BVA9504288 DOCKET NO. 93-09 533 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for an auditory processing disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD J. Johnston, Associate Counsel INTRODUCTION The veteran retired in September 1991 after more than 26 years of active honorable service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1992 rating decision of the Denver, Colorado, Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for an auditory processing disorder. REMAND The veteran was apparently given a positive diagnosis for an "auditory processing disorder" after undergoing testing at the Fitzsimmons Army Medical Center, shortly before discharge from service. It was found that he was easily distracted, that there was an anxiety component, and that the veteran's memory was affected. The problem was occasionally manifested by an appearance of sleepiness and difficulty with written language skills. Considerable attempts at treatment at the Fitzsimmons Army Medical Center Speech-Language Pathology Clinic were followed with minimal effect. A VA examination in March 1992 indicated that the veteran had difficulty when the length of stimuli and/or linguistic complexity were increased and he was unable to retain and maintain concentration on his surroundings and was often distracted by external environmental stimuli. The examiner classified this as a learning disability. Testing revealed that the veteran functioned at the 91st percentile for normal subjects and while the examiner opined that this might be effectively dealt with by efforts at increasing the veteran's abilities at concentration, treatment was not recommended. 38 C.F.R. § 3.303(c) (1994) states that congenital or developmental defects, refractive error of the eye, personality disorders and mental deficiency as such are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 4.9 (1994) states that mere congenital or developmental defects, absent displaced or supernumerary parts, refractive error of the eye, personality disorders, and mental deficiency are not disease or injuries within the meaning of applicable legislation for disability compensation purposes. In July 1990, the Office of General Counsel to the VA issued a precedent opinion, O. G. C. Precendent 82-90, to more fully explain the above provisions. That opinion indicated that, initially, focus must be directed to the word "defect" in the phrase "congenital or developmental defects." Defect was defined as an imperfection, failure or absence. The opinion indicated that the terms "disease" and "defect" must be interpreted as being mutually exclusive. "Disease" had been broadly defined as any deviation from or interruption of the normal structure or function of any part, or system of the body that is manifested by a characteristic set of symptoms and signs and whose etiology, pathology and prognosis may be known or unknown. On the other hand, the term defect was defined as structural or inherent abnormalities or conditions which are more or less stationary in nature. In further attempting to distinguish between disease and defects, the General Counsel's opinion indicated that diseases were generally considered to be capable of improving or deteriorating whereas defects generally referred to a condition not considered capable of improving or deteriorating. The opinion concluded that in adjudicating claims for service connection for conditions of congenital or developmental origin, close attention must be paid to the question of whether the condition is a disease process or is simply a defect or abnormality. In many cases, it may be necessary for VA adjudicators to seek guidance from medical authorities regarding the proper classification of a medical condition at issue. Finally, the opinion concluded that service connection may be granted for congenital, developmental, and familial diseases but that congenital or developmental "defects" may not be service connected because they are not diseases or injuries under the law. Department of Veterans Affairs, Office of General Counsel, Precedent 92-90, July 18, 1990 (55 Fed. Reg. 48711, Oct. 1990). The clinical evidence presently of record does not sufficiently describe the veteran's auditory processing disorder as either a disease or defect. Another examination with an expert opinion regarding this issue must be provided prior to final appellate review. Accordingly, the case is REMANDED to the RO for the following: 1. The RO should contact the veteran and request him to submit any additional evidence he may have which is relevant to his claim for service connection for an auditory processing disorder and, he should be requested to provide copies of any private records of treatment for this disorder since he was separated from service. Additionally, the RO should ensure that copies of all VA treatment records not already presently on file are collected and added to the claims folder. 2. Upon completion of the above development, the veteran should be provided an examination by appropriate specialist(s) capable of evaluating an auditory processing disorder. The claims folder, a copy of this remand, and all evidence obtained pursuant to the remand must be made available to the examiner(s) for review prior to the actual examination. All indicated special testing should be performed. In addition to providing a current diagnosis and detailed explanation of all relevant findings regarding the veteran's auditory processing disorder, the examiner should, after reviewing all of the evidence of record and conducting the examination, render an opinion as to whether the disorder manifested by the veteran, is more closely associated with that of a "disease" or "defect" as those terms are described in this remand. The examiner should also express an opinion as to whether the veteran's auditory processing disorder is one capable of substantially improving or deteriorating or whether the disorder is generally considered to be one which is static in nature. If the examiner(s) indicates that the veteran's auditory processing disorder is a disease, he should then express an opinion as to the most likely time of onset of this disease. 3. After completion of the above development, the RO should again address the issue presented on appeal. If the decision remains adverse, the veteran and his representative should be provided with an appropriate supplemental statement of the case and a reasonable opportunity to respond. The case should then be returned to the Board for final appellate review. The veteran need do nothing until further notified. THOMAS J. DANNAHER 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).