BVA9505651 DOCKET NO. 93-09 930 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James Douglas, Associate Counsel INTRODUCTION The veteran served on active duty from December 1990 to July 1991. She previously had over 14 years of service in the Reserves. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office in New Orleans, Louisiana (RO) which denied the benefit sought on appeal. REMAND A preliminary review of the record reveals that the veteran sought treatment for back pain on more than one occasion during her active service. Service medical records contain notations that the veteran had suffered a contusion in the middle of her back. X-rays taken at the time indicated the presence of scoliosis and degenerative disease in the lumbosacral region. After her discharge, the veteran continued to seek VA treatment for her back. In its review, the RO considered the veteran's service medical records and the initial VA examination. The RO concluded that any trauma had resolved itself, and that scoliosis and degenerative joint disease of the back had pre-existed the veteran's service and had not been aggravated by service. The record, however, provides no medical evidence to support that conclusion. In part, in view of the decision of the United States Court of Veterans Appeals (Court) in Crowe v. Brown, No. 93-550 (U.S. Vet. App. Dec. 20, 1994), the Board finds that additional development is required in order to provide a record upon which an informed determination of the issue on appeal can be made. In Crowe, the Court set forth various medical questions that must be addressed in adjudicating issues of preexistence of a disability and aggravation by service, in particular the presumption of soundness. A copy of this decision is attached. Further, inconsistencies exist between the first and second examination of the veteran's back by the VA. In September 1991, the examiner noted that the back problems stemmed from both the contusion and scoliosis, and that both conditions were resolving. In an October 1992 evaluation, however, the same examiner stated that the veteran suffered chronic lumbar spine sprain, and that urinary tract infection should be ruled out. As such, a current examination of the veteran would be helpful. Additionally, since it is likely that additional service medical records associated with the veteran's Reserve service might be available and it is probable that other subsequent outpatient treatment records exist, efforts to obtain such medical records should be accomplished. Therefore, in order to give the veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is desirable. Accordingly, this case is REMANDED for the following actions: 1. The RO should take appropriate steps to obtain copies of service medical records from the veteran's Reserve service and request a copy of any examination in preparation for her call to active duty in 1990. 2. The RO should obtain and associate with the claims file all outpatient treatment records pertaining to the veteran dated from July 1992 to the present from the VA Medical Center in New Orleans, Louisiana, and assist her in obtaining any pertinent records of treatment that she might have received from other sources since 1992. 3. The veteran should then be afforded an orthopedic examination to ascertain the nature and extent of all disorders of the back which may be present. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is specifically requested to review all pertinent medical records from before, during and after the veteran's active service, and provide an opinion regarding the following questions: (1) Did a history recorded in service, in the absence of medical records showing treatment for, or a diagnosis of, a back disability prior to service conclusively establish that the veteran had a back disability upon entering active service; (2) If so, was there a worsening of the veteran's back disability during service; and (3) if so, is there clear and unmistakable evidence that the increase in severity was due to the "natural progress" of the disease; (4) or did the back symptoms in service render the veteran more susceptible to such symptoms later and; (5) could a worsening of the condition reasonably have been expected to have been found at the time of the separation examination. If the first question is answered in the negative, the examiner is requested to provide an opinion regarding etiologic significance, if any, of any back complaints during service, and the degree of probability, if any, that any back disability currently found is related to the back complaints in service. The claims file must be made available to the examiner for review prior in connection with the examination. 4. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence, to include consideration of Crowe v. Brown. If the benefit sought is not granted, the veteran and her representative should be furnished a supplemental statement of the case, and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development and ensure that the veteran is afforded all due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence she desires to have considered in connection with the current appeal. No action is required of the veteran until she is notified. CHARLES E. HOGEBOOM Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1994).