dissents and votes to reverse in a memorandum. Kane, J. P. (dissenting). The record demonstrates that claimant was under periodic medical treatment at a Veterans’ Administration hospital during the entire period he was working for the employer herein. In fact, he was receiving disability payments from the Veterans’ Administration for a disability resulting from the prior surgery to his back.
The Board found that claimant "had minor problems with his back between 1970 and 1981 and has never been free totally of complaints”. That finding distinguishes this case from Matter of Kuczkowski v Bethlehem Steel Corp. (90 AD2d 612, affd 58 NY2d 946), upon which the majority relies, wherein the Board found the preexisting condition which formed the basis for the claimant’s disability, namely, a preexisting hernia and hydrocele, to be medically "insignificant when discovered” (supra, at 613).
Thereupon, in my view, the decision of the Board in this case is an additional extension of the principle established in Kuczkowski. The Board’s decision apparently stands for the proposition that any aggravation of a preexisting condition— and in particular low back pathology, whether dormant or symptomatic—which eventually results in a disability can be established as an occupational disease. If so, it is a giant step from established precedent (see, Matter of Lopez v Hercules Corrugated Box Corp., 50 AD2d 1048).
While the distinction between aggravation of a preexisting condition and an occupational disease has, over the years, become rather blurred, the adoption in this case of the "but for” theory in finding an occupational disease effectively eliminates any such distinction (see, IB Larson, Workmen’s Compensation § 41.63). If such a policy is the ultimate objective, it is a subject which should be addressed by the Legislature.
Accordingly, I would reverse the Board’s decision and remit for further consideration.