Citation Nr: 22015138 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 19-22 210 DATE: March 16, 2022 REMANDED Entitlement to service connection for lumbar degenerative disc disease (DDD) at L4-L5 with degenerative joint disease is remanded. REASONS FOR REMAND The Veteran honorably served on active duty in the United States Army from January 1966 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement on February 2019 and the RO issued a statement of the case (SOC) in May 2019. The Veteran then filed a VA Form 9 in July 2019. The Board previously remanded the Veteran's claim in September 2019 for further development. In July 2020, the RO issued a supplemental statement of the case (SSOC). This matter is now properly before the Board. Lumbar degenerative disc disease (DDD) at L4-L5 with degenerative joint disease. The Veteran contends that he should be service connected for his DDD at L4-L5 with degenerative joint disease. The Veteran was afforded a new VA examination in January 2020. The January 2020 examiner opined that there was clear and unmistakable evidence of the Veteran's preexisting scoliosis. The examiner stated that there is evidence to indicate the Veteran continued to suffer from the disorder during service, which the examiner noted is typical of the condition. The examiner stated that the Veteran's condition did not progress beyond normal progression and that there is no evidence of permanent aggravation beyond normal progression. The examiner stated that there are limited to no medical records to support that the Veteran had continued treatment for low back pain after his discharge from service. The January 2020 examiner agreed with the prior examiner who opined that the Veteran's low back pain was due to post discharge injury, overuse and the normal aging process. The January 2020 examiner also stated that there were no additional medical records available of post service treatment. However, in March 2020, the VA received medical treatment records from Norris Creek Family Practice. The records were not part of the record at the time of the January 2020 examination and therefore should be reviewed by a medical professional to determine whether the additional information will impact the examiner's opinion. Upon review of the January 2020 VA examination the Board finds that the examiner did not opine as to whether the Veteran's condition was congenital. In the September 2019 Remand, the Board specifically asked for an opinion on whether the Veteran's condition was congenital, as it impacted whether the Veteran could be entitled to service connection. Although further delay is regrettable, the Board finds that remand is necessary to ensure compliance with the Board's prior remand instructions. The Board provided specific remand instructions in which the January 2020 VA examiner did not comply. The examiner failed to address whether the Veteran's pre-service diagnosis of scoliosis is congenital in nature and if it is diagnosed, whether Veteran's scoliosis is a defect. The examiner was also asked if there was an additional disability due to disease or injury superimposed upon the defect during active service, however the examiner failed to provide a response. Compliance with remand directives is not optional or discretionary, and the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, remand is necessary to consider whether the Veteran's scoliosis is a congenital disease and whether there was additional disability due to disease or injury super imposed upon the defect during active service. The matters are REMANDED for the following action: 1. Obtain any outstanding service treatment records and private treatment records and associate them with he Veteran's claims file. 2. Obtain an addendum medical opinion from an appropriate clinician. If the examiner determines a physical examination is necessary to provide the requested opinions such should be scheduled. Provide the examiner a copy of the entire claims file and a copy of this Remand. The examiner should take into consideration the Veteran's entire claims file. The examiner must address the following questions: (a) If scoliosis is diagnosed, the examiner is to state whether this constitutes a congenital defect or disease (which is considered a congenital abnormality that is subject to improvement or deterioration). If it is determined that the Veteran's scoliosis is a defect, was there an additional disability due to disease or injury superimposed upon the defect during active service? If it is determined that the Veteran's scoliosis was a disease, was it aggravated beyond its normal progression by his active service? (b) Considering the Veteran's medical records obtained from Norris Creek Family practice, and the Veteran's medical history, to include the in-service injury when the Veteran fell from the truck while on active duty, determine the nature and etiology of the Veteran's current disability. It should be noted that the Veteran is competent to attest to observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A complete rationale must be provided for all opinions. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should provide an explanation stating why this is so. 3. After completion of the above, if the outcome remains unfavorable to the Veteran regarding the issue on appeal, a supplemental statement of the case must be prepared and provided to the Veteran and his representative of record. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.