Citation Nr: 22051180 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-40 029 DATE: September 8, 2022 REMANDED Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is remanded. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is remanded. REASONS FOR REMAND The appellant served on active duty in the United States Marine Corps from October 18, 1979, to November 9, 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This decision was appealed in a notice of disagreement (NOD) received by VA in December 2015. A Statement of the Case (SOC) was issued by VA in July 2017. VA received the appellant's Substantive Appeal (VA Form 9) in July 2017. The appellant appeared before the undersigned Veterans Law Judge at a hearing on these issues in November 2021. A transcript of that hearing has been added to the record on appeal. The Board previously remanded these claims for additional development in March 2022. A Supplemental Statement of the Case was issued in July 2022. While the Board regrets further delay in deciding this claim, after a review of the evidence of record received by VA since the Board's prior remand of these issues, further development is necessary prior to rendering a decision. 1. Entitlement to service connection a thoracolumbar disability is remanded. The appellant claims that preexisting scoliosis was aggravated beyond its natural progression by the physical demands of active duty, resulting in his current thoracolumbar spine disability, to include scoliosis and spondylosis. See e.g. April 18, 2019, letter from Ted Edwards, DO. The Board previously remanded these claims to obtain a medical opinion addressing whether the appellant's thoracolumbar spine scoliosis clearly and unmistakably was not aggravated by his period of active duty. The Board ordered that the examiner was to provide an answer as to why or why not. In response to this request, the June 2022 VA medical opinion provided that "there is no evidence of aggravation during service." This exact phrase was offered several times as rationale for the opinion. The U.S. Court of Appeals for Veterans Claims (Court), however, has made clear that VA may not rely on the absence of evidence of worsening during active duty. Rather, VA has the burden to affirmatively prove lack of aggravation by clear and unmistakable evidence. Horn v. Shinseki, 25 Vet. App. 231 (2012). The Board therefore finds this opinion to be inadequate and further finds that remand is necessary in this case. 2. Entitlement to service connection for a cervical spine disability is remanded. 3. Entitlement to service connection for carpal tunnel syndrome in the left upper extremity is remanded. 4. Entitlement to service connection for carpal tunnel syndrome in the right upper extremity is remanded. The appellant also contends that his preexisting scoliosis was aggravated beyond its natural progression during active duty and that such in-service aggravation is the cause of his current degenerative disc disease and spondylosis of the cervical spine. Additionally, he contends that this cervical spine disability is the cause of his bilateral carpal tunnel syndrome. As noted above, underlying claim for service connection for a thoracolumbar disability is being remanded again for further development. As a result, the Board finds that these claims should also be remanded. The Board finds that the question of whether these disabilities are secondary to a service-connected disability is inextricably intertwined with the question of whether entitlement to service connection for the underlying disability is warranted. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding that where a decision on one issue would have a significant impact upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). As such, the Board orders that these issues be remanded and re-adjudicated following the above ordered development related to the service connection claim for a thoracolumbar disability. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion to determine the etiology of the appellant's current thoracolumbar and cervical spine disabilities, as well as his bilateral upper extremity carpal tunnel syndrome. The need for an examination is left to the discretion of the clinician. After reviewing the record (and examining the appellant if necessary), the clinician should provide a response to the following: (a) Is it clear and unmistakable (undebatable) that the appellant's preexisting scoliosis was not aggravated during his period of active duty from October 18, 1979, to November 9, 1979? Why or why not? Of note, aggravation is a permanent worsening of a condition beyond its natural progress and does not include regular symptoms or even a flare-up of more severe symptoms. Aggravation requires a permanent worsening, beyond the natural progress, of the underlying condition. In providing the requested opinion, the clinician must consider the relevant evidence of record, to include: service treatment records (including in-service X-ray studies conducted on October 26, 1979, which noted "moderate scoliosis of the dorsal spine with convexity to the right;" an October 29, 1979 service treatment record detailing the appellant's description of back and neck pain and noting thoracolumbar scoliosis with a right 25 degree curve and compensatory thoracic curve; and a November 1, 1969, Medical Board report noting the Veteran's reports of a little back discomfort when engaged in neighborhood athletics prior to service which subsided with rest, and his reports of again developing back pain with in-service activities such as prolonged standing at attention and physical training); post-service private treatment records, including records dated in February 2009 showing complaints of low back and neck pain and X-ray findings of "mild scoliosis with curvature of the thoracolumbar junction to the right in the mid lumbar spine to the left;" October 19, 2021 treatment records noting the appellant's reported symptomatology history as well as X-ray studies showing mild degenerative joint disease and mild scoliosis of the lumbar spine; and an April 25, 2019 letter from Ted Edwards, DO. If the examiner if unable to conclude that the appellant's preexisting scoliosis was clearly and unmistakably not aggravated beyond its normal progression by active service, he or she must presume in-service aggravation. (b) Is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that any current thoracolumbar or cervical spine disability, to include spondylosis or degenerative joint disease, is causally related to any in-service aggravation of preexisting scoliosis, or to another in-service disease or injury? In providing the requested opinion, the clinician should consider the relevant evidence of record, to include the service treatment records, the post-service treatment records, and the appellant's descriptions of his in-service symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the appellant's reported symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the appellant's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the appellant's reports generally inconsistent with medical knowledge or implausible? 2. If the examiner finds that any current thoracolumbar disability is related to active service, the examiner should also answer the following: Are any current cervical spine disabilities or bilateral carpal tunnel syndrome at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) proximately due to or aggravated by the thoracolumbar disability? K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.