BVA9505505 DOCKET NO. 93-11 181 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a thoracic spine disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for a bilateral hip disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The veteran's active military service extended from June 1967 to August 1968 and from July 1972 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. That rating decision, in part, denied service connection for bilateral arthritis of the hips, a chronic low back disorder, and scoliosis of the thoracic spine. This decision will be limited to the issue of entitlement to service connection for a thoracic spine disorder. The other issues will be the subject of a remand at the end of this decision and will not be otherwise dealt with herein. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO committed error in denying service connection for scoliosis of the thoracic spine. He argues that his scoliosis of the thoracic spine is not a constitutional or developmental abnormality. He asserts that the disorder was acquired during his active service. It is averred that law requires the veteran's spine to be presumed to have been in sound condition when he was examined and accepted for service. It is also contended that the recent findings represent an aggravation, if the condition is congenital or developmental. The representative points to opinions of the VA General Counsel which held that service connection could be granted for congenital or developmental abnormalities which are aggravated during service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports service connection for scoliosis of the thoracic spine. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. Scoliosis of the thoracic spine was not noted when the veteran was examined and accepted for service. 3. Scoliosis of the thoracic spine was first manifested during active service, after many years of service. 4. The scoliosis of the thoracic spine noted while the veteran was on active duty was a manifestation of the onset of the disability or advancement beyond its natural progress during service. 5. The scoliosis of the veteran's thoracic spine is the result of disease or injury during his active military service. CONCLUSION OF LAW Scoliosis of the thoracic spine was incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1111, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). He has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). When the veteran was examined for service, in January 1967, he reported a previous back strain. The examiner reported that the veteran's spine was normal. There were no back complaints, findings or diagnoses during the veteran's first period of service. On the August 1968 examination for separation from service, his spine was again reported to be normal. A report of the examination when the veteran re-entered service, in 1972 is not of record. The record contains reports of general examinations in 1977, 1979, and 1983 which show the spine was normal. The earliest back complaint of record was noted in October 1984, about 12 years after the veteran re-entered service. A thoracic strain and a minimal scoliotic curve were noted. Other back complaints were recorded n 1986, 1987 and 1988. X-rays in July 1990 confirmed a very mild scoliosis involving the upper thoracic spine with the concavity to the right side. The findings appeared chronic and no acute changes were seen. Back complaints were again noted when the veteran was examined in July 1991, for retirement from service. The veteran was seen at an orthopedic clinic in August 1991. X-rays were interpreted as showing degenerative joint disease of the thoracic spine and mild disc space narrowing. The assessment was degenerative joint disease of the thoracic spine. A VA examination was performed in November 1991. X-rays disclosed a mild scoliosis to the left with the apex at the T4-T5 level. The radiologist was of the opinion that the veteran had a mild scoliosis and that a slight concavity of the superior surface of 2 middorsal vertebral bodies might be developmental or at least old. The VA examination concluded with a diagnosis of mild scoliosis to the left, T4-T5 with no bone destruction. At his October 1992 RO hearing, the veteran gave sworn testimony of a back injury during service, and subsequent symptoms during and after service. In November 1992, the veteran was examined by a private orthopedist for VA. The examiner stated that the x-rays did not show any arthritis in the thoracic spine and did not address the scoliosis. Service connection may only be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131 (West 1991). Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c) (1994). The RO denied service connection for scoliosis of the thoracic spine asserting that it was a constitutional or developmental abnormality. However, VA adjudicators must base their determinations on the medical evidence and opinion. See Colvin v. Derwinski, 1 Vet.App. 171 (1990). Here there is only one medical opinion dealing with the question of whether the scoliosis is developmental. That is the November 1991 report of the VA radiologist. That report is completely equivocal, stating that it is either developmental or old. Law requires that where the evidence is balanced in this manner, the veteran be given the benefit of the doubt. 38 U.S.C.A. § 5107(b) (West 1991). Therefore, the scoliosis should be considered an old disorder rather than developmental. Even if the Board remanded the case for further medical opinion, and a medical expert expressed the opinion that the scoliosis was developmental, the fact that the condition became symptomatic after many years of service would have to be viewed as an aggravation of the disability or the acquisition of a superimposed injury. See O. G. C. Precedent Opinion 67-90; 55 Fed. Reg. 43253 (1990). In that precedent opinion, which is binding on this Board, the VA General Counsel held that hereditary diseases which first manifest themselves during service or which pre-exist service and progress at an abnormally high rate during service connection may be granted service connection. In this instance, considering the record and the veteran's sworn testimony, and giving him the benefit of the doubt, the evidence supports the conclusion that the scoliosis was not present when he entered service and that it was incurred as the result of injury in service. Consequently, service connection for scoliosis of the thoracic spine is warranted. 38 U.S.C.A. §§ 101(16), 1110, 1111, 1131, 5107 (West 1991). ORDER Service connection for scoliosis of the thoracic spine is granted. REMAND In November 1992, a private physician specializing in orthopedics examined the veteran and expressed an opinion as to his disability. The doctor did not report doing any x-ray studies himself. However, he reported reviewing 1991 and 1992 x-rays. The claims folder does not contain the report of any 1992 x-ray studies. The record should be complete. The 1992 x-rays and any other recent, pertinent records should be obtained. See Ferraro v. Derwinski, 1 Vet.App. 326 (1991). To perform an adequate examination, the medical examination must consider the records of prior medical examinations and treatment in order to assure a fully informed examination. See Caffrey v. Brown, 6 Vet.App. 377 (1994). In this case, the orthopedic examiner reported getting a history from the veteran. There was no indication that he reviewed the claims folder or the service medical records. That is particularly significant in this case, because it was 1990 and 1991 service department x-rays which reportedly revealed arthritis in the hips. Those interpretations should not be discounted without review of the films. The x-ray films made by the service department should be obtained and compared with current films. The veteran re-entered active service in 1972; however, the earliest medical record made after he re-entered service is the report of a periodic examination in November 1977. This raises the possibility that there may be additional service medical records which should be obtained and considered. See Jolley v. Derwinski, 1 Vet.App. 37 (1991) The veteran is seeking service connection for arthritis of the lumbar spine. The record does not contain any recent x-rays of that portion of the spine. These should be made and an orthopedist should express an opinion as to the significance of the findings. See 38 C.F.R. Part 4, Code 5003 (1994). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for back and hip disorders since service. After securing the necessary release, the RO should obtain these records. Any 1992 x-ray films should be associated with the claims folder. 2. The RO should make another attempt to secure the veteran's service medical records through official channels. The RO should specifically request all x-ray films made during service. 3. Following the above, the veteran should be accorded a VA examination by an orthopedist who has not previously examined him. The report of examination should include a detailed account of all manifestations of joint pathology found to be present in the lumbar spine and both hips. All necessary tests, including lumbar spine and bilateral hip x-rays, should be conducted and the examiner should review the results of any testing prior to completion of the report. Special attention should be given to the presence or absence of pain, any limitation of motion, instability and weakness. The examiner must express an opinion as to whether the x-ray films made during service show arthritic changes in the lumbar spine or hips. The examiner should also express an opinion as to whether the veteran now has any chronic disorder of the lumbar spine or hips, the nature of that disorder, and whether any findings during service can reasonably be interpreted as manifestations of any such current hip or lumbar spine disorder. A copy of this Remand and the claims folder must be made available to and be reviewed by the examiner prior to the examination. The orthopedist should provide complete rationale for all conclusions reached. 4. The RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination report. If the requested examination does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the report must be returned for corrective action. Following completion of these actions the RO should review the claims for service connection for lumbar spine and hips disorders. If the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, in accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. No action is required of the veteran until further notice is issued. JAN DONSBACH 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. The remand of the issues of entitlement to service connection for a low back and bilateral hip disorders is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal on those issues. 38 C.F.R. § 20.1100(b) (1993). NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.