to opine as to whether the Veteran's back condition was as likely as not attributable to service. Rather, having diagnosed the Veteran with scoliosis and Schmorl's nodes, Dr. A.M.A. recorded the Veteran's report that the Veteran began experiencing pain in 2013, i.e., shortly after the Veteran began service. Specifically, Dr. A.M.A. recorded the Veteran's opinion that his "[d]egeneration [developed] over time [due to] hikes with lots of weight on the back, as well as [training] with lots of weight." The Veteran also pointed out that, "over time[, his] back has felt more pain and discomfort." The Veteran further reported that while he had not experienced any back pain during Dr. A.M.A.'s examination the Veteran had been systemically experiencing flare-ups in the form of "throbbing pain and occasional spazzing of muscles in the back." Notably, the Veteran, as a layperson, was competent to opine on the etiology of his back condition to the extent he reflected on the sequential order of his military duties and his back pain. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Moreover, given the Veteran's medical training and experience, the Board allocates a heightened probative value to his opinion, even though the Board is mindful that the Veteran is not a licensed physician and his opinion might be self serving. Jones v. West, 12 Vet. App. 460, 465 (1999). In July 2017, the RO denied the Veteran service connection for his back condition, stating: The evidence does not show a current diagnosed disability. While your service treatment records reflect complaints, treatment, or a diagnosis similar to that claimed, the medical evidence supports the conclusion that a persistent disability was not present in service. [The Veteran's post-service VA medical treatment] records show treatment for low back pain in May 2017 [i.e., one year and three months after the Veteran's discharge]. Pain is a symptom of an underlying condition and not subject to service connection itself. The Board takes this opportunity to point out that nothing in Dr. A.M.A.'s opinion could have operated as a basis for the RO's statement that "the medical evidence supports the conclusion that a persistent disability was not present in service." Moreover, the RO's statement that "[p]ain is a symptom of an underlying condition and not subject to service connection itself" has become legally incorrect after the RO issued its July 2017 decision. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018) (pain alone may constitute a disability where it amounts to a "functional impairment of earning capacity"). Further, while the Veteran's service treatment record (STRs) show that during his enlistment medical examination no record was made as to his scoliosis, the Veteran's x ray report produced in February 2013, literally one day after his entry into service showed that he had scoliosis: since the radiological report stated that "there [was a] moderate biphasic curvature of the thoracic spine." (This report was first docketed in May 2017 and then re docketed once again in February 2021, i.e., one week prior to the Veteran's Board hearing.) Moreover, jointly with having his aforesaid x-ray report re-docketed, the Veteran also filed an opinion rendered by Dr. G.C., a chiropractor. Dr. G.C. stated that he had been treating the Veteran since September 2019 "for complaints in thoracic spine." Dr. G.C. also noted the Veteran's report that his thoracic spine pain began pre-service. However, in no ambiguous terms, Dr. G.C. opined that, in his professional medical opinion, "this condition was aggravated by [the Veteran's] time in [the] military." In support of his opinion, Dr. G.C. pointed out that "the average male does not fully develop skeletally until their mid-twenties in age and up until this point a scoliosis can progress," and given that the Veteran "started and ended his military career at that time frame" Dr. G.C. had "no doubt" that "all the intensive training . . . affected [the Veteran's scoliosis [by], at the very least aggravating the spine[,] if not causing the curvatures to increase." Further elaborating on his aforesaid conclusion, Dr. G.C. stated: During his orthopedic evaluation, [the Veteran] had discomfort provoked at the apex of his curvatures during Max foraminal compression test, Soto hall, and Valsalva maneuver indicating there is an extra spinal pressure in this area. A review of [the Veteran's] lateral and AP views of the thoracic spine x-ray reveals there is also mild to moderate spondylosis developing at these curvatures likely due to the wear and tear of his military career. The Board, therefore, reads the October 2021 addendum opinion rendered by A.G.J. following the Board's remand against said background. A.G.J. stated: The Veteran has a diagnosis of Scoliosis [of thoracic] spine [and] Schmorl's Nodes [in the] L-3 [to] L[-]5 area. The medical record indicates the Veteran had a chest x[-]ray . . . with entrance to active duty [and t]his chest x[-]ray showed the scoliosis of the thoracic spine. It was therefore clearly pre-existing. The Veteran was not seen for back pain during time in service and[,] in fact[,] denied back pain during several visits. There is no evidence of progression beyond normal. Therefore, based on the body of current medical knowledge and the evidence of record it is my medical opinion that the Veteran's scoliosis is a congenital defect that clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated beyond its normal progression. However, the Board's review of the Veteran's STRs reveals that the Veteran denied back pain in service only on two occasions, i.e., once in May 2013 (albeit he reported muscular pain) and then in April 2015. Such reports are fully consistent with the Veteran's report of not experiencing back pain at all times and, instead, experiencing back-pain flare ups that are intermittent with periods of no pain. Accordingly, the opinion provided by A.G.J. not only failed to factor in the Veteran's report of flare-ups but also wholly ignored by Dr. G.C.'s opinion, plus completely omitted to address the issue of whether the Veteran's Schmorl's nodes were as likely as not attributable to service or clearly and unmistakably not aggravated in service. (The Board notes that Schmorl's nodes might be congenital and present jointly with scoliosis or they might be acquired separately, e.g., due to strenuous activity such as jumping, which is a substantial part of the Navy training. https://www.osmosis.org/answers/schmorls-node#:~:text=Schmorl's%20nodes%20 are%20a%20common,discovered%20incidentally%20on%20imaging%20studies.) Moreover, the above-quoted purely conclusory opinion rendered by A.G.J. as to the Veteran's scoliosis is particularly concerning since it is merely a recital of the Board's reference to the "clear[] and unmistakabl[e]" standard of review applicable to claims asserting an aggravation of a preexisting disability. However, a mere recital of the standard of review cannot qualify as a viable medical expert opinion; rather, it transforms the Board inquiry into an unduly leading remand instruction. See, e.g., Edwards v. McDonough, No. 20-5533, 2022 U.S. App. Vet. Claims LEXIS 74 (Jan. 25, 2022) (finding a medical expert's opinion facially insufficient where the opinion was nothing but a "repeated verbatim . . . language from VA's request"). Accordingly, while the Board regrets additional delay, the Board finds A.G.J.'s opinion facially insufficient, and a remand for an addendum medical expert's opinion is required. The matters are REMANDED for the following action: 1. Provide the Veteran with an addendum VA examination by a VA clinician other than A.G.J., a physician assistant, who rendered the October 2021 report. The VA clinician should be a physician with at least some experience in orthopedic conditions. 2. The VA clinician is requested to inquire with the Veteran and carefully record the Veteran's report as to physical activities that the Veteran performed during his active duty, as well as the type, severity, frequency, and progression of back pain that the Veteran has experienced in service and post service, including flare-ups. 3. The VA clinician is further requested to reconcile the Veteran's subjective reports with the VA clinician's objective findings and to provide detailed comments as to whether there are any medical reasons to accept or reject the Veteran's subjective reports. 4. In addition, the VA clinician is requested to address the Veteran's scoliosis and Schmorl's nodes separately, and if the Veteran is diagnosed with spondylosis to also address this disability separately from the Veteran's scoliosis and Schmorl's nodes. As to each of these disabilities, the VA clinician is requested to opine whether: (a) the disability was clearly and unmistakably preexisting at the time of the Veteran's entry into service; or (b) was as likely as not acquired during or attributable to service. The Board takes this opportunity to remind that the "as likely as not" standard does not require evidence to be in absolute balance, and an approximate balance is sufficient to support a positive finding. 5. The Board stresses that, while references to the Veteran's x-ray report generated on the date following the date of the Veteran's entry into service qualifies as sufficient basis for a finding that his scoliosis preexisted service, a mere reiteration of the phrase "clearly and unmistakably" would be facially insufficient as to the Veteran's Schmorl's nodes (and spondylosis, if the Veteran is diagnosed with such a disability), and a thorough clarification of factual and medical information is required in the event any of these disabilities are also found to be preexisting service. 6. In addition, as to each disability found to be preexisting at the time of the Veteran's entry into service, the VA clinician is requested to opine whether the disability clearly and unmistakably did not undergo an increase in severity during service or, if there was an increase, whether it was reflective solely of the natural progression of the severity of the disability. Such an analysis should, at a minimum, detail the basis for such findings and carefully address both the Veteran's opinion that his back condition worsened, in terms of severity, during his service and the opinion rendered by Dr. G.C., a chiropractor. With regard to Dr. G.C.'s opinion, careful comments as to all points made by Dr. G.C. should be provided. 7. If the VA clinician's opinion cannot be provided without resorting to speculation as to any aspect of the examination of the Veteran's back condition, the VA clinician is requested to provide an explanation as to why this is so and clarify what, if any, additional evidence would permit the requested opinion to be rendered. 8. Upon completion of the foregoing and any other developments deemed necessary, readjudicate the Veteran's claim for service connection for his back condition, to include scoliosis and Schmorl's nodes (and spondylosis, that is, if the Veteran is diagnosed with this disability by the VA clinician). Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anna Kapellan, 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.