Citation Nr: 0004958 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-07 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for urinary tract problems. 2. Entitlement to service connection for a herniated disc. 3. Entitlement to service connection for chest pain. 4. Entitlement to service connection for right rib pain. 5. Entitlement to service connection for migraine headaches. 6. Entitlement to an increased rating for service connected residuals of a fracture of the transverse process at the L3 vertebral disc level with arthritis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. P. Kennedy, Associate Counsel INTRODUCTION The veteran served on active duty from February 1946 to December 1946, from January 1951 to January 1954, and from July 1955 to January 1973. This case comes before the Board of Veterans' Appeals (Board) from an appeal of a rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veteran Affairs (VA), in which the RO denied service connection for urinary tract problems, a herniated disc, chest pain, right rib pain, and migraine headaches, and also denied an increased rating for residuals of a fracture of the transverse process at the L3 vertebral disk level with arthritis, rated as 20 percent disabling. The issues of service connection for herniated disc and increased rating for residuals of fracture at L3 with arthritis are addressed in the remand appended to this decision. FINDINGS OF FACT 1. The record does not contain competent medical opinion linking current urinary tract disability to possible bladder infection or other incident of active service. 2. The record does not contain a confirmed diagnosis of a current right rib disability. 3. The record does not contain competent medical opinion linking the currently diagnosed migraine headaches and an inservice disease or injury. 4. The veteran reported sustaining chest injury in a motor vehicle accident during his active military service, and he currently has a diagnosis of costochondritis associated with his military service. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for urinary tract problems is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(d) (1999). 2. The veteran's claim for service connection for right rib pain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.303(d) (1999). 3. The veteran's claim for service connection for migraine headaches is not well grounded. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). 4. Chest pain, diagnosed as costochondritis, was incurred during active wartime service. 38 U.S.C.A. § 1110, 5107(b)(West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Service connection claims The threshold question that must be resolved regarding any given claim is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If he or she has not, the appeal fails as to that claim, and the Board is under no duty to assist him or her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The United States Court of Veterans Appeals (now the Court of Appeals for Veterans Claims, hereinafter the Court) has held that a well grounded claim is comprised of three specific elements: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability, as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996) (table). In the absence of any one of these three elements, the claim is not plausible, and the Board must find that the claim for service connection is not well grounded and therefore must be denied, pursuant to the decision of the Court in Edenfield v. Brown, 8 Vet. App. 384 (1995). As the following discussion will conclude, the veteran has failed to submit a well grounded claim on the issues of service connection for urinary tract problems, right rib pain and migraine headaches before the Board. The issue of chest pain will be handled separately. The Court has held that, when a claimant fails to submit a well grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996). The Board finds that this procedural consideration has been satisfied in this case. Moreover, unlike the situation in Robinette, the veteran has not put VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make any of these claims well grounded. a. urinary tract problems The Board considers the evidence in light of the three Caluza elements previously described, and finds that the record does not reveal a chronic urinary tract problem in service. The veteran's service medical records show one episode of treatment for possible bladder infection (passing blood) in October 1972. Otherwise, service medical records are negative for a urinary tract problem. The veteran completed Reports of Medical History in January 1951, January 1954, October 1954, August 1968, August 1969, October 1970, and August 1972, and each time indicated that he did not have any history of painful or frequent urination. Likewise, none of the Reports of Medical Examination in the service medical records reflect any urinary problem detected by a medical examiner. The first evidence on record of any urinary problems is in February 1992, almost 20 years after service discharge, when VA radiology diagnostic tests, including a bladder sonogram, revealed a distended bladder and moderate prostatic enlargement with a midline cyst at the base of the gland. A March 1992 prostate sonogram resulted in a diagnostic impression of moderate prostatic enlargement with inner gland changes consistent with benign prostatic hyperplasia including moderate calcifications and small cystic area. Subsequently, based on October 1995 through October 1996 VA outpatient treatment records, the veteran complained of nocturia and other urinary symptoms, and was diagnosed with prostatism. However, the Board finds no competent medical opinion linking the currently diagnosed urinary tract disability to the one episode of possible bladder infection in service or to any other incident of service. Therefore, the Board finds that the veteran's claim for service connection for urinary tract problems is not well grounded. See Caluza, supra. b. right rib pain The Board first looks for evidence of a diagnosed right rib disability, and finds that the veteran's claim fails on this count. The veteran complains of current right rib pain. However, pain is merely a symptom, although it may be a manifestation of a disease or injury. By itself, pain is not an identifiable disability. A disability is an identifiable residual of a disease or injury. A claim for service connection requires a disability or death. See 38 C.F.R. § 3.1(k) (1999). In this case, the medical evidence does not demonstrate the existence of chronic rib disability. An X-ray examination conducted in October 1996 from Henry B. Floyd, M.D., revealed plain films of the right ribs showing no focal osseous abnormality and no definite acute fracture. The October 1998 VA examination does not reveal any evidence of rib pain or a diagnosed rib disability. The Board will consider the issue of chest pain in a following section. After reviewing the entire record, the Board finds no evidence of a current rib disability, based on medical diagnosis, and thus finds that the veteran's claim on this issue is not well grounded. See Caluza, supra. c. migraine headaches The issue of service connection for headaches was denied by final rating decision in August 1980. By rating decision in January 1984, the RO, in granting service connection for posttraumatic stress disorder, indicated that "It is also felt that [the veteran's] headaches are more likely a symptom of his posttraumatic stress disorder". Accordingly, the veteran is already service connection for those headaches that are manifestations of service connected disability. The veteran's current claim involves service connection for a particular form of headaches, namely migraine headaches. Because this particular disability has not been the subject of a prior rating decision, the RO has reviewed the claim on the merits, and the Board will do likewise. The Board looks first to evidence of a current migraine headache disability. The first medical evidence specifically of migraine headaches is found in the records of Dr. Allan Kaplan. In October 1996, Dr. Kaplan noted that the veteran had typical migraine attacks. During his October 1998 VA examination, and specifically during the spine examination, the examiner stated that significant degenerative disease with loss of disc height at the C4-C6 levels and posterior osteophyte formation may be attributed to the veteran's migraine-type headaches. While there is medical evidence of the existence of migraine headache disability, there is no medical opinion linking the migraine headaches to service. The veteran states that he began having headaches after a mine explosion in Vietnam, but as a layman, he is not considered competent on matters of medical diagnosis or etiology. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). In fact, there is no evidence of migraine headaches until many years after service, and no medical evidence providing as nexus between migraine headaches and inservice disease or injury. Accordingly, the Board find that the veteran has not satisfied the elements of a well grounded claim. See Caluza, supra. e. chest pain The Board finds that the veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a)(West 1991), as defined by Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is also satisfied that all appropriate development has been accomplished and no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). As indicated above, the veteran contends that he has a chest pain disability caused by his active military service and that service connection is thus warranted. The veteran's service records confirm his complaints of chest pain following a motor vehicle accident. Records from November 1969 through discharge physical reports in August 1972 reveal repeated complaints of chest pain. An April 1970 treatment record entry describes the pain as existing in the left pectoralis major, in the chest wall. The service medical records do not, however, reveal any diagnosis relative to this condition. His discharge physical examination report indicates that he was hospitalized for two days for his chest pains, but studies were normal and no definitive diagnosis was established. The Board finds no basis to dispute the authenticity of the veteran's account of the incurrence of chest pain due to this accident. The Board also notes that the October 1998 VA examination report describes the veteran's complaints of sporadic chest pain located at the left precordial area, that felt sharp and lasted for one or two minutes. The veteran denied any heart palpitations and has never had any workups for heart disease. Chest X-rays were normal. The examiner concluded in his diagnosis that the chest pains, which appeared to come from the chest wall, appeared to be episodes of costochondritis. The examiner also related this chest pain condition to the veteran's military service, specifically the evidence from his retirement physical. The Board finds that the evidence from the October 1998 VA examination provides a diagnosed residual disability due to the inservice chest pain, namely costochondritis. Thus, the totality of the evidence surrounding the veteran's military service supports the veteran's service connection claim. In accordance with 38 C.F.R. § 3.303 (1999), the Board considers his current chest pain, diagnosed as costochondritis, to have been incurred in service. ORDER Entitlement to service connection for urinary tract problems is denied. Entitlement to service connection for right rib pain is denied. Entitlement to service connection for migraine headaches is denied. Entitlement to service connection for chest pain, diagnosed as costochondritis, is granted. REMAND The veteran is currently service connected for a low back disability, namely residuals of fracture of the transverse process at the L3 disc level with arthritis. He now claims service connection for another disability of the low back, namely herniated disc. The service connected low back disability cannot be rated until the existence of herniated disc is confirmed or ruled out and it relationship to the service connected disability clarified. In this regard, when the veteran underwent VA joints and spine examination in October 1998, it was noted that he would undergo a magnetic resonance imaging (MRI) scan without contrast to rule out a herniated nucleus pulposus. Review of the record does not reveal a copy of the requested MRI testing of the lumbar spine. As VA has already stated that this test will be performed to determine the existence of any herniated disc, the Board finds that these test results are required before the Board can decide the veteran's appeal on this issue. Then, further medical opinion on the existence of herniated disc and its relationship to service connected disability is necessary. Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should obtain the MRI test results of the veteran's lumbar spine referred to in the October 1998 VA examination report, and all other current VA treatment records. 2. Then, the veteran should be afforded VA examination by an orthopedic specialist. The purpose of the examination is to determine the nature, severity and etiology of current low back disabilities. Following examination, the examiner is requested to answer the following questions: (1) Is it at least as likely as not that the veteran has herniated disc of the low back; (2) If so, is it at least as likely as not that the herniated disc was caused by, or is the result of, or represents a progression of, the service connected residuals of fracture of the transverse process at the L3 vertebral disc level with arthritis; (3) If not, what are the signs and symptoms due solely to the service connected back disability? Any indicated tests or studies necessary to answer the questions posed should be ordered by the examiner. The claims file should be made available for review. 3. The RO should readjudicate the service connection and increased rating claims. If the benefits sought on appeal remain denied, the RO should furnish to the veteran and his representative a supplemental statement of the case and give them the opportunity to respond thereto. The veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is hereby notified that it is the veteran's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (1999); see Wood v. Derwinski, 1 Vet.App. 191, 193 (1991). 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 (known as the United States Court of Veterans Appeals prior to March 1, 1999) 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. 1998) (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. NANCY I. PHILLIPS Member, Board of Veterans' Appeals