BVA9504319 DOCKET NO. 93-10 008 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for hepatitis. 2. Entitlement to service connection for residuals of a left mammoplasty. 3. Entitlement to an increased evaluation for residuals of cholecystectomy with chest pain, currently evaluated as 10 percent disabling. 4. Entitlement to a compensable evaluation for migraine headaches. 5. Entitlement to a compensable evaluation for lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.P. Reep, Associate Counsel INTRODUCTION The veteran served on active duty from November 1988 to October 1991. This matter came before the Board of Veterans' Appeals (the Board) on appeal from a September 1992 rating decision of the St. Louis, Missouri Regional Office (RO) of the Department of Veterans Affairs (VA), which, among other actions, awarded service connection for residuals of gall bladder removal, for which a ten percent rating was assigned, and awarded service connection for lumbosacral strain and migraine headaches, for which noncompensable ratings were assigned. Also in that decision, the RO denied service connection for hepatitis and residuals of a left mammoplasty. REMAND Under 38 C.F.R. § 3.306(b)(1) (1993) the usual effects of medical and surgical treatment in service, having the effect of ameliorating conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service. It would appear, from the RO's treatment of the veteran's claim for service connection for residuals of a left mammoplasty, that it was determined that the condition necessitating the mammoplasty--a disparately large left breast--pre-existed service. Indeed, a September 1989 report in the service medical records notes the veteran's history of a disparately large left breast following a softball injury at age 13. On the other hand, no such disparity was noted on the report of the veteran's August 1988 entrance physical examination. In that regard, we note that the United States Court of Veterans Appeals has recently held that, for defects that are not specifically noted at the time of entrance into service, a presumption of soundness attaches, and that presumption may only be rebutted by clear and unmistakable evidence that the defect existed prior to service. Crowe v. Brown, No. 93-550 (U.S. Vet.App. December 20, 1994). It is apparent from the ruling in Crowe that a notation of a history of a pre-existing injury, alone, does not constitute "clear and unmistakable evidence." In light of the foregoing, we find that certain defects in the record, discussed below, require additional development in this case. Service medical records contain pertinent reports and entries pre-dating the veteran's mammoplasty, as well as reports and entries reflecting pertinent post-surgical treatment. However, service medical records do not contain reports reflecting the actual mammoplasty, which was apparently conducted at Bethesda National Naval Medical Center in September 1990. Furthermore, although the veteran indicated on her June 1992 application for compensation that she received no civilian medical treatment (for her claimed disabilities) during service, an October 1990 entry in the service medical records indicates that she received post-surgical treatment for her left breast from a (private) family doctor in Missouri. No documentation reflecting such treatment is on file. In addition, the Board notes that, due to unavoidable delays resulting from additional development of the mammoplasty claim, the August 1992 VA examination may no longer be contemporaneous with regard to the three increased rating issues at bar. Consequently, the case is REMANDED to the RO for the following actions: 1. The RO should attempt to secure service medical records which document the veteran's September 1990 mammoplasty. Any records so obtained should be incorporated into the claims folder. 2. The RO should request that the veteran provide the name and address of the private physician that treated her in approximately September 1990. If the veteran provides such information, the RO should attempt to secure any pertinent treatment records from that physician. Any records so obtained should be incorporated into the claims folder. 3. The RO should also secure any and all pertinent, up-to-date VA and private treatment records for the disabilities at issue and add them to the claims folder. 4. After the development requested above has been accomplished, the RO should schedule appropriate VA examinations for the purpose of assessing the current status of all pertinent disabilities. Prior to conducting such examinations, the veteran's claims folder should be made available to the examiners for review. Specifically the appropriate examiner(s) should express an opinion as to whether there are any current residuals of hepatitis; whether, from a review of the medical evidence, it can be stated with any degree of certainty that the condition for which the mammoplasty was performed in service existed prior to service; and whether and to what degree the chest pain associated with the cholecystectomy produces functional impairment. It is also requested that, following a review of any treatment records and an interview with the veteran, the frequency and character of her migraine headaches be set forth. Finally, the appropriate examiner should describe in detail all disabling symptoms due to service-connected lumbosacral stain, distinguishing back complaints that are ascribable to other causes, and assess the veteran's functional loss due to this disability. It would be helpful to the Board if each examiner set forth adequate rationale to support the opinions reached. 5. The RO should then again consider the veteran's claims, under all applicable law and regulations, including 38 C.F.R. § 4.40 (1993). If any of the benefits sought on appeal remains adverse to the veteran, both she and her representative should be furnished with a supplemental statement of the case which contains an explanation of the RO's latest deliberations, and they should be afforded the opportunity to respond. The statement of the case should include a discussion of 38 C.F.R. § 3.306(b)(1) with regard to service connection for residuals of a left mammography. Then the case should be returned to the Board for further appellate consideration, if otherwise in order. The veteran need take no action until she is further notified by the RO. The purpose of this remand is to procure additional evidence. N. R. ROBIN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).