BVA9506529 DOCKET NO. 92-20 744 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for scoliosis of the thoracic spine. REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Bernard T. DoMinh, Associate Counsel INTRODUCTION The veteran served on active duty in the U.S. Navy from November 1985 to October 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 1992 decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for service connection for scoliosis of the thoracic spine. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his scoliosis should be service- connected because it was either caused or aggravated by active service as a result of his duties, which regularly involved lifting and carrying heavy objects. 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 preponderance of the evidence is against the veteran's claim for service connection for scoliosis of the thoracic spine. FINDING OF FACT The veteran's thoracic spine scoliosis is a developmental defect; during service the veteran did not have, nor does he have, a chronic acquired thoracic spine condition superimposed on the developmental scoliosis. CONCLUSION OF LAW The veteran's thoracic scoliosis, being a developmental defect, is not a disease or injury for VA compensation purposes and may not be service connected; an acquired thoracic spine disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty in the U.S. Navy from November 1985 to October 1991. The service medical records show that during an August 1985 enlistment examination, the veteran's spine was reported as normal. The veteran reported no history of back problems. In February 1986 the veteran complained of upper back and neck pain for 1 1/2 months which started with no apparent trauma to the area. He reported having relief from symptoms when he lay down, and that he had injured his upper back 1 1/2 years earlier while performing heavy lifting. Examination of his spine showed no pain on palpation to his spine or muscles. He had full range of motion with slight pain, and he had normal gait and station. The assessment was tension headaches. In early March 1986 the veteran complained of back pain lasting for one month. Examination revealed a curvature defect of his spine, which was also noted on X-ray. The assessment was musculoskeletal spasm and thoracic scoliosis. Approximately two weeks afterward, in late March 1986, the veteran was seen for follow-up of his back pain complaints. He reported having no childhood history of back pain. He also reported that two years earlier, while carrying two heavy buckets, he accidentally fell and strained his back. Examination again noted mild scoliosis of his upper thoracic spine with no pain on motion. The assessment was scoliosis. Thereafter, from March 1986 to June 1986, the veteran received periodic treatment for recurrent upper back pain associated with thoracic scoliosis, shown by physical examination and X-rays. He was seen by physical therapy and counseled on an exercise program to strengthen the muscles in the affected area. After June 1986, the veteran's service medical records show no further complaints of back pain. Treatment records dated in June 1988, September 1988, November 1988 and May 1990 show that the veteran was treated for injuries sustained while playing sports (basketball, football and softball). None of these sports injuries involved his back, nor do the records show any complaint of back symptoms. The veteran's Physical Readiness Test reports for August 1988 and January 1989 showed no impairment of his overall ability to perform sit- reaches, sit-ups, push-ups, and a 1.5 mile run/walk. The reports show that he received an "outstanding" classification during testing in August 1988, and a "good" classification in January 1989. A November 1989 enlistment extension examination showed the veteran's spine was normal. During his August 1991 separation examination, the veteran was noted to have mild thoracic scoliosis. He denied recurrent back pain in his medical history questionnaire. The veteran was separated from active duty in October 1991. In January 1992 he claimed service connection for scoliosis, and he reported no related treatment since service. During a February 1992 VA examination the veteran reported to the examiner that, on admission into service, he was noted to have mild thoracic scoliosis. He said he was offered the option of accepting a discharge because of the condition but declined, and for his first couple of years of service was assigned light duty while in school. The veteran related that when he later began standing watches his back began to intermittently bother him, and a physical therapy clinic recommended exercises. Physical examination of the veteran's spine showed a 5 degree or less scoliosis convex to the right in his upper thoracic spine. It was noted that his scoliosis did not lead to any gross asymmetry and the veteran had full range of motion of the cervical and lumbar spine. X-rays of the spine showed no abnormality except for mild scoliosis. The examiner diagnosed mild scoliosis. In a November 1994 memorandum, the chief medical officer of the orthopedic section of the VA medical center in Boston, Massachusetts, responded to a Board request for a medical opinion. The doctor reported that he had reviewed the evidence in the veteran's claims folder and found it adequate for forming a medical opinion regarding the etiology of the thoracic scoliosis. The doctor opined, after reviewing the evidence, that the veteran's thoracic scoliosis (described as approximately 5 degrees in the upper thoracic spine) had existed prior to his entry into service and that there were no residual defects in the thoracic spine other than the scoliosis itself upon his separation from service. The doctor said he felt the scoliosis was a developmental defect, probably of unknown origin, which the veteran had for many years and which he brought into the service. The doctor commented that the condition may have been somewhat aggravated during shipboard service, but it was not causing him any discomfort at the time of his discharge. The doctor stated he believed it appropriate to deny service connection for the scoliosis. In December 1994 the Board provided the veteran's representative with a copy of the above medical opinion. The representative was told he had 60 days to submit additional evidence or argument in response to the opinion. In January 1995 the representative submitted additional argument but no evidence. In his argument, the representative criticized the medical opinion, that the veteran's thoracic scoliosis was a developmental defect, as being based only on the doctor's "feeling," with no discussion of supporting medical principles. The representative also argued that it was inappropriate for the doctor to state that service connection should be denied. II. Analysis The veteran's claim, for service connection for thoracic scoliosis, is well-grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is not inherently implausible. Relevant evidence has been properly developed, and no further assistance to the veteran is required to comply with the duty to assist. Id. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a),(b). Congenital or developmental defects are not diseases or injuries for VA compensation purposes and may not be service connected. 38 C.F.R. § 3.303(c); O.G.C. Precedent Opinion 82-90, 55 Fed. Reg. 45711 (1990). A back disorder, including thoracic scoliosis, was not noted on the veteran's 1985 enlistment examination. For several months in 1986 he received outpatient treatment for symptomatic thoracic scoliosis, and during that time he revealed a history of some preservice back problems. After the 1986 treatment episodes, the veteran had no medically documented back problems, and the back was noted to be clinically normal at a 1989 examination. The 1991 separation examination noted mild thoracic scoliosis, although the veteran then gave no history of problems. Similarly, the 1992 post-service VA examination showed mild thoracic scoliosis but no other pertinent abnormality. Legal authority permits service connection for disabilities resulting from diseases or injuries but not from congenital or developmental defects. The crucial question in the veteran's case is whether his thoracic scoliosis is or is not a congenital or developmental defect. To resolve this matter the Board obtained a medical opinion from a VA orthopedic specialist, and this doctor, after reviewing the record and utilizing his medical expertise, reached the conclusion that the veteran's thoracic scoliosis represented a developmental defect. The veteran's representative criticizes the medical opinion for failing to discuss medical principles, yet the Board finds the opinion adequate as to the simple medical question posed. The doctor's statement, that a denial of service connection appeared appropriate, is mere surplusage on an adjudicative matter and is not being relied on by the Board. The record contains no countervailing medical evidence to refute the VA doctor's opinion that the veteran's thoracic scoliosis is a developmental defect, and the Board notes that the veteran, through his representative, has been given the opportunity to submit such evidence. The weight of the evidence indicates that the veteran's thoracic scoliosis is a developmental defect for which service connection is prohibited. Although congenital or developmental defects may not be service connected, any disability from a superimposed chronic acquired disease or injury during service may be considered for service connection. O.G.C. Precedent Opinion 82- 90, 55 Fed. Reg. 45711 (1990). However, the veteran's service and post-service medical records only show the developmental defect of thoracic scoliosis. During service the veteran did not have, nor does he currently have, a superimposed chronic acquired thoracic spine condition; such a condition was neither incurred in nor aggravated by service. The Board finds that the preponderance of the evidence is against service connection for thoracic scoliosis. Thus, the benefit-of- the-doubt doctrine does not apply, and service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Service connection for thoracic scoliosis is denied. L. W. TOBIN 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. 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.