BVA9500787 DOCKET NO. 93-05 169 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a back disorder, to include the issue of whether the April 1984 rating decision that denied service connection for scoliosis was clearly and unmistakably erroneous. . REPRESENTATION Appellant represented by: Alvin D. Wax, Esq. ATTORNEY FOR THE BOARD Constance C. Hickey, Associate Counsel INTRODUCTION The veteran had active service from August 1983 to February 1984. This appeal to the Board of Veterans' Appeals (Board) arises from the 1992 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) Huntington West Virginia, which denied the veteran's claim for service connection for a back disorder, to include wedging and claimed compression fractures of the thoracic vertebrae. REMAND The veteran was discharged from service six months after enlistment on the basis of physical disability which pre-existed entry onto active duty. A medical evaluation board determined that the veteran suffered from scoliosis of the spine due to old Scheuermann's disease. Service connection for lumbar scoliosis was denied by an April 1984 rating decision. The veteran was notified of that decision, which was not appealed. The veteran reopened his claim in October 1991. Submitted in connection with his claim were VA and private medical records which reflect that at the time of treatment, in 1992, the veteran reported a history of chronic back pain dating back to an injury in service in 1983. In a note made by a physical therapist, the veteran reported having sustained multiple compression fractures of the cervical and thoracic spine in service due to a rappelling injury. The veteran's attorney has contended that the April 1984 rating decision, and all subsequent rating decisions, were erroneous, because current medical evidence of record indicates that the veteran does not have scoliosis, and therefore could not have had scoliosis during service. It is further asserted that the veteran sustained back injuries during service which are reflected in current clinical evidence of old vertebral fractures. In this regard, the Board notes that recent medical treatment records show X-ray evidence of abnormality of the thoracic and cervical spine. A December 1992 rating decision denied the veteran's claim for service connection for a back disorder on the basis of all evidence of record, and determined that the April 1984 rating decision which denied service connection for scoliosis was not clearly and unmistakably erroneous. However the statement of the case does not address the issue of whether the April 1984 rating decision was clearly and unmistakably erroneous. This issue, which is inextricably intertwined with the issue developed for appellate review, must be fully developed for appellate review by the RO prior to the Board's deliberation on the veteran's appeal of his service connection claim. In addition, the record reflects that findings of the medical evaluation board are at variance with current medical records, which apparently do not indicate the presence of scoliosis. The Board believes that efforts should be made to obtain the actual X-ray studies of the veteran's back, made during service, and to otherwise develop the record, prior to appellate review. In this regard, a thorough orthopedic examination of the veteran's back would be helpful in resolving that issue. Under the circumstances of this case, the examiner should be given the opportunity to review a full and complete medical history. Accordingly, the case is REMANDED to the RO for the actions listed below. The RO is reminded that all contacts with the veteran are to be made through his attorney. 1. The RO should attempt to secure, through official channels, the actual X-ray studies of the veteran's spine made during military service in 1983. In the event that the films are unavailable, or otherwise cannot be located, that fact should be noted in writing and entered into the record. 2. All up-to-date VA treatment records should be made a part of the claims folder. 3. After the appropriate releases have been obtained, the RO should contact the veteran's private physicians, Harold D. Benteen, M.D., at 2048 Winchester Avenue, Ashland Kentucky 41101, Robert W. Lowe, M.D., in care of the Scott Orthopedic Center, 2828 First Avenue, Suite 400, P.O. Box 3127, Huntington, West Virginia 25702, Jose L. Rodriguez, M.D., in care of the Tristate Christian Neurological Clinic, 2301 Lexington Avenue, Ashland, Kentucky 41101, Chun Kim, M.D. in care of Tri-state Diagnostics, 2201 Lexington Avenue, Ashland, Kentucky 41101, George Smith, M.D. in care of Tri-state Diagnostics, 2201 Lexington Avenue, Ashland, Kentucky 41101, and the veteran's physical therapist, Susan Martin, P.T., in care of Our Lady of Bellefonte Hospital, and request that they provide copies of all previously unobtained records of their examination or treatment of the veteran. 4. The RO should contact the veteran's attorney and request the names and addresses of any other medical care providers, VA or private, who have evaluated or treated the veteran for symptoms of a back disorder since his separation from service, and the approximate dates of such evaluation or treatment. As well, the veteran should be asked to provide the name and address of any physician who treated him prior to military service. After the necessary releases have been obtained, the RO should request copies of any previously unobtained clinical records from those medical care providers identified by the veteran. 5. All records received should be associated with the veteran's claims folder. The RO should then arrange for examination by an orthopedic specialist who has not previously treated or examined the veteran to assess the current status of his back disability in accordance with VA's Physician's Guide for Disability Evaluation Examinations. All appropriate studies and tests should be performed. The veteran's claims folder, including any X-ray films obtained as a part of this remand, should be thoroughly reviewed by the examiner prior to the examination. The examiner's report should comment on evidence of scoliosis and compression fractures and, specifically, on the question of whether the findings recorded in service support the diagnosis of scoliosis due to old Scheuermann's disease and, if so, whether it was present prior to military service. The examiner should explain any disagreement he or she has with the findings or diagnoses of previous examiners as reflected by the record. The examiner should provide supporting rationale for his or her opinion. 6. Thereafter, the RO should again review the entire record. If action taken is adverse to the veteran, the RO should provide to the veteran and his attorney a supplemental statement of the case on the issue of whether the 1984 rating decision was clearly and unmistakably erroneous, as well as on the issue of service connection for a back disorder. The supplemental statement of the case should contain a recitation of all relevant evidence and a citation to the relevant law and regulations and a statement of the reasons for action taken. The appropriate period of time should be provided for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this action the Board intimates no opinion, legal or factual, as to any ultimate determination in this case. No action by the veteran is required until he receives further notice. N. R. ROBIN 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) (1993).