Citation Nr: 1313367 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 08-09 673A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for service connection for back pain. 2. Whether new and material evidence has been received to reopen a claim for service connection for migraines. 3. Entitlement to service connection for scoliosis. 4. Entitlement to service connection for neck pain, including as secondary to back pain. 5. Entitlement to service connection for bilateral carpal tunnel syndrome, including as secondary to scoliosis. 6. Entitlement to service connection for allergies. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to August 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In a February 2007 rating decision, the RO denied petitions to reopen previously denied claims for allergies, back pain and migraines, and denied original claims of service connection for scoliosis and neck pain. In January 2010, the RO denied service connection for bilateral carpal tunnel syndrome. The Board presently restates the issue of service connection for bilateral carpal tunnel syndrome to as claimed as secondary to scoliosis based on the Veteran's contentions. The RO's November 2012 Supplemental Statement of the Case (SSOC) reopened the claims of service connection for back pain and migraines, before denying them again on the merits. However, the Board must determine whether to reopen these claims in the first instance because this affects the Board's jurisdiction to adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). An August 2008 hearing was held before an RO Decision Review Officer (DRO). The Veteran also testified at a May 2011 Travel Board hearing before a Veterans Law Judge (VLJ). Transcripts of the proceedings are on file. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ who chairs a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ noted the basis of the prior determination and noted the element of the claims that were lacking to substantiate the claims for benefits. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the hearing. Consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and the Board can adjudicate the claims based on the current record. A September 2011 Board decision reopened the claim for service connection for allergies, and remanded the remaining claims, including service connection for allergies on the merits. A claim previously on appeal for service connection for an anxiety disorder was withdrawn. See 38 C.F.R. § 20.204 (2012). By December 2013 correspondence, the Board informed the Veteran that the VLJ who had conducted the May 2011 hearing had retired and of the opportunity for another hearing, which the Veteran declined. Thus, the undersigned VLJ of is reviewing this case on the existing record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran has reported in-service clinical treatment at the Tripler Army Medical Center around June 1981, and Kaneohe Bay Marine Corps Base medical facility, both located in Hawaii. There has not yet been an attempt to secure any such records and associate them with service treatment records (STRs). This records inquiry must be accomplished on remand. See 38 C.F.R. § 3.159(c)(2) (2012) (VA will undertake reasonable efforts to obtain relevant records in the custody of a Federal department or agency). VA medical opinions addressing the cause of the claimed orthopedic and neurological disabilities, and whether related to service or a service-connected disability, are insufficient. Essential to the claim for service connection for scoliosis is whether that condition, as a known congenital disorder that pre-existed service, underwent aggravation therein. See 38 U.S.C.A. § 1153 (West 2002 & Supp. 2012); 38 C.F.R. § 3.306 (2012). When there is an alleged congenital disorder VA law makes a distinction between a congenital "defect" and "disease." A congenital disease is capable of improving or deteriorating, whereas a congenital defect is "more or less statutory in nature." See VAOPGCPREC 82-90. Service connection may be granted for congenital diseases, provided incurred in or aggravated by military service. The presumption of soundness applies to congenital diseases that are not noted at entry. Id. However, the presumption of soundness does not apply to congenital defects. See Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Under limited circumstances service connection is still permissible for a congenital defect where there has been aggravation of the pre-existing condition by superimposed disease or injury. See again, VAOPGCPREC 82-90; see also Martin v. Principi, 17 Vet. App. 342, 328-39 (2003). Medical opinions obtained pursuant to the Board's September 2011 remand directive do not squarely address the question of whether the Veteran has scoliosis, (classified as a congenital "defect" since static in nature) and if so, whether it underwent in-service aggravation due to superimposed injury or disease. A new examination and opinion is necessary. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran contends that her claimed disorders of the back and neck, as well as migraines and bilateral carpal tunnel syndrome, originated as secondary to scoliosis; however, service connection must first be established for scoliosis to permit service connection on a secondary basis for these issues. If further in-service documentation of treatment for allergies is obtained, the RO/AMC should forward this case for a supplemental opinion from the September 2012 VA examiner for allergies, regarding claimed in-service aggravation of pre-existing allergic rhinitis. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should attempt to obtain the Veteran's complete records of in-service hospitalization, to include all clinical records, for treatment of allergies, scoliosis and/or back pain from the Tripler Army Medical Center, and Kaneohe Bay Marine Corps Base medical facility (both located in Hawaii). 2. The RO/AMC should schedule the Veteran for another VA orthopedic examination. The claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed, and all findings should be set forth in detail. The VA examiner must first report whether the Veteran has scoliosis. If so, the examiner should then provide an opinion as to whether the Veteran's scoliosis (as a known congenital disorder presumed to have pre-existed service entrance) underwent measurable in-service aggravation due to a superimposed injury or disease (including any superimposed injury attributable to training exercises). Provided only that scoliosis was aggravated in service by superimposed injury, then opine as to whether the Veteran's claimed disabilities of the lower back, neck, migraines, and bilateral carpal tunnel syndrome either initially developed from, or were chronically aggravated by (i.e., beyond a state of natural disease progression) the Veteran's scoliosis. The examiner should include in the examination report a complete explanation based on his or her knowledge, training, the evidence and the state of medical science. If the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion. 3. Provided only that further in-service documentation of treatment for allergies is received, then forward this case for a supplemental opinion from the September 2012 VA examiner for allergies, regarding whether there was permanent in-service aggravation of pre-existing allergic rhinitis. 4. Then review the claims file. If the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). 5. Thereafter, readjudicate the claims on appeal based upon all additional evidence received. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with another Supplemental Statement of the Case, and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claims, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. (Continued on the next page) These claims 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. 2012). _________________________________________________ VITO A. CLEMENTI 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) (2012).