Citation Nr: 0003032 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 98-15 816A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left leg and hip disorder. 3. Entitlement to service connection for a colon disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and L.C. ATTORNEY FOR THE BOARD P. A. Kultgen, Associate Counsel INTRODUCTION The veteran had active service from August 1976 to February 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 1996 rating decision from the Los Angeles, California, Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a low back condition, left leg and hip condition, and "stressed out colon." FINDINGS OF FACT 1. The veteran's low back disorder, manifested by disc protrusion at L5-S1, posterior displacement of the right S1 nerve root, diffuse disc bulges at L4-5, L3-4, and L2-3 and radiation of pain and numbness through the left hip and left lower extremity, was incurred during her active military service. 2. The record contains no evidence of a left leg and/or hip disability, separate from the radiating pain and numbness due to the low back disorder. 3. The record contains evidence of a current diagnosis of colon cancer. 4. The record contains evidence of a nexus between the veteran's colon cancer and the trauma to her back, incurred during service. CONCLUSIONS OF LAW 1. The veteran's low back disorder, manifested by disc protrusion at L5-S1, posterior displacement of the right S1 nerve root, diffuse disc bulges at L4-5, L3-4, and L2-3 and radiation of pain and numbness through the left hip and left lower extremity, was incurred in or aggravated by her active military service. 38 U.S.C.A. §§ 1131, 5107(b) (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of entitlement to service connection for a left leg and/or hip disorder (separate from that granted service connection above) is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for a colon disorder 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 FINDINGS AND CONCLUSIONS I. Factual Background On a report of medical history, completed at the time of service enlistment examination in June 1976, the veteran reported a history of cramps in her legs and mild indigestion. In September 1976, the veteran reported pain in her back of one week's duration, with no reported back injury. She noted left hip and leg numbness. An assessment of lower back strain was reported. In November 1976, the veteran reported nausea and vomiting blood. Tenderness of the back to deep palpation was noted. An assessment of gastroenteritis was noted. In November 1976, the veteran reported left leg numbness with tenderness to palpation. The veteran reported that she had fallen down stairs three days previous. An impression of sciatic nerve contusion was noted. One week later, continued tenderness to palpation was noted with an impression of resolving sciatic nerve contusion. A report of medical history, completed at service discharge in January 1977, noted complaints of frequent indigestion and lameness, with no reported history of recurrent back pain. The examiner noted that the veteran's indigestion was treated with medication and was not significant. Lumbosacral spine X-ray examination in December 1993 was normal. An abdominal series was conducted in February 1994 due to complaints of chronic diarrhea. The examination was normal. A barium enema was administered in April 1994 following complaints of chronic left lower quadrant abdominal pain. There were no definite intrinsic or extrinsic lesions of the colon on examination. Abdominal ultrasound in April 1994 was normal. In October 1995, the veteran filed an initial claim for VA benefits for service connection for lower back pain, after falling down a flight of stairs, for left leg and hip numbness and nerve pain, and for development of a "stressed out colon" as secondary to lower back pain. Under cover letter dated in October 1995, Dr. D.L.T. submitted records of chiropractic treatment for left shoulder, left hip, left leg, and low back pain. By letter, dated in August 1996, D.I., M.D., noted complaints of left lower back pain with radiation in to the left hip and left leg with occasional numbness. The veteran provided a history of back pain for twenty years since a fall down some stairs during military service. X-ray examination of the lumbar spine was negative. Following physical examination, Dr. D.I. stated that the veteran had symptoms of ongoing and increasing left sciatica and recommended electromyography of the back and lower extremities. Electromyography of both lower extremities and lumbosacral region in August 1996 was normal. There was no electro-physiological evidence of radiculopathic changes at that time. By letter dated in September 1996, Dr. D.I. stated that the veteran reported an injury twenty years previous during military service. The veteran reported that she had been gradually getting worse. By letter, dated in December 1998, W.N., M.D. stated that following her injury, due to a fall during service, the veteran was misdiagnosed and returned to duty while her spine remained unstable. Dr. W.N. stated that the original injury suffered by the veteran during service was the same as that confirmed by current magnetic resonance imaging (MRI). MRI testing in December 1998 showed posterolateral disc protrusion at L5-S1 with posterior displacement of the right S1 nerve root, diffuse disc bulges at L4-5, L3-4, and L2-3. Dr. R.L.A. further noted that the "blood in stool" noted during service, could easily have been from the sacrum injury to the bowel during the fall. By letter, dated in December 1998, R.L.A., D.C., stated that he had treated the veteran, on and off, since October 1995 for low back pain with radiation of pain and numbness down the left leg. The veteran reported that the pain began on November 26, 1976, following a fall down some stairs. Dr. R.L.A. noted review of the service medical records with diagnosis of sciatic nerve contusion. Dr. R.L.A. further noted that MRI in December 1996 showed disc protrusion at L5- S1. Dr. R.L.A. concluded that the veteran's low back pain and left leg pain and numbness were caused by her fall in November 1976. Dr. R.L.A. noted that no tests were performed during service to rule out a disc injury and the veteran continued to have symptoms off and on since the initial injury. At a hearing before the undersigned in November 1999, the veteran testified that she fell down a flight of stairs during service in 1976. She stated that she was placed on light duty, given crutches, and did not have to march for two-to-three weeks. Transcript, p. 4. She reported that she had no accidents, illnesses or trauma to her back since discharge from service. The veteran stated that she had been diagnosed with sciatica, severe herniated disc and colon cancer. Transcript, p. 5. She testified that she did not receive immediate medical care for her back complaints following discharge from service, as she did not have medical insurance. Transcript, p. 6. L.C., an acquaintance of the veteran, testified that she had known the veteran for approximately four years, and had to assist her on numerous occasions with grocery shopping or with the veteran's children. Transcript, p. 7. The veteran reported that she was first treated following discharge from service, as a military dependent in Guam, for her back condition in 1978 or 1979. Transcript, p. 8. She further reported treatment for her back condition in "Lancaster" at the county hospital. Transcript, p. 9. The veteran testified that she experienced numbness and occasional popping, locking, and clicking sensations in her left hip. Transcript, p. 10. She reported radiating pain from her back down her left leg into her foot. Transcript, pp. 11-12. The veteran testified that she was treated for blood in her stool following the fall during service and reported that she experienced constipation as well. Transcript, p. 13. She stated that she was diagnosed with colon cancer in October 1998. Transcript, p. 13. She noted that the stress of constant pain and lack of bowel functioning could definitely contribute to her colon cancer. Transcript, p. 14. She reported that Dr. R.L.A. stated that her back condition could be aggravating the colon or the colon condition could be aggravating the back condition. Transcript, p. 15. By letter, received in January 2000, Dr. W.N. stated that the trauma to the veteran's back, incurred during military service, could have caused and contributed to her colon cancer. II. Analysis Service Connection Generally Service connection may be established where the evidence demonstrates that an injury or disease resulting in disability was contracted in the line of duty coincident with military service, or if pre-existing such service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). When a disability is not initially manifested during service or within an applicable presumptive period, service connection may nevertheless be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in or aggravated by service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d). The threshold question to be answered in the veteran's appeal is whether she has presented evidence of a well-grounded claim. Under the law, a person who submits a claim for benefits shall have 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); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). A claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, the application for service connection must fail, and there is no further duty to assist the veteran in the development of her claim. 38 U.S.C.A. § 5107, Murphy, 1 Vet. App. 78 (1990). The United States Court of Appeals for the Federal Circuit held that, "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 [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 v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) quoting Epps v. Brown, 9 Vet. App. 341, 343-344 (1996); see 38 C.F.R. §§ 3.303, 3.307, 3.309; Caluza v. Brown, 7 Vet. App. 498, 506 (1995). For the purpose of determining whether a claim is well grounded, the credibility of the evidence is presumed. See Robinette v. Brown, 8 Vet. App. 69, 75 (1995). Alternatively, the second and third elements may be satisfied under 38 C.F.R. § 3.303(b) (1999) by: a) Evidence that a condition was "noted" during service or during an applicable presumption period; b) Evidence showing post- service continuity of symptomatology; and c) Medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495- 497 (1997). Service Connection for a Low Back Disorder The veteran has submitted evidence of a current low back disorder with radiation down the left leg. In December 1998, Dr. W.N. noted disc protrusion at L5-S1, displacement of the right S1 nerve root, and diffuse disc bulges at L4-5, L3-4, and L2-3. The record notes repeated complaints of lower back pain with radiation down the left lower extremity. Complaints of back pain with radiation down the left leg were noted in service in September 1976 and again in November 1976 following a fall down some stairs. The veteran has reported a continuity of symptomatology, increasing over time, of lower back pain with radiation down the left leg, since the in-service injury. Dr. W.N. stated that the original injury suffered by the veteran during service was the same as that confirmed by current MRI. Dr. R.L.A., who noted review of the veteran's service medical records, indicated that the veteran's current lower back pain and left leg pain and numbness were caused by her fall in November 1976. Based on the service medical records, the veteran's statements, and the statements of Drs. W.N. and R.L.A., the Board finds that the veteran's claim for service connection for a low back disability, including radiation down the left extremity, is well grounded. 38 U.S.C.A. §5107(a) (West 1991). The VA has a duty to assist the veteran in the development of all facts pertinent to her claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1999). The claims folder contains all available service medical records. Although, the veteran has identified treatment for her back condition at a military facility in Guam and in "Lancaster" at the county hospital following discharge, the Board finds that obtaining this evidence is not necessary for the Board to proceed with a decision in this appeal. It appears that all necessary development has been completed, and the VA has satisfied its duty to assist the veteran under these circumstances. 38 U.S.C.A. § 5107(a). The veteran has reported that she has had increasing lower back pain with radiation down the left leg since the initial fall during service in November 1976. Although the record contains no evidence of treatment from the date of discharge in February 1977 until December 1993, the record does contain the medical opinions of a medical doctor and a chiropractor, indicating that the veteran's current disability is a result of her November 1976 fall, with diagnosis of sciatic nerve contusion. The Board notes that the veteran's chiropractor had reviewed the service medical records and indicated that proper testing had not been conducted at that time to properly diagnose the veteran's condition. In addition, the chiropractor noted that normal X-ray examinations performed since service would not show the kind of disc injury from which the veteran suffers. The record contains no competent medical evidence contradicting the conclusions of Drs. W.N. and R.L.A. Therefore, the Board finds that the evidence does not preponderate against a finding that the veteran's current low back disorder, including radiation down the left hip and lower extremity, is a result of the November 1976 injury during service. Service Connection for Left Leg and Hip Disorder The Board notes that at the November 1999 hearing, the veteran appeared to indicate that she had no other disability of her left leg and hip, besides the radiating pain from the back injury, for which service connection has been granted above. The Board further notes that the record contains no diagnosis of a left leg or hip disorder, other than the radiating numbness and pain as a result of the back injury. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). There is no present disability, other than that already granted service connection, and no additional grant of a service-connected disability is warranted. Service Connection for a Colon Disorder The record contains notation of a current diagnosis of colon cancer. At the November 1999 hearing, the veteran reported that she had been diagnosed with colon cancer in October 1998. The statement of Dr. W.N. in January 2000 noted that the veteran currently has colon cancer. The veteran's service medical records noted a single incident of nausea and vomiting blood in November 1976. Mild indigestion was noted on service entrance examination in June 1976 and indigestion treated with medication was noted on report of medical history at service discharge in January 1977. No abnormalities of the colon were reported. As indicated above, the Board has granted service connection for residuals of the veteran's in-service back injury, including lower back pain and radiation through the left hip and left lower extremity. The veteran contends that this back injury is the cause of her colon disorder as well. Further, the record contains competent medical evidence providing a nexus between the veteran's current diagnosis of colon cancer and her November 1976 back injury. In December 1998, Dr. W.N. stated that the veteran's fall could easily have caused the "blood in stool," noted during service. Further, in January 2000, Dr. W.N. that the back trauma could have caused or contributed to the veteran's colon cancer. The degree of medical certainty that is necessary for a medical opinion, sufficient to establish a plausible medical nexus, has been repeatedly discussed by the Court, with no clear picture resulting. See Hicks v. West, 12 Vet. App. 86, 90-91 (1998) (discussing previous court findings regarding syntax necessary to establish medical nexus). The Court has recognized that the determination, of what is a speculative opinion, is fact specific. Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board finds that the combined opinions of Dr. W.N. exceed that of a purely speculative opinion, as discussed in Bloom. Based on the service medical records, the veteran's statements, and the opinions of Dr. W.N., the Board finds that the veteran's claim for service connection for a colon disorder (colon cancer) is well grounded. 38 U.S.C.A. §5107(a) (West 1991). The VA has a duty to assist the veteran in the development of all facts pertinent to her claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.103(a) (1999). The Board finds that further development is necessary to meet this duty and such development is ordered in the remand portion of this decision. ORDER Entitlement to service connection for a low back disorder, manifested by sciatica through the left hip and left lower extremity, is granted. Entitlement to service connection for a discrete left leg and hip disorder, aside from that granted above, is denied. The claim of entitlement to service connection for a colon disorder is well grounded. To this extent, the appeal is granted. REMAND Because the claim of entitlement to service connection for a colon disorder is well grounded, VA has a duty to assist the appellant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED to the regional office (RO) for the following development: 1. The RO should request that the veteran identify all medical care providers who treated her for colon cancer or any colon disorder since her discharge from active service. After securing the necessary release, the RO should obtain these records. 2. The RO should arrange for an examination of the veteran by an appropriate VA specialist for the purpose of ascertaining the current nature, extent of severity, and etiology of the veteran's colon condition, to include colon cancer. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. The examiner should perform any testing necessary, which is not medically contraindicated, to provide an assessment of the veteran's condition. The examiner should express an opinion as to whether the veteran's current colon disorder, to include colon cancer, is due to or was aggravated by any incident of service, including the 1976 fall and resultant service-connected back disability. 3. The RO should carefully review the examination report to ensure that it is in full compliance with this remand, including all of the requested findings and opinions. If not, the report should be returned to the examiner for corrective action. 4. The RO should then adjudicate the claim for service connection for a colon disorder, including colon cancer. If any claim remains denied, the veteran should be furnished with a supplemental statement of the case which summarizes the pertinent evidence, fully cites any applicable legal provisions not previously provided, and reflects detailed reasons and bases for the decision. The veteran should then be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The veteran need take no action until she is notified. The veteran is hereby notified that it is her 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. § 3.655 (1999). 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. John E. Ormond, Jr. Member, Board of Veterans' Appeals