Citation Nr: 0814428 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 03-19 948 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for scoliosis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty in the United States Army from May 1963 to November 1963 and from March 1964 to November 1964. Procedural history This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma which denied service connection for scoliosis. In an August 2005 decision, the Board denied the veteran's claim of entitlement to service connection for scoliosis. The veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (the Court). In a Memorandum Decision dated July 16, 2007, the Court vacated the Board's decision and remanded the case. The Court's decision will be discussed at greater length below. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action on his part is required. REMAND In its August 2005 decision, the Board stated: "The November 2004 VA examiner has opined that the veteran's scoliosis is a congenital defect. Service connection for scoliosis would not be warranted on this basis alone. Moreover, the VA examiner has concluded that veteran's scoliosis was not productive of [a] disability." See the August 2005 Board decision, page 10. Thus, the Board found that the veteran's scoliosis was a congenital defect which could not be service connected. See 38 C.F.R. §§ 3.303(c), 4.9. [The Board found as well that there was no medical evidence of any disability attributable to the veteran's scoliosis.] The veteran's claim was denied based on the lack of a current disability. In its July 2007 Memorandum Decision, the Court noted that the November 2004 VA examiner stated that the veteran's scoliosis was a "congenital condition" as opposed to a "congenital defect" and "that it is not clear upon what basis the Board found that [the veteran's] scoliosis is a congenital defect." The July 2007 Memorandum opinion also noted that the distinction between a congenital defect and a congenital disease is important since "the former does not permit service connection, but the latter does." See the July 2007 Memorandum opinion at 2. Based on "the Board's failure to adequately address this issue" the Court set aside the August 26, 2005 Board decision and remanded the matter for further adjudication. As was pointed out by the Court, the medical evidence does not indicate whether the veteran's scoliosis is a congenital disease or defect. As was noted in the Court's July 2007 memorandum decision and the Board's October 2004 remand, the distinction between disease and defect is significant. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. However, a VA General Counsel opinion has held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the condition was incurred in or aggravated during service. See VAOPGCPREC 1-85 (1985) [reissued as VAOPGCPREC 82-90 (1990)]. Thus, additional medical evidence is needed to clarify this matter. Accordingly, the case is REMANDED to the Veterans benefits Administration (VBA) for the following action: 1. VBA should arrange for the veteran's claims folder to be reviewed by the November 2004 VA examiner, if available, or by another qualified physician. The examiner should be provided with separate copies of the Court's Memorandum Decision and of this remand, with instructions to review both. The reviewer should render an opinion, in light of the entire medical history as to: a) Whether the veteran's scoliosis is a congenital disease or congenital defect. b) If the veteran's scoliosis is the result of a congenital disease, is it more likely than not that the disease was aggravated during the veteran's military service, to include his claim that the condition was caused by the lifting injury during service. c) Whether the scoliosis is productive of any actual disability. 2. After undertaking any additional evidentiary and procedural development which it deems to be necessary, VBA should readjudicate the claim. If the claim remains denied, the veteran and his attorney should be provided with a Supplemental Statement of the case and accorded appropriate opportunity to respond. The claims folder should then be forwarded to the Board, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).