Citation Nr: 0002759 Decision Date: 02/03/00 Archive Date: 02/10/00 DOCKET NO. 93-19 685 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for Scheuermann's disease. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD B.E. Jordan, Counsel INTRODUCTION The veteran had active military service from June 1974 to March 1975. This matter comes to the Board of Veterans' Appeals (Board) on a Joint Motion For Remand and for Stay of Proceedings (Joint Motion) from the United States Court of Appeals for Veterans Claims (Court) dated in March 1999. The Board incorporates the joint motion by reference. REMAND In August 1995, the Board remanded this matter to the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana for further development to include medical opinions regarding the etiology of Scheuermann's disease. Accordingly, the veteran was provided an examination in January 1996. An orthopedist and a neurologist rendered opinions. The neurologist opined that the Scheuermann's disease existed prior to service and became symptomatic with the rigors of basic training. The orthopedists indicated, in part, that he was unable to ascertain whether the veteran's current back disability was due to the Scheuermann's disease without a current x-ray and a magnetic resonance imaging (MRI) to determine the location of the spinal stenosis. The orthopedist noted that it was unlikely that the Scheuermann's disease underwent pathological advancement during the veteran's time in service beyond the natural progression of the disease. In January 1998, the Board denied the claim for service connection for Scheuermann's disease. As the basis of that determination, the Board relied on the January 1996 opinions. However, the Court determined that a remand is necessary in this matter because the January 1996 VA orthopedic examination is inadequate based on the following reasons: (1) the examiner did not review MRI results prior to rendering his opinion that the appellant's Scheuermann's disease underwent no pathological advancement during service as the MRI was not conducted until after the VA examination results were returned to the RO; (2) it was unclear whether the examiner reviewed the claims file as instructed in the August 1995 BVA remand, or whether the examiner reviewed x- ray reports taken in conjunction with the 1996 examination, before rendering his opinion; and (3) the physician's opinion regarding aggravation of Scheuermann's disease was based on recent x-ray films rather than on medical evidence from service or shortly thereafter. The VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The Court held that the duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining adequate VA examinations. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). This duty also includes providing additional VA examinations by a specialist when recommended. Hyder v. Derwinski, 1 Vet. App. 221 (1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991) Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who may possess additional records pertinent to his claim. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which are not currently of record. 2. The veteran should be afforded a VA examination by a board certified orthopedist, if available, to determine the nature and extent of any Scheuermann's disease found to be present. A copy of the veteran's claims file and a copy of this Remand must be made available to the examiner prior to the examination. The examiner must review the entire claims file, including the 1996 MRI and 1996 x-ray results, as well as any additional evidence submitted since the January 1998 Board decision. The examiner must indicate whether such evidence was reviewed. All indicated studies, including x-rays, should be performed. The examiner should provide an opinion as to whether Scheuermann's disease underwent pathological advancement beyond the normal progression of the disease during the veteran's service. A complete rationale should be given for all opinions and conclusions expressed. 3. The RO should review the examination report and determine if it is adequate for rating purposes and in compliance with this Remand, If not, it should be returned for corrective action. Stegal v. West, 11 Vet. App. 268 (1998). 4. In light of the additional evidence obtained pursuant to the requested development, the RO should reevaluate the claim for service connection for Scheuermann's disease. 5. If the benefit sought on appeal is not granted to the satisfaction of the veteran, a Supplemental Statement of the Case should be issued and the veteran and his representative provided with an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). F. JUDGE FLOWERS Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. 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) (1999).