Citation Nr: 0007604 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 95-05 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for the residuals of a neck injury, claimed as muscle spasms. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a jaw disorder due to the residuals of a dental injection. 3. Entitlement to service connection for tumors of the reproductive organs, currently diagnosed as uterine fibroid tumors. 4. Entitlement to service connection for a chronic respiratory disorder. 5. Entitlement to service connection for the chronic residuals of a broken left leg. 6. Entitlement to service connection for an acquired psychiatric disorder. 7. Entitlement to service connection for a gastrointestinal disorder, claimed as abdominal pain. 8. Entitlement to service connection for the residuals of keloid removal, bilateral earlobes. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.A. Howell, Counsel INTRODUCTION The veteran served on active duty from September 1975 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the claims on appeal. On three separate occasions, the Board remanded several of the issues for additional development and clarification. As such, all the service connection claims, with the exception of the claims for a psychiatric disorder and keloids of the earlobes, are now ready for appellate review. Further, the remaining issues of whether new and material evidence has been submitted to reopen claims of service connection for neck and jaw disorders will also be discussed only in the REMAND section of this Board decision. FINDINGS OF FACT 1. To the extent required, the RO has developed all evidence necessary for an equitable disposition of the veteran's claims considered herein. 2. The veteran's service medical records do not contain any complaints, findings, or diagnoses of tumors of the reproductive organs. 3. The medical evidence does not relate the veteran's uterine fibroid tumors with any event or occurrence on active duty service. 4. The veteran has not submitted evidence of a medical nexus between military service and the currently-diagnosed uterine fibroid tumors. 5. A chronic respiratory disorder is not currently shown based on the medical evidence submitted for the record. 6. The chronic residuals of a broken left leg are not currently shown based on the medical evidence submitted for the record. 7. A gastrointestinal disorder, claimed as abdominal pain, is not currently shown based on the medical evidence submitted for the record. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for tumors of the reproductive organs, currently diagnosed as uterine fibroid tumors, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & West 1999); 38 C.F.R. § 3.303 (1999). 2. The claim for entitlement to service connection for a chronic respiratory disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & West 1999); 38 C.F.R. § 3.303 (1999). 3. The claim for entitlement to service connection for the chronic residuals of a broken left leg is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & West 1999); 38 C.F.R. § 3.303 (1999). 4. The claim for entitlement to service connection for a gastrointestinal disorder, claimed as abdominal pain, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991 & West 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). However, continuity of symptoms is required where the condition in service is not, in fact, chronic or where diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (1999). In addition, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b) (West 1991 & Supp. 1999); 38 C.F.R. § 3.303(d) (1999). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the threshold question which must be resolved with regard to each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A plausible claim is "one which is meritorious on its own or capable of substantiation." Black v. Brown, 10 Vet. App. 279 (1997). The duty to assist under 38 U.S.C.A. § 5107(a) is triggered only after a well-grounded claim is submitted. See Anderson v. Brown, 9 Vet. App. 542, 546 (1996); Peters v. Brown, 6 Vet. App. 540, 546 (1994). Evidentiary assertions by the person who submits a claim must be accepted as true for the purposes of determining whether a claim is well-grounded, except where the evidentiary assertion is inherently incredible or beyond the competence of the person making the assertion. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19 (1993). Where the determinative issue is factual rather than medical in nature, competent lay testimony may constitute sufficient evidence to well ground the claim. See Caluza v. Brown, 7 Vet. App. 498, 504 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). For a service-connected claim to be well-grounded, there must be a medical diagnosis of current disability, lay or medical evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence of a nexus between the in-service injury or disease and current disability. See Epps v. Brown, 9 Vet. App. 341, 343- 44 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). I. Entitlement to Service Connection for Tumors of the Reproductive Organs, Currently Diagnosed as Uterine Fibroid Tumors A review of the veteran's service medical records reveals that she complained of nausea secondary to birth control pills in March 1975 and was treated with Phenergan. In September 1975, she reported cramping in her stomach due to menstruation. She again sought treatment in January 1976 for menstrual cramps. The examiner noted that the stomach cramps were severe and the veteran appeared weak. She was noted to be hemorrhaging excessively. A year later, she complained of, among other things, vaginal discharge in January 1977. A pelvic examination revealed mild frothy discharge and Flagyl was prescribed. In February 1977, she underwent a cytology examination and was noted to have an unusually small vaginal orifice. The examiner remarked that she was unable to conduct an adequate examination and recommended a thorough pelvic examination under anesthesia. In a June 1977 gynecological examination report, there were no masses palpated and the veteran's uterus seemed normal, although the examiner noted abdominal wall guarding during the examination. The progress note indicated that the pelvic examination was normal. In March 1978, the veteran was treated for a possible urinary tract infection after reporting white milky or brownish discharge. In November 1978, a pelvic examination showed purulent discharge and tetracycline was ordered. The July 1979 separation examination report demonstrates a normal clinical evaluation of the veteran's pelvis based on a vaginal examination. In addition, there is no indication of any in-service history of tumor, growth, or cysts. Post service medical evidence reveals that she sought treatment through Employee Health in August 1988 for unnamed gynecological problems and she was referred to a clinic. There is no further treatment noted until a July 1991 pelvic ultrasound, which showed that the uterus was enlarged and somewhat lobular in appearance compatible with multiple fibroids. It what appears to be a 1993 annual physical examination report, the veteran was noted to have a normal external pelvic examination and her cervix was clean. However, the clinical impressions included uterine fibroids, and dysfunctional uterine bleeding. The treating physician recommended that the veteran undergo an abdominal hysterectomy. However, a September 1993 treatment note indicates that the veteran desired to become pregnant and a treatment plan was initiated. There is no further mention of fibroid tumors in the medical records except for one occasion in September 1998, when it was noted by history. At a September 1995 personal hearing, the veteran testified that she was having lower abdominal pain and was told that she had fibroids. She indicated that she was given birth control pills in service to regulate her cycle but that it did not help. After service, she related that she had an ultrasound and was ultimately told she had fibroid tumors. One doctor recommended a total hysterectomy but she had not undergone that procedure. She observed that she was first treated for gynecological problems a year after discharge but the records were not available. Upon further questioning, she indicated that she was first told she had fibroid tumors after she underwent an ultrasound. Based on the evidence above, the Board finds that the veteran's claim for tumors of the reproductive organs, currently diagnosed as uterine fibroid tumors, is not well grounded. First, there is no evidence of fibroid tumors in service. While the Board notes that the veteran experienced several gynecological complaints, including heavy flow, menstrual cramping, and vaginal discharge, the pelvic examinations were all normal. Further, post-service medical records are negative for gynecological treatment until 1988, nearly ten years after service separation. Moreover, there is no clear evidence of uterine fibroid tumors until 1991, some twelve years after service separation. Significantly, other than the veteran's assertions, no physician has associated her uterine fibroid tumors to active military service. Thus, the medical evidence of record fails to establish a medical nexus between active duty service and the veteran's current complaints, and the claim must be denied as not well grounded. II. Entitlement to Service Connection for a Chronic Respiratory Disorder A review of the veteran's service medical records reveals that in October 1976, she reported nasal congestion with cough. Physical examination revealed pharyngitis and bronchitis. In March 1978, she complained of fever, cough, and nausea and reported a long history of upper respiratory infections. The clinical assessment was upper respiratory infection and she was treated with bedrest, fluids, and Ampicillin. The July 1979 separation examination report demonstrates a normal clinical evaluation of the veteran's lungs and chest. In addition, there is no indication of any in-service chronic respiratory disorder. Post-service medical evidence indicates that the veteran was treated in November 1986 for laryngitis with Ampicillin. In a July 1987 VA examination report, she had no complaints associated with a chronic respiratory disorder. A September 1990 chest X-ray was normal. In August 1993, she sought treatment for an upper respiratory infection, which resolved without complications several weeks later. In a September 1995 personal hearing, the veteran testified that she had currently been diagnosed with a respiratory problem and was on antibiotics. She denied receiving treatment while in service because she did not want it on her military record. She indicated that she complained of a sore throat on several occasions and lost her voice. She had been recently told that she had an upper respiratory infection. Upon further questioning, she related that she was constantly having respiratory problems with cough and phlegm but was not on constant medication. She admitted to smoking a pack of cigarettes every other day and had never been told that she had emphysema or chronic obstructive pulmonary disease but was treated mostly for upper respiratory infections. Based on the evidence above, the Board finds that the veteran's claim for a chronic respiratory disorder is not well grounded. First, there is no evidence of a chronic respiratory disorder in service. While the Board notes that the veteran experienced a couple episodes of upper respiratory infections, the service separation examination revealed a normal clinical evaluation of the veteran's lungs. Further, post-service medical records show only two incidents of respiratory infection, the first in 1986, over seven years after service separation. Moreover, at that time of post- service treatment, there was no indication of a causal connection between her respiratory complaints and active military service. Finally, the Board is persuaded by the lack of respiratory complaints in a July 1987 VA examination and a normal chest X-ray in September 1990. Thus, the medical evidence of record fails to establish a medical nexus between active duty service and the veteran's respiratory complaints, and the claim must be denied as not well grounded. III. Entitlement to Service Connection for the Residuals of a Broken Left Leg A review of the veteran's service medical records reveals no complaints, symptomatology, or findings consistent with a broken leg or ankle. The Board notes that in August 1976, the veteran reportedly fell on her left knee. It was described as swollen and painful. The clinical assessment was soft tissue trauma and the knee appeared stable. She was placed on light duty. In September 1976, she sought treatment for a bruised right thigh. A hematoma of the right thigh was noted. There are no other medical records referencing a broken leg or ankle. The July 1979 separation examination report demonstrates a normal clinical evaluation of the veteran's lower extremities. In addition, there is no indication of any in-service history of a leg or ankle injury of any kind. Post-service medical evidence reveals that the veteran tripped over a chair at her workplace in February 1988 and complained of pain in the lower right leg and ankle. An X- ray showed no fracture and an ace bandage was applied. Several days later, the injury was characterized as to the right knee. In May 1989, she reported to Employee Health with a one-day complaint of pain in the anterior lower right leg. She was treated with Motrin and warm compresses. It appears that she also complained of right ankle pain in April 1991 and was diagnosed with a right ankle strain. At the September 1995 personal hearing, the veteran testified that she broke her leg in service while serving at sea. She indicated that they wanted to helicopter her in but she wanted to wait for treatment until they were back at port. She reported that she was placed on crutches. She initially reflected that it was the right leg that was broken but then changed it to the left leg when it was pointed out that the RO had considered the claim as the residuals of a left leg fracture. She noted that the leg was broken around the ankle area but appeared to admit that one doctor told her it was sprained. She stressed that she was taken off duty because of it but she was not placed in a cast. She related current problems with her shoes and noted that she limped at work. Upon further questioning, the veteran indicated that the doctor never actually told her that her leg was broken only that it could have been broken. However, she stressed that it was broken because she was put on crutches. She reported that she was given an ace wrap and used crutches for two or three days but never had a cast or surgery. Based on the above evidence, the Board finds that there is no competent medical opinion on file or presented to the effect that the veteran's claimed broken leg is related to service. First, there is no evidence of a fracture of the leg or ankle or similar symptomatology shown in service. In addition, although the Board notes that the veteran had complaints associated with the left knee and right thigh, there was no indication that she was placed on crutches and no X-rays reflecting a possible fracture. Finally, post-service medical evidence shows complaints of a right lower leg and ankle treatment due to an on-the-job injury; however, there was no connection made between the veteran's post-service treatment and military service. Thus, the medical evidence of record fails to establish a medical nexus between active duty service and the veteran's complaints, and the claim must be denied as not well grounded. IV. Entitlement to Service Connection for a Gastrointestinal Disorder, Claimed as Abdominal Pain A review of the veteran's service medical records reveals that in January 1977, she complained of, among other things, nausea and vomiting after meals. Bowel sounds were normal and she denied abdominal pain at the time of the examination. The examiner noted no palpable pathology. Later that same month, she reported a two day history of constipation and was treated with Dulcolax. When her bowels moved the day of the examination she complained of burning and was noted to have eaten hot tacos the night before. The clinical impression was irritation due to ingestion of spicy foods. In October 1978, the veteran complained of a two week history of diarrhea and left flank pain. It was noted that her father had died a few months previously. In November 1978, she reported a six day history of pain in the right lower quadrant and had been told to seek a gynecological evaluation. Physical examination revealed tenderness in the right lower quadrant near the pelvis. The clinical impression was subsiding appendicitis v. ileitis v. renal colic. In November 1978, she complained of right side pain. The examiner noted that it might be due to renal colic. A week later, she reported no complaints and all findings were reported as negative, including a urinalysis, intravenous pyelogram (IVP), and barium enema. Mineral oil and milk of magnesia were recommended and she was returned to regular duty. The July 1979 separation examination report demonstrates a normal clinical evaluation of the veteran's abdomen and viscera. In addition, there is no indication of any in-service history of a chronic gastrointestinal disorder. Post service medical evidence is negative for complaints of, treatment for, or diagnosis of a gastrointestinal disorder. At the September 1995 personal hearing, the veteran testified that she had tenderness across the lower abdomen in service and had trouble keeping food down. She reported that she had a nervous stomach but was also bleeding from gynecological problems. Upon further questioning, she related that she vomited after meals and was told that it could be related to her female problems. After a review of the evidence, the Board concludes that the veteran's contentions, to the effect that she has a gastrointestinal disorder, are not supported by the record. In particular, the Board must point out that the post-service medical evidence does not indicate that the veteran has been diagnosed with a current gastrointestinal disability. While she has asserted that her abdominal problems are apparently the same complaints she reported in service, it must be emphasized that the medical evidence of record does not show that any chronic residuals of an in-service gastrointestinal disorder are exhibited at this time. Specifically, service medical records show that the veteran was treated in service once for nausea and vomiting without pathology and once for irritation due to the ingestion of spicy foods. However, the service separation examination was normal. An absence of a chronic gastrointestinal disorder is further reflected in the complete absence of post-service medical treatment for a gastrointestinal disorder. Accordingly, despite the veteran's assertions to the contrary, the objective medical evidence of record does not show that a chronic gastrointestinal disorder is exhibited at this time. Since, as previously discussed, service connection cannot be granted for a disability that is not currently manifested, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual that service connection for a gastrointestinal disorder could be granted. The Board accordingly finds that her claim for service connection is not well grounded and is therefore denied. ORDER Entitlement to service connection for tumors of the reproductive organs, currently diagnosed as uterine fibroid tumors, is denied on the basis that the claim is not well grounded. Entitlement to service connection for a chronic respiratory disorder is denied on the basis that the claim is not well grounded. Entitlement to service connection for the residuals of a broken left leg is denied on the basis that the claim is not well grounded. Entitlement to service connection for a gastrointestinal disorder, claimed as abdominal pain, is denied on the basis that the claim is not well grounded. REMAND With respect to the remaining issues of new and material evidence to reopen a claim of entitlement to service connection for the residuals of a neck injury, claimed as muscle spasms, new and material evidence to reopen a claim of entitlement to service connection for a jaw disorder due to the residuals of a dental injection, entitlement to service connection for an acquired psychiatric disorder, and entitlement to service connection for the residuals of keloid removal, bilateral earlobes, the Board finds, as an initial matter, that determinations with respect to well-groundedness need not be made at this time as a remand is necessary in order to correct procedural or due process defects. With respect to the two claims for new and material evidence, the Board notes that during the pendency of the veteran's appeal, the United States Court of Appeals for the Federal Circuit overturned the test that had been used for new and material evidence. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The now-current standard for the submission of new and material evidence was not in effect at the time of the original RO decision. As such, due process in this case dictates that this case be remanded for initial consideration and readjudication by the RO under the guidance provided in Hodge. With respect to the claim for entitlement to service connection for an acquired psychiatric disorder, service medical records reference the veteran as having "very mild anxiety" and she was prescribed medication for sleep. In a personal hearing, the veteran testified that she was receiving current VA psychiatric treatment; however, those records are not on file. As the VA is deemed in constructive possession of VA medical evidence, an attempt should be made to associate those records with the claims file. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). With respect to the claim of service connection for keloids of the earlobes, the Board notes that it does not appear that the issue was timely appealed. Specifically, under the appropriate regulations, an appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely Substantive Appeal. 38 C.F.R. § 20.200 (1999). A Substantive Appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. If a Statement of the Case addresses several issues, the appeal must either indicate that it is being perfected as to all issues or must specifically identify the issues appealed. 38 C.F.R. § 20.202 (1999). Additionally, a veteran may request an extension of the 60-day period for filing a Substantive Appeal for good cause. The request for such an extension should be in writing and must be made prior to the expiration of the time limit for filing the Substantive Appeal. 38 C.F.R. §§ 20.202, 20.303 (1999). In this case, the RO denied entitlement to service connection for the residuals of keloid removal by rating decision dated in March 1995. The notice of disagreement was filed in June 1995. By remand dated in September 1997, the Board noted that a Statement of the Case had not yet been issued. Thereafter, the RO issued a Statement of the Case in November 1998. The veteran was informed that she had had sixty days from the mailing of the Statement of the Case or the remainder of the one year period from the mailing of the rating decision, which ever was later, in which to file a Substantive Appeal. 38 C.F.R. § 20.302 (1999). However, it appears to the Board that the veteran failed to timely file Substantive Appeal with the RO as required under the regulation. 38 C.F.R. § 20.300 (1999). There was no further correspondence from the veteran on these issues until her service representative submitted a Statement of Accredited Representative in Appealed Case in May 1999. Nonetheless, as the issue of timeliness is itself an appealable issue and was not addressed by the RO, the Board finds that the issue of timeliness of the Substantive Appeal on this issue should be remanded for consideration and the veteran should be accorded an opportunity to respond thereto. See Marsh v. West, 11 Vet. App. 468 (1998). To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to her claims and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following developments: 1. The veteran is advised that while the case is on remand status, she is free to submit additional evidence and argument on any issue. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 2. The RO should specifically contact the veteran to determine the names, addresses, and dates of treatment of any physicians, hospitals, treatment centers, or employers (private, VA or military) who have provided her with relevant treatment for any psychiatric disorder, not already associated with the claims file, including VA treatment records. After obtaining the appropriate signed authorization for release of information forms from the veteran, the RO should contact each physician, hospital, treatment center, or employer specified by the veteran, including VA records, to request specifically any and all medical or treatment records or reports relevant to her psychiatric claim. All pieces of correspondence, as well as any medical or treatment records obtained, should be made a part of the claims folder. If private treatment is reported and those records are not obtained, the veteran and her representative should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1999). 3. The RO should thereafter readjudicate the issue of entitlement to service connection for an acquired psychiatric disorder. In the event the benefits sought are not granted, the veteran and her representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. 4. The RO should also readjudicate the issues of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for the residuals of a neck injury and whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a jaw disorder due to the residuals of a dental injection with reference to the current standard for the submission of new and material evidence as outlined in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998), and 38 C.F.R. § 3.156 (1999). If the RO determines that new and material evidence has been submitted such that one or both of the claims are reopened, it should then determine whether the reopened claim(s) is well grounded. Elkins v West, 12 Vet. App. 209 (1999). The RO should only proceed to consider the merits of the case if the reopened claim(s) is found to be well grounded. In the event the benefits sought are not granted, the veteran and her representative should be provided with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. 5. With respect to the timeliness issue, the RO should readjudicate the issue of entitlement to service connection for the residuals of keloid removal, bilateral earlobes, to include whether a Substantive Appeal was timely filed. The veteran and her representative should be provided with a Statement of the Case and afforded a reasonable opportunity to respond thereto, if appropriate. Thereafter, the case should be returned to the Board in accordance with appropriate procedure. No action is required of the veteran or her representative until further notice. 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. MICHAEL D. LYON Member, Board of Veterans' Appeal