Citation Nr: 1011981 Decision Date: 03/31/10 Archive Date: 04/07/10 DOCKET NO. 08-02 080 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for a spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to March 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. On the VA Form 9, substantive appeal, received in December 2007, the Veteran indicated that she wanted a Travel Board hearing. In a August 2008 correspondence, she stated that she wanted to withdraw her hearing request. As such, the Veteran's hearing request is considered withdrawn and the Board will continue with appellate review. 38 C.F.R. § 20.704 (e) (2009). The Board also received additional evidence from the Veteran after the December 2007 statement of the case. The evidence included a statement written by the Veteran and additional medical evidence. In April 2010, the Veteran's representative submitted a waiver of the Veteran's right to initial consideration of the new evidence by the RO. See 38 C.F.R. §§ 19.9, 20.1304(c) (2009). Accordingly, the Board will consider the new evidence in the first instance in conjunction with the issue on appeal. The Board also notes that the December 2007 Statement of the Case also included issues of service connection for left ear surgery and bilateral hearing loss. These issues were not included in the VA Form 9. The Veteran specifically indicated that she was only appealing the issue pertaining to her spine disability ("'only' my back 'not' my hearing loss"); therefore, the left ear surgery and hearing loss issues will not be addressed in this decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In this case, the Veteran asserts that a spine disability, particularly, scoliosis, existed prior to service and was aggravated by service. Since service, the Veteran also experienced additional spine problems, including degenerative disc disease. The Board notes that an in-service physical examination in April 1977 referenced mild thoracic scoliosis. As there is evidence of a current spine disability and evidence of scoliosis in service, the Board finds that a VA examination is warranted to determine if the current disability is related to service or if a preexisting spine disability was aggravated by service. 38 U.S.C. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2009); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a VA examination with the appropriate medical specialist to determine the nature and etiology of any current spine disability. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should state what spine disability is present and whether there is a 50 percent probability or greater that it was causally or etiologically related to or aggravated by active service. The examiner should also indicate whether there is a 50 percent probability or greater that a spine disability preexisted service and if so, whether there is a 50 percent probability or greater it was aggravated by service (increased in severity during service). Any opinion expressed should be accompanied by supporting rationale. 2. The RO should then readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, the RO should issue a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and her representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ LANA K. JENG Acting 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) (2009).