Citation Nr: 1318948 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 06-06 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for congenital scoliosis of the thoracic spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Attorney, Keith D. Snyder ATTORNEY FOR THE BOARD D. Rogers, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1973 to October 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for congenital scoliosis of the thoracic spine in a January 2004 rating decision and entitlement to a TDIU in a November 2006 rating decision. In May 2009, the Board remanded the Veteran's claim for service connection for congenital scoliosis for further evidentiary development. The issue returned to the Board in October 2011, along with the appealed issue of entitlement to a TDIU and both issues were again remanded for further evidentiary development. Both issues were again returned to the Board in March 2013 when the Board sought and obtained an expert medical opinion from the Veterans Health Administration (VHA) regarding the issue of service connection for congential scoliosis. Both issues are now again before the Board for further appellate consideration. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran was diagnosed with congenital thoracic scoliosis during active military service, which is a congenital defect. 2. The competent and credible evidence demonstrates that there was superimposed injury or disease on the Veteran's congenital thoracic scoliosis during service. CONCLUSION OF LAW The criteria for service connection for congenital scoliosis of the thoracic spine have been met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131 (West 2002); 38 C.R.F. §§ 3.303, 3.304(c) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In light of the favorable decision herein granting the benefit sought as to entitlement to service connection for congenital scoliosis of the thoracic spine, the Board finds that any deficiencies in notice were not prejudicial to the Veteran. The Board acknowledges that neither the Veteran nor her attorney were provided with notice or time to respond to the March 2013 VHA expert medical opinion. However, given the favorable decision to grant the Veteran's claim for service connection for congenital scoliosis of the thoracic spine, the Board finds that it is not prejudicial to proceed to adjudication of the claim. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2011). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran and her attorney's numerous statements of record show that she essentially contends that her current thoracic spine disorder, diagnosed as congenital scoliosis during service, was incurred in or aggravated by superimposed injury during service due to her performance of administrative duties as a Yeoman (administrative/personnel) and/or surgical treatment for congenital scoliosis with fusion of her thoracic spine during service for which she eventually received a medical discharge and was denied subsequent reenlistment into military service on multiple occasions. She has indicated that she first experienced pain in her upper back and shoulder blades after two years of performing her occupational duties as a Yeoman, which included sitting in a straight back, non-adjustable chair while typing and standing over a counter while speaking with and processing service members for training for 40 or more hours each week. Upon seeking evaluation of her upper back and shoulder pain in 1975, she was diagnosed with rotoscoliosis which was stated to be of congenital origin during service. Factual Background and Analysis The Veteran's service treatment records indicate a normal spine examination at entrance into service in October 1973 and any significant medical history was denied in all areas. Two years later in October 1975, the Veteran complained of notable discomfort in the cervical and upper thoracic region since 1 year prior. She was diagnosed by an orthopedic specialist with congenital cervicothoracic rotoscoliosis. Films taken at the Naval Air Station Clinic gave an overall picture of rotoscoliosis, severe in degree. X-ray examination report from the Bone and Joint Clinic noted multiple congenital abnormalities of the cervical spine. Upon referral to the Naval Hospital in Pensacola, Florida in November 1975, x-rays of her spine were read as showing congenital cervicothoracic double primary curve. In April 1976, she underwent a C7-T9 thoracic fusion for treatment of congenital scoliosis. She was subsequently placed in a body cast for 6 to 9 months. On Medical Board Evaluation in June 1976, the Veteran was found to have congenital scoliosis of the thoracic spine which existed prior to service and was not service aggravated. She was placed on 6 months of limited duty and full recovery and return to duty was anticipated; however, the Veteran eventually requested a discharge because of the necessity of having to wear a body cast. In September 2003, the Veteran was afforded a VA spine examination. Spine x-rays at that time revealed marked scoliosis of the cervical and thoracic spine resulting in deformity, and mild scoliosis of the lumbar spine with degenerative changes between L4-S1 with minimal loss of the normal lordosis. The examiner diagnosed chronic back pain secondary to scoliosis with limited success with operative intervention during active service. The examiner did not provide an etiological opinion as to the Veteran's scoliosis. In accordance with the Board's May 2009 remand, the Veteran was afforded a VA spine examination in July 2009. The examiner diagnosed marked cervicothoracic scoliosis with status-post surgical fusion at C7-T9. Based on review of the claims file and relevant medical literature cited in the examination report, the examiner opined that the Veteran's congenital scoliosis preexisted military service and her symptoms from congenital scoliosis were permanently increased in severity "from her military duties." He further opined, however, that permanent aggravation of the Veteran's congenital scoliosis during service is "at least as likely as not" secondary to the natural progression of the disease. The examiner reasoned that congenital scoliosis is due to a congenitally anomalous vertebral development caused by birth defects of the spine itself. It appears more often in females, is seldom seen at birth unless x-rays are taken due to other concerns, and it generally appears later in life (i.e., a teenager who is going through a growth spurt). In this case, it was significant that the Veteran was asymptomatic until 2 years after enlistment when she experienced upper neck and back pain in October 1975, at which time she was 20 years old, prompting work-up and diagnosis of congenital scoliosis. Orthopedic and x-ray evaluation of the Veteran's cervical and thoracic spine at that time revealed anomalies and hemivertebrae (vertebral anomaly resulting from a lack of formation of one half of a vertebral body), which is the most common birth defect seen in congenital scoliosis. The Veteran's diagnosed congenital cervicothoracic scoliosis was treated during service with surgical fusion of her cervical spine. In this regard, he stated that about 75 percent of congenital curves worsen and require treatment. Treatment with bracing for congenital scoliosis seldom works since the bones themselves are deformed, thus, as in this case, treatment usually requires surgical fusion. In light of the foregoing, he opined that while the Veteran's congenital scoliosis preexisted her enlistment into military service, and while there appears to be a permanent increase in severity of associated symptomatology during service as she was asymptomatic until 2 years after enlistment, given that 75 percent of congenital curves worsen and require treatment, it is at least as likely as not any permanent aggravation during service is secondary to the natural progression of the disease. In accordance with the Board's October 2011 remand, a addendum opinion was obtained in March 2012 to determine the likely nature and etiology of the Veteran's thoracic scoliosis. Following a review of the claims file, the opinion provider opined that the claimed condition, which clearly and unmistakably existed prior service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. She reasoned that the Veteran's service treatment records document that her congenital thoracic scoliosis was appropriately recognized and diagnosed as such during service. She stated that the Veteran's reported spine symptoms during service were not severe and were not beyond "the norm" for scoliosis. Evaluation in 1976 showed that prior to spinal fusion surgery, the Veteran was advised that the natural progression of her congenital scoliosis would result in "potential hazardous" and "increasing symptomatology," thus, C-7 to T-9 spinal fusion was recommended to prevent permanent worsening of her thoracic scoliosis. The opinion provider found that treatment with surgical spinal fusion during service was appropriate because a review of the medical literature indicates that spinal fusion is the usual treatment for symptomatic thoracic scoliosis which is more likely to worsen over time than is scoliosis confined solely to the cervical spine or lumbar spine. In this regard, the opinion provider stated that the Veteran's service medical records document successful spinal fusion surgery before the natural progression of her thoracic scoliosis resulted in permanent worsening. Thus, the examiner agreed with the 1976 Medical Board determination that the Veteran's thoracic scoliosis was "not service aggravated." In accordance with the Board's March 2013 request, an expert medical opinion was obtained from a board certified orthopedic surgeon with a sub-specialty of spinal surgery for determination as to whether there was aggravation of the Veteran's congenital scoliosis during service. After careful review of the claims file, to include the Veteran's service records, the reviewer opined that there is clear and unmistakable evidence that the Veteran's scoliosis is of congenital origin. He further opined that it is clear and unmistakable that her symptoms "DID" progress during service as evidenced by the resulting treatment with a major surgical procedure. She was subsequently deemed unfit for service and unable to reenlist, which he observed is a dramatic difference from her situation at the time of her initial enlistment into military service. He reviewed the prior examination reports and opinions. As to the March 2012 examination report, it was noted that the examiner was specific in stating that the Veteran's scoliosis is purely a congenital problem with expected natural progression. In this regard, the March 2013 review stated that his opinion differs in that while it is almost certain that the Veteran would have had pain and degenerative problems later in life because of her congenital condition, the progression of her symptoms and subsequent surgery prompted the change in her condition during active service which resulted in a change of condition that precluded any subsequent military service. Analysis In this case, the Veteran's spine was noted to be normal at entrance into service. In general, a veteran is considered to have been in sound condition upon entry into service, except as to defects, infirmities, or disorders noted on the entrance examination, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease preexisted service and was not aggravated during service. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b). However, the Court has held that the presumption of soundness does not apply to congenital defects because such defects are not considered diseases or injuries within the meaning of 38 U.S.C.A. §§ 1110 and 1111. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); Winn v. Brown, 8 Vet. App. 510, 516 (1996). Current diagnoses regarding the Veteran's back disability include scoliosis with degenerative changes between L4-S1 and minimal loss of the normal lordosis status-post anterior cervical fusion as shown by x-ray in September 2003. In that regard, certain abnormal curvatures of the spine, including scoliosis, may be the result of a congenital or developmental defect, which are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2012). As such, a congenital or developmental defect generally may not be service-connected as a matter of law; however, service connection may be granted if such a defect is subject to, or aggravated by, a superimposed disease or injury during service which results in additional disability. See VAOPGCPREC 82-90 (July 18, 1990), published at 56 Fed. Reg. 45,711 (1990); see also Winn, 8 Vet. App. at 516; Natali v. Principi, 375 F.3d 1375, 1380 (Fed. Cir. 2004). In this case, there is competent and credible evidence that the Veteran had a preexisting congenital defect of the spine, namely cervicothoracic scoliosis. In this regard, the Board acknowledges the attorney's numerous statements of record asserting that there are multiple potential acquired etiologies of scoliosis that have considered or discussed by the VA examiners and opinion providers and neither the Veteran's service treatment records or VA examination reports/opinions provide any supporting rationale for the conclusion that the Veteran's scoliosis is of congenital verses acquired origin. At the outset, the Board notes that given the favorable decision reached herein, the attorney's argument as to whether the Veteran's scoliosis is of congenital verses acquired origin is now moot. Notwithstanding, however, as the Board must provide supporting reasons and bases for this decision, thus, the contention must be addressed. In this regard, the Board agrees that both the March 2012 VA and the March 2013 VHA opinion providers merely concluded without providing any supporting rationale that the Veteran's scoliosis is of congenital origin. To the contrary, the Board finds the July 2009 VA examination report and opinion as to whether the Veteran's scoliosis is of congenital origin to be of significant probative value. As reflected above, the examiner provided extensive supporting rational in support of the conclusion that the Veteran's cervicothoracic scoliosis diagnosed during service is indeed of congenital origin. In reaching that conclusion, the examiner thoroughly reviewed the claims file, noted specific facts from the Veteran's documented and reported medical history, explained the significance of those specific facts or lack thereof (i.e., absence of diagnosis at birth or at any time prior to the date of onset of symptoms during service, the Veteran's age at the time of onset, and why specific findings on orthopedic and x-ray evaluation at the time of onset are indicative of a congenital scoliosis), which was further supported with citations to relevant medical literature. The July 2009 examiner specifically concluded that the Veteran's cervicothoracic scoliosis diagnosed during service is of congenital origin because generally speaking, congenital scoliosis is due to a congenitally anomalous vertebral development caused by birth defects of the spine itself. Here, orthopedic and x-ray evaluation of the Veteran's cervical and thoracic spine at the time of diagnosis revealed anomalies and hemivertebrae [(vertebral anomaly resulting from a lack of formation of one half of a vertebral body)], which is the most common birth defect seen in congenital scoliosis. Besides their own lay assertions that the Veteran's scoliosis may be of acquired origin verses congenital origin, neither the Veteran not her representative have provided any competent medical evidence to that effect. Moreover, medical professionals both during service, and every VA medical examiner and opinion provider throughout the claim have concluded that the Veteran's scoliosis is congenital in origin. As such, the Board concludes that the Veteran has cervicothoracic scoliosis of the spine that is a congenital defect that preexisted her military service. As to whether the Veteran's congenital cervicothoracic scoliosis was subject to or aggravated by a superimposed disease or injury during service resulting in additional disability, the Board concludes that it was. In this regard, the Board finds the March 2013 VHA opinion, as well as the July 2009 VA examination report very probative. The examiners' opinions were based on an interview with the Veteran (in the case of the July 2009 VA examiner), review of the claims file, and results of current and/or prior physical examination and diagnostic testing. Significantly, as noted above, the July 2009 examiner noted that the Veteran's scoliosis was asymptomatic prior to and during the first 2 years of service at which time complaints of pain prompted work-up with diagnosis of congenital scoliosis which was significant enough to require treatment with surgical fusion of the spine. In this regard, the examiner's review of the medical literature showed that surgical fusion was not required in all cases, however, as in this case, cervical fusion is necessary treatment and usually required in 75 percent of cases due to worsening of the congenital curve. Thus, the July 2009 VA examiner concluded that there is evidence that the condition was aggravated "from her military duties." Moreover, the March 2013 examiner concluded the Veteran's scoliosis is of congenital origin and it is clear and unmistakable that her symptoms "DID" progress during service as treatment with a major surgical procedure was necessary. He further reasoned that the Veteran was subsequently deemed unfit for service and unable to reenlist, which is a dramatic difference from her situation at the time of her initial enlistment into military service. The examiner further explained that while it is almost certain that the Veteran would have had pain and degenerative problems later in life because of her congenital condition, the progression of her symptoms and subsequent surgery prompted the change in her condition during active service which resulted in a change of condition to the extent that precluded any subsequent military service. The Board recognizes that the examiners did not use the specific language of whether or not a "superimposed injury" occurred as indicated in the applicable regulation, it appears clear from the overall text of the opinion that the examiner and opinion provider believe that such an injury occurred. In summary, although there is evidence for and against the claim, the Board finds that there is an approximate balance of positive and negative evidence regarding whether the Veteran's thoracic scoliosis is a congenital defect and that her pain and other symptomatology necessitating surgical treatment represent a superimposed injury or disease on that congenital defect. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). The mandate to accord the benefit of the doubt is triggered when the evidence has reached such a stage of balance. In this matter, the Board is of the opinion that this point has been attained. Because, at the very least, a state of relative equipoise has been reached in this case, the benefit of the doubt rule will be applied. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). In light of the foregoing, service connection for congenital scoliosis of the thoracic spine is warranted. ORDER Entitlement to service connection for congenital scoliosis of the thoracic spine is granted. REMAND The Board's review of the claims file reveals that further development is necessary before the Veteran's claim for entitlement to a TDIU can be properly adjudicated. In a September 2004 claim for entitlement to a TDIU, the Veteran essentially contended that she is unable to obtain and maintain substantially gainful employment due to both service and non service-connected disabilities. As of the date of this remand, her only service-connected disabilities include congenital scoliosis of the thoracic spine (not yet rated), and hepatitis C, which is currently evaluated as noncompensable (0 percent). The Veteran's hepatitis C was last evaluated during VA examination in April 2011, however, the examiner did not discuss any effects that the Veteran's hepatitis C has on her ability to obtain and maintain substantially gainful employment. Additionally, the Veteran's now service-connected congenital scoliosis of her thoracic spine was most recently evaluated during VA examination in July 2009, nearly 4 years ago. Accordingly, a contemporaneous examination is warranted to determine the current severity of her thoracic spine scoliosis disability and any associated effects that her thoracic scoliosis disability has on her ability to obtain and maintain substantially gainful employment. The RO should take this opportunity to obtain any ongoing or additional relevant treatment records, VA or non VA, which have not been obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding and ongoing pertinent VA medical records, to include any ongoing treatment records dating since November 2009 from the Tuscaloosa VAMC. All records and/or responses received should be associated with the claims file. 2. Request that the Veteran provide and/or request her assistance in seeking any documents such as work evaluations and leave statements from her former employers that tend to support her assertion that her service-connected thoracic spine and hepatitis C disabilities interfered with her occupational performance. The appellant is invited to present any evidence, particularly medical evidence, which tends to show that she is unable to work solely due to her service-connected disabilities. 3. Thereafter, schedule the Veteran for a VA examination for the purpose of determining the current nature and severity of her service-connected hepatitis C and thoracic spine disabilities, and the impact of those disabilities on her ability to obtain and maintain substantially gainful employment. The examiner is to be provided access to the claims folders, a copy of this remand, and Virtual VA. The examiner must specify in the report that the claims files and Virtual VA records have been reviewed. After reviewing the record and examining the Veteran, the examiner should report all findings to allow for application of VA rating criteria for hepatitis C and thoracic spine disabilities. The examiner should also discuss any functional impairment caused by those disabilities. The examiner must state whether it is at least as likely as not (50 percent probability or better) that the Veteran's service-connected hepatitis C and thoracic spine disabilities, whether alone or in combination, render her unable to secure or follow a substantially gainful occupation for which her education and occupational experience would otherwise qualify her. The examiner should reconcile any opinion with all other clinical evidence of record and the Veteran's contentions. A complete rationale should be provided for any opinion(s) expressed. If any opinion cannot be provided without resort to speculation, the examiner should so state and provide a rationale for why the opinion would require resort to speculation. 4. The Veteran is to be notified that it is her responsibility to report for the examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. After the development requested has been completed, the RO/AMC should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures at once. 6. After the completion of any action deemed appropriate in addition to that requested above, the RO must readjudicate the claim of entitlement to a total disability evaluation based on individual unemployability due to service-connected disability, to include entitlement to an extraschedular evaluation. All applicable laws and regulations should be considered. If any benefit sought remains denied, the appellant and her attorney should be provided a supplemental statement of the case and given the opportunity to respond. The Board notes that the Veteran has already perfected an appeal to any denial of individual unemployability. 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. 2012). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs