Citation Nr: 0005593 Decision Date: 03/01/00 Archive Date: 03/14/00 DOCKET NO. 98-07 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a bowel disorder secondary to lumbosacral strain, status post L5-S1 laminectomy. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The veteran had active service from October 1987 to October 1993. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from an October 1997 rating decision of the Jackson, Mississippi Regional Office (hereinafter "the RO") which denied service connection for a bowel disorder secondary to lumbosacral strain, status post L5-S1 laminectomy. The veteran has been represented throughout this appeal by the Paralyzed Veterans of America, Inc. The Board notes that in the January 2000 informal hearing presentation, the accredited representative advanced contentions on appeal which the Board has construed as a claim for entitlement to an increased evaluation for the veteran's service-connected lumbosacral strain, status post L5-S1 laminectomy. As this issue has neither been developed nor certified for review on appeal, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. Service connection is presently in effect for lumbosacral strain, status post L5-S1 laminectomy; a mood disorder due to poor results from two laminectomies with major depressive like episodes; plantar faciitis of both feet; and for a neurogenic bladder. 2. There is competent evidence of a current bowel disorder and of a nexus linking the bowel disorder to the veteran's service-connected lumbosacral strain, status post L5-S1 laminectomy. CONCLUSION OF LAW The claim of entitlement to service connection for a bowel disorder secondary to lumbosacral strain, status post L5-S1 laminectomy is well grounded. 38 U.S.C.A. § 5107(a) (West 1991 and Supp. 1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDINGS AND CONCLUSION In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). A well- grounded claim for service connection on a secondary basis requires competent evidence, generally medical, of a current disability, and of a nexus between the current disability and a service-connected disability. Reiber v. Brown, 7 Vet.App. 513 (1995). Service connection is in effect for lumbosacral strain, status post L5-S1 laminectomy; a mood disorder due to poor results from two laminectomies with major depressive like episodes; plantar faciitis of both feet; and for a neurogenic bladder. The veteran's service medical records do not refer to complaints of or treatment for a bowel disorder. A treatment entry dated in 1992 indicated that the veteran complained of low back pain which began two weeks earlier. The assessment was lower back muscle strain. At the time of the July 1993 separation examination, the veteran checked that he had recurrent back pain. The July 1993 separation examination report included notations that the veteran's anus and rectum and spine and other musculoskeletal systems were normal. A September 1993 treatment entry noted that the veteran complained of low back pain for one month. The assessment, at that time, was low back pain. Private treatment records dated from December 1991 to September 1993, during the veteran's period of service, as well as records dated from October 1993 to December 1993, indicated that he was treated for disorders including a back disorder. VA treatment records dated from October 1993 to January 1994 referred to continued treatment. The veteran underwent a VA general medical examination in January 1994. The diagnoses included fibromyalgia syndrome and discogenic disease of the lumbar spine, by history. VA treatment records dated from February 1994 to December 1994 indicated that the veteran was treated for several disorders. A February 1994 initial history and physical examination report noted that the veteran had a history of a tethered cord syndrome. It was reported that for about three years the veteran had noted numbness in the left greater than the right leg, impotence, and bowel and bladder incontinence. The impression included back pain, foot drop, urological and bowel problems after a tethered cord syndrome release. An August 1994 entry noted that the veteran had a history of lower extremity numbness and urinary and bowel incontinence. The assessment was typical history of tethered spinal cord. The veteran underwent a VA spine examination in January 1995. He reported that he had increased pain in the lower back and sacral region when having a bowel movement. The diagnosis was chronic lumbar syndrome, status post L5-S1 laminectomy. VA treatment records dated from April 1995 to March 1996 indicated that the veteran continued to receive treatment. An April 1995 entry noted an impression of back pain, foot drop, urological and bowel problems after tethered cord syndrome release. A December 1995 VA hospital discharge summary indicated that the veteran underwent a L4, L5 laminectomy with intradural decompression. The diagnoses included tethered cord, status post L4, L5 laminectomy and neurogenic bladder. A May 1996 VA genitourinary examination report noted that the veteran stated that in 1994, he had the onset of disorders including incontinence, urgency, frequency, erectile dysfunction, and fecal incontinence. The diagnoses did not refer to a bowel disorder. VA treatment records dated from June 1996 to May 1996 referred to continued treatment. A September 1997 VA gastrointestinal examination report noted that the veteran reported that he started having bowel problems after he had a second back operation in 1995. He stated that he began having constipation which at times would worsen. The veteran also reported that at times had difficulty controlling his defecation, but had not, so far, had any incontinence. He noted that he would at times have extreme urgency to move his bowel. The examiner reported that the rectal examination was unremarkable with normal tone of the anal sphincter noted through mass. A diagnosis was not provided. VA treatment records dated from August 1997 to November 1998 indicated that the veteran was treated for disorders including a bowel disorder. An August 1997 entry noted that the veteran complained of constipation even on Metamucil and Dulcolax, as well as some buttock numbness. The assessment was neurogenic bowel without tethered cord. A November 1998 entry indicated an assessment of [illegible] tethered cord, status post laminectomy, chronic pain and difficulty with bowel movement. At the February 1999 hearing before a member of the Board, the veteran testified that he first started having problems with his bowels about six months before his first surgery in August 1994. He stated that immediately after his surgery, he had complications with his bowel and bladder. The veteran reported that he had bowel urgency and severe constipation followed by diarrhea. He reported that a VA physician indicated that his bowel problem could be related to his back disorder. An April 1999 VA treatment entry noted that the veteran had chronic recurrent back pain and a bladder/bowel problem. The assessment included [illegible] tethered cord, status post laminectomy, chronic back pain, and bowel dysfunction. The examiner reported that the bowel dysfunction appeared to be secondary [illegible] to the tethered cord and surgery. The Board has made a careful longitudinal review of the record. It is observed that a February 1994 VA initial history and physical examination report indicated that for about three years the veteran had noted bowel and bladder incontinence. The impression included back pain, foot drop, urological and bowel problems after a tethered cord syndrome release. An April 1995 VA treatment entry noted the same diagnoses. Additionally, the Board notes that an August 1997 VA treatment entry indicated an assessment of neurogenic bowel without tethered cord and an April 1999 entry related an assessment which included bowel dysfunction. Therefore, as disorders including a neurogenic bowel and bowel dysfunction have been diagnosed, the Board finds that there is medical evidence of a current disability. As to a nexus to a service-connected disability, the Board observes that the examiner, pursuant to the April 1999 treatment entry, noted that the veteran's bowel dysfunction appeared to be secondary [illegible] to the tethered cord and surgery. The Board notes that the examiner's conclusion was apparently based on a history provided by the veteran. The Board observes that the Court has held that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by the examiner, does not constitute "competent medical evidence" satisfying the Grotveit v. Brown, 5 Vet.App. 91 (1993) requirement. The Board also notes that although an examiner can render a current diagnosis based on his examination of the veteran, without a thorough review of the record, his opinion regarding etiology can be no better than the facts alleged by the veteran. See Swann v. Brown, 5 Vet.App. 229, 233 (1993). The Board observes that there is no indication that the examiner reviewed the record prior to providing his conclusion. However, a requisite nexus has been provided. In such cases doubt must be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b) (West 1991 & Supp. 1999). Accordingly, it is concluded that the veteran has presented a well- grounded claim of entitlement to service connection for a bowel disorder secondary to lumbosacral strain, status post L5-S1 laminectomy. ORDER The claim of entitlement to service connection for a bowel disorder secondary to lumbosacral strain, status post L5-S1 laminectomy is well-grounded. To this extent only, the appeal is granted. REMAND The veteran asserts on appeal that he is entitled to service connection for a bowel disorder secondary to lumbosacral strain, status post L5-S1 laminectomy. The accredited represented has requested that this case be remanded in order to afford the veteran a VA examination. In reviewing the record, the Board notes that the veteran was last afforded a VA gastrointestinal examination report in September 1997. As noted pursuant to the discussion above, at that time, the veteran reported that he started having bowel problems after a second back operation in 1995. He stated that he began having constipation and that at times had difficulty controlling his defecation, but had not, so far, had any incontinence. The veteran also reported that he would at times have extreme urgency to move his bowel. The examiner indicated that the rectal examination was unremarkable with normal tone of the anal sphincter noted through mass. Although the examiner reported that he had reviewed the veteran's claims folder, a diagnosis was not provided. Additionally, the Board observes that an August 1997 VA treatment entry noted that the veteran complained of constipation as well as some buttock numbness. The assessment was neurogenic bowel without tethered cord. A November 1998 entry indicated an assessment of [illegible] tethered cord, status post laminectomy, chronic pain and difficulty with bowel movement. Further, an April 1999 treatment entry noted an assessment which included [illegible] tethered cord, status post laminectomy, chronic back pain, and bowel dysfunction. The examiner reported that the bowel dysfunction appeared to be secondary to the tethered cord and surgery. The Board also notes that at the February 1999 hearing before a member of the Board, the veteran testified that he suffered from bowel urgency and severe constipation followed by diarrhea. He reported that a VA physician indicated that his bowel problem could be related to his back problem. The Board observes that the Court has held that the Board is prohibited from reaching its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991). Further, when the medical evidence is inadequate, the VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Halstead v. Derwinski, 3 Vet.App. 213 (1992). Given the nature of the veteran's contentions, the contradictory evidence as to the actual presently diagnosed bowel disability, the etiological opinion expressed pursuant to the April 1999 treatment entry and in consideration of the Court's holdings in Colvin and Halstead, the Board concludes that an additional VA examination would be helpful in resolving the issue raised by the instant appeal. The Board observes that treatment records subsequent to April 1999 have neither been requested nor incorporated into the record. The Board is of the view that an attempt should be made to obtain any recent treatment records of possible pertinence to the veteran's claim. In light of the VA's duty to assist the veteran in the proper development of his claim as mandated by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) and as interpreted by the United States Court of Veterans Appeals (hereinafter "the Court") in Littke v. Derwinski, 1 Vet.App. 90, 92-93 (1990), this case is REMANDED for the following action: 1. The RO should notify the veteran that he may submit additional evidence and argument in support of his claim. See Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should request that the veteran provide information as to the medical facilities at which he received inpatient and outpatient treatment pertaining to his claimed disorder from April 1999 to the present. Upon receipt of the requested information, the RO should contact the identified facilities and request that all available pertinent clinical documentation be forwarded for incorporation into the record. 3. The RO should schedule the veteran for a VA examination by an appropriate specialist in order to determine the present nature and severity of his bowel disorder. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should express an opinion as to the etiology and approximate date of onset of any diagnosed bowel disorder, to include whether such disorder is etiologically related to or was aggravated by the veteran's service- connected lumbar spine disorder. See Allen v. Brown, 7 Vet.App. 439 (1995). A complete rationale for any opinion expressed should be provided. The examiner should specifically comment on the opinion expressed by the examiner pursuant to the April 1999 treatment entry. The claims folder must be made available to the examiner for review prior to the examination. 4. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the examination reports. If the examination reports do not include fully detailed descriptions of pathology or adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1995) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); and Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 5. Following completion of the above and following any additional development deemed necessary, the RO, in a rating decision, should reconsider the issue on appeal giving consideration to any additional evidence obtained. A supplemental statement of the case should also be prepared and issued. 6. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. When the requested action has been completed, and if his claim continues to be denied, the veteran should be afforded a reasonable period of time in which to respond to a supplemental statement of the case. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration if appropriate. The veteran need not take any action unless he is further informed. The purpose of this REMAND is to allow for further development of the record. No inference should be drawn from it regarding the final disposition of the veteran's claim. While regretting the delay involved in again remanding this case, it is felt that to proceed with a decision on the merits at this time would not withstand Court scrutiny. JEFF MARTIN Member, Board of Veterans' Appeals