Citation Nr: 22018357 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 17-57 662 DATE: March 29, 2022 REMANDED Entitlement to service connection for a low back disability is remanded. REASONS FOR REMAND The Veteran had active service from September 2007 to September 2013. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this issue in March 2019 and June 2020. However, as there is still insufficient evidence in the record, on which to make a well-informed decision on the Veteran's claim, another remand is necessary. The Board regrets the additional delay. The Veteran contends his low back disability was caused by his active service. Specifically, he indicated, in his August 2017 notice of disagreement, that he injured his back while carrying "60 lb gear" during three deployments. He also indicated that he underwent therapy for his back during service. The Veteran is currently diagnosed with minimal levoscoliosis and degenerative arthritis of the spine. See, for e.g., January 2020 VA Examination Report. Although he noted that he underwent treatment in service for his low back disability, his service treatment records do not reflect such treatment. The January 2020 VA examiner gave contradictory and inconclusive medical opinions, indicating that the Veteran's disability may have started in 2009, while concluding that it is not related to the Veteran's service. The examiner also stated that the low back disability is a congenital defect, but noted that it could involve a combination of genetic and environmental factors. He further noted that the "degenerative changes could be due to malalignment of vertebrae due to scoliosis and could also be due to activities in service." The examiner then concluded that the degenerative changes started after service. There is also no adequate supporting rationale. As such, another medical opinion was requested. A subsequent October 2020 VA medical opinion is also inadequate. The examiner concluded that she could not render an opinion because it cannot be determined that the Veteran's levoscoliosis is a congenital disease or congenital defect. This is contrary to the January 2020 examiner's conclusion that the Veteran's disability is a congenital defect. There is also no consideration of the Veteran's reports that he hurt his back in service and that his symptoms continued since service. Once VA undertakes the effort to provide an examination when developing a claim, the examination must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). It is the factually accurate, fully articulated, and sound reasoning for the conclusion that contributes probative value to a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As both medical opinions of record are inadequate, to include the fact that neither opinion fully considers the Veteran's reports of the continuity of his symptoms since service, the Board finds that a remand is required. In addition, although the October 2020 VA examiner concluded that she could not render an opinion regarding the Veteran's low back disability, she did not directly specify whether this was due to the limits of medical knowledge. She mentioned the absence of medical records from the Veteran's childhood, but there is no indication that the Veteran was asked about these records, or whether obtaining such records would be the only way to render a conclusive medical opinion. Accordingly, the matter is REMANDED for the following action: 1. Ask the Veteran for permission to obtain any outstanding medical records that pertain to treatment for his low back disability, then associate any such records with his claims file. 2. Next, schedule the Veteran for a VA examination with an appropriate physician to determine the nature and etiology of any low back disability, to include levoscoliosis, degenerative disc disease, and mechanical low back pain. The examiner must review the entire claims file, to include a copy of this REMAND, in conjunction with the examination. The examiner is asked to address the following: a. Opine whether any back disability found is at least as likely as not (a 50 percent or greater probability) related to an in-service injury, event, or disease, to include carrying 60 pounds of gear and an M240 machine gun over the course of three deployments to Southwest Asia. b. Is the Veteran's levoscoliosis, or any other back disability identified, a congenital disease or a congenital defect? Defects are defined as "structural or inherent abnormalities or conditions that are more or less stationary in nature." A disease, on the other hand, is defined broadly as "any deviation from or interruption of the normal structure or function of any part, organ, or system of the body..." and "a condition considered capable of improving or deteriorating." "Any worseningany change at allmight demonstrate that the condition is a disease, in that VA considers defects to be 'more or less' static and immutable." In assessing whether a condition is a congenital defect or disease, the Board highlights that the consideration of evidence in this regard is not limited to the service treatment records. Post-service evidence can also illuminate whether a congenital condition is essentially "static in nature" and thereby a defect, or whether it is capable of change and thereby a disease. The January 2020 examiner concluded that the Veteran's scoliosis is a congenital defect, but he did not offer a supporting rationale for his conclusion. c. If it is determined that levoscoliosis, or any other back disability identified, is a congenital disease, then is it at least as likely as not (a 50 percent or greater probability) that it underwent an increase in severity, beyond the natural progression of the condition, during active service? d. If it is determined that levoscoliosis, or any other back disability identified, is a congenital defect, then provide an opinion as to whether any other disease or injury was superimposed upon the congenital defect due to the Veteran's service. e. If a nexus cannot be established for any abnormality, please provide an opinion as to whether the disability pattern is consistent with (1) an undiagnosed illness; (2) a diagnosable but medically unexplained chronic multi symptom illness of unknown pathophysiology or etiology; (3) a diagnosable but medically unexplained chronic multi symptom illness of partially understood pathophysiology or etiology; or (4) a disease with a conclusive pathophysiology and etiology. The examiner is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. (Continued on the next page) A complete rationale for all opinions expressed must be provided. Any opinion provided must be sufficiently supported by medical knowledge and rationale, and therefore, not conclusionary in nature. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.