Citation Nr: 0006528 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-14 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a right foot disability. 2. Entitlement to service connection for a gynecological disorder, to include as due to an undiagnosed illness. 3. Entitlement to a compensable evaluation for dermatitis. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from October 1988 until October 1992, including service in the Southwest Asia theater of operations during the Persian Gulf War period. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of April 1998 from the Roanoke, Virginia Regional Office (RO). The issues of entitlement to service connection for a right foot disability, and an increased rating for dermatitis, are addressed in a REMAND following the ORDER portion of this decision. FINDINGS OF FACT 1. The claim for service connection for a gynecological disorder, to include as due to an undiagnosed illness, is not plausible. 2. The claim for service connection for a right foot disability is plausible. CONCLUSIONS OF LAW 1. The claim for service connection for a gynecological disorder, to include as due to an undiagnosed illness, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim of entitlement to service connection for a right foot disability is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant asserts that she now has a gynecological disorder manifested by abnormal Pap smears in the military and a menstrual disorder which are of service onset, or are the result of an undiagnosed illness related to her Gulf War Zone experience for which service connection should now be granted by the Board. 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); 38 C.F.R. § 3.303(a) (1999). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (1999). 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 C.F.R. § 3.303(d) (1999). Service connection may be established for chronic disability resulting from an undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2001. 38 C.F.R. § 3.317(a)(1) (1999). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The 6-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first become manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from part 4 of chapter 38, Code of Federal Regulations, for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service- connected for purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5) (1999). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurologic signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. 38 C.F.R. § 3.317(b) (1999). The threshold question in this instance is whether the veteran has presented a well-grounded claim for service connection for a gynecological disorder. In this regard, she has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While a claim need not be conclusive, it must be accompanied by supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. See Epps v. Gober, 126 F.3d 1464 (1997); see also Slater v. Brown, 9 Vet. App. 240, 243 (1996); Gregory v Brown, 8 Vet. App. 563, 568 (1996). To establish that a claim for service connection, on a nonpresumptive basis, is well grounded, the veteran must satisfy three elements. First, there must be a medical demonstration of a current disability. Second, there must be medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury. Third, there must be medical evidence of a nexus between an in-service disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. Epps. Factual background The service medical records reflect that the veteran was seen for complaints of pelvic pain in March 1988. It was recorded that a colposcopy was accomplished which was normal. A Pap smear was noted to be Class I atypical. The appellant was noted to have been evaluated in the gynecology clinic in November 1988 for complaints of pruritus and dysuria which she stated would come and go. She indicated that the symptoms were not present at that time. An assessment of normal gynecological examination was rendered. In September 1989, it was recorded that she sought treatment for vaginal irritation of 14 days' duration. A vaginal examination revealed a thick white discharge. A Pap smear was performed. An assessment of vaginitis was rendered for which medication was prescribed. The results of a Pap smear performed in September 1989 showed that atypical squamous cells were present. A Pap smear in March 1990 was also noted to be abnormal but without evidence of dysplasia or malignancy. The veteran was seen in August 1990 for complaints of vaginal itching and lower abdominal cramps of two days' duration. It was reported that she had finished her menstrual cycle the day before, and described abdominal cramping intermittently with her menses. It was noted that she had been treated for a urinary tract infection in July 1990. Following evaluation, an assessment of probable yeast vaginismus secondary to antibiotic treatment for urinary tract infection was rendered. Medication was prescribed. The appellant underwent gynecological screening in November 1990 whereupon it was noted that she had a normal examination. A Pap smear performed in December 1990 was interpreted as Class III with evidence of mild dysplasia for which colposcopy and biopsy were recommended. A clinic note dated in December 1990 indicated that the veteran presented for colposcopy. In July 1991, a Pap smear was found to be Class II atypical but without evidence of malignancy, and was not diagnostic for dysplasia. Follow-up as clinically appropriate was recommended. The veteran underwent a cytology examination in February 1992 for what was noted to be atypical cells in November 1990; the results of which were found to be within normal limits. Upon examination in August 1992 for separation from active duty, it was recorded that her last Pap smear in February 1992 had been normal. The pelvic examination was evaluated as normal. The veteran indicated at that time that there had been a change in her menstrual pattern. The veteran filed a claim for service connection for disabilities which included a menstrual disorder in May 1996. An undated private record was received indicating that she sought treatment from B. C. Johnson, M.D., Ph.D., for complaints of intermittent vaginal bleeding. A physical examination was within normal limits. An assessment of status post menses was rendered. The appellant was noted to have been reassured. Pursuant to the filing of her claim, the veteran was afforded a VA general medical examination in June 1996. She stated that her menstrual cycle came on when it wanted to, and when it did come, lasted only about three days. She indicated that a private physician had told her that 'everything was okay' and that her menstrual problems were related to a thyroid abnormality for which she was taking hormones. She said that she had been advised that her Pap smear was normal. A diagnosis of menstrual disorder was noted in this regard. In statements to the RO dated in June 1996 and June 1997, the veteran's husband attested to her having menstrual problems. The veteran underwent a VA gynecological examination in February 1998. She provided a detailed history of her menstrual and gynecologic history. Following physical evaluation and laboratory testing, the examiner stated that by history, the appellant did not have a menstrual disorder. It was noted that she was taking birth control pills with no trouble and had no infertility problem. It was the opinion of the examiner that it was not apparent at that time that the veteran had a menstrual disorder. Analysis Although the veteran claims that she has a gynecological disability of service onset, the record contains no competent evidence to support this statement. While the service medical records do indeed indicate several atypical Pap smears and menstrual symptoms while she was in the military, it is not shown that such findings have resulted in any disease entity or chronic disability. It was clearly noted on her service discharge examination report of August 1992 that her last Pap smear was normal. The postservice records show no abnormal results in this regard, and the appellant has stated that her private physician told her that a post- service Pap smear was normal. On most recent VA examination in February 1998, it was determined that she had no menstrual disorder. The veteran herself has not presented any clinical evidence to the contrary. Consequently, there is no competent medical evidence or diagnosis of any ratable gynecological disability at this time for which service connection may be considered. A claim for service-connection must be accompanied by evidence which establishes that the claimed disability currently exists. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A well-grounded claim requires evidence of a present disability. Brammer at 223. Service connection may not be established in the absence of a demonstration of a ratable disability. While the veteran continues to claim that abnormal Pap smears and a menstrual disorder are of service onset, and her husband has also attested to such symptoms, the Board points out that as laypersons who are untrained in the field of medicine, they are not competent to provide a diagnosis as to this matter. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Consequently, their assertions that the veteran now has a ratable gynecological disability do not constitute cognizable evidence upon which to reach the merits of this matter, especially in view of the clinically negative findings on examination. The Board must also point out in this instance that a well- grounded claim must be supported by evidence, more than merely allegations. Tirpak at 609, 611. Accordingly, without the requisite competent evidence reflecting that the veteran currently has a ratable disability manifested by an abnormal Pap smear, or a diagnosed menstrual disorder, her claim for service connection for such is not well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Tirpak at 611. Accordingly, the appeal is denied. See Edenfield v. Brown, 8 Vet.App. 384 (1995). As the veteran's claim is not well grounded, the VA has no further duty to assist her in developing the record to support this appeal. See Epps, supra. Moreover, the Board is not otherwise aware of the existence of any relevant evidence which, if obtained, would make this claim well grounded. See McKnight v. Gober, No. 97-7062 (Fed.Cir. Dec. 16, 1997) (per curiam). As the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussions above sufficient to inform the veteran of the elements necessary to complete her application for service connection for the above cited disorder. Robinette, 8 Vet.App. at 77. 2. Service connection for a right foot disability. 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. As noted previously, 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 incurrence 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. After a thorough review of the evidence, the Board concludes that the veteran has presented a well-grounded claim for service connection for residuals of right foot stress fracture. The service medical record reflects that the veteran was treated for a right ankle sprain in November 1998. She also sustained a stress fracture of the right third metatarsal in February 1989 which was observed on X- ray. She noted upon service discharge examination in August 1992 that she continued to have foot pain. On VA examination in June 1996, the right foot was observed to be slightly swollen as opposed to the left. In a statement to the RO dated in May 1998, the appellant indicated that she continued to have pain in the right foot and said it was not properly aligned. The Board thus finds that the three requirements for a well-grounded claim under Epps have been substantially met, to include a condition noted during service, and evidence of post-service continuity of symptomatology. The claim of service connection for residuals of right foot stress fracture is thus found to be well grounded. ORDER The claim for service connection for a gynecological disorder, to include as due to an undiagnosed illness, is not well grounded, and the appeal is therefore denied. The claim for residuals of right foot stress fracture is well grounded, and the appeal is allowed to this extent. REMAND As noted previously, the service medical records reflect that appellant received treatment for a stress fracture of the third right metatarsal and a right ankle sprain. On VA general medical examination in June 1996, a diagnosis in this regard noted that she had a normal physical examination and X-ray, but that the right foot was observed to be slightly swollen. The cause of the swelling was not identified. The Board finds in this instance that further examination is warranted in order to more accurately determine whether or not the appellant continues to exhibit symptoms of the inservice right foot stress fracture. As well, the veteran asserts that the symptoms associated with her service-connected dermatitis disorder warrant a compensable evaluation. In this regard, the Board notes that she has not had a VA examination of the skin since June 1996. The record also reflects that the appellant submitted a private clinical record showing treatment for a generalized skin rash in August 1997. The Board is of the opinion that a current skin examination is in order to determine the current symptomatology picture, and that all available private records in this respect should be requested and associated with the claims folder. Because the claim of entitlement to service connection for residuals of right foot stress fracture and increased rating for dermatitis are well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The fulfillment of the VA's statutory duty to assist the appellant includes providing additional VA examinations by specialists when indicated, and conducting a thorough and contemporaneous medical examination, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet.App. 221 (1991); Green v. Derwinski, 1 Vet.App. 121, 124 (1991). Under the circumstances, this case is REMANDED to the RO for the following actions: 1. The veteran should be requested to provide the complete names and addresses of any and all physicians and/or providers who have treated her for skin and right foot complaints after her release from active duty. After authorization has been obtained, these records should be requested and associated with the claims folder. 2. The RO should schedule the appellant for examinations by VA specialists in dermatology, and podiatry to determine the nature and etiology of any disability with respect to her claims for an increased rating for dermatitis, and service connection for residuals of right foot stress fracture. The examiners must be provided with the appellant's claims folder and a copy of this remand for review prior to conducting the examinations. The examination reports should clearly reflect whether a review of the claims folder was performed. All necessary tests and studies should be performed, and all clinical manifestations should be reported in detail. Based on a review of all medical documentation and history on file, including the service medical records, the podiatry examiner should provide a well- reasoned opinion as to the likelihood that the veteran now has any chronic residuals of right foot stress fracture or right ankle injury in service. The examination report should set forth in a clear, comprehensive, and legible manner all pertinent findings, and should include complete rationale for the opinion expressed. In particular, all terms used in assessing the appellant's disability should be free of ambiguity. The examination reports should be returned in a legible narrative format. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that the requested development has been completed in full. 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 to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 4. The appellant should be given adequate notice of the examination, to include advising her of the consequences of her failure to report. If she fails to appear for the examination, this fact should be noted in the claims folder and a copy of the examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims folder. 5. Following completion of the requested development, the agency of original jurisdiction should again consider the appellant's claims and determine whether or not they may be granted. The RO should readjudicate the veteran's claims, to include consideration of whether a "staged" rating is warranted for manifestations of the service-connected dermatitis. Fenderson v. West, 12 Vet. App. 119, 126 (1999). If action remains adverse to the appellant, she should be furnished a supplemental statement of the case and be given the opportunity to respond. The case should then be returned to the Board for further appellate consideration. No action on the part of the appellant is required until she receives further notice. The Board intimates no opinion, either favorable or unfavorable, as to the ultimate disposition of the issues on appeal. The appellant 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). 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. U. R. POWELL Member, Board of Veterans' Appeals