Citation Nr: 0002848 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 97-33 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a right eye disability. 3. Entitlement to service connection for heart palpitations. 4. Entitlement to service connection for right testicular pain. ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from August 1974 to December 1994. These matters came to the Board of Veterans' Appeals (Board) from an April 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, which, in pertinent part, denied the claims of service connection for a right shoulder disability, a right eye disability, heart palpitations, and right testicular pain. A notice of disagreement was received in August 1997, and a statement of the case was issued that September. The veteran's substantive appeal, which included a request for a hearing before a member of the travel Board, was received in November 1997. A hearing was scheduled for August 1999, but the veteran failed to appear. The issue of service connection for right testicular pain will be addressed in both the main body of this decision and in the REMAND follownig the ORDER. The veteran's substantive appeal also reflected his disagreement with the ratings assigned for his lumbar spine and right hip disabilities. It is noted that in an April 1998 decision, the RO granted an increased rating of 10 percent for both disabilities. A few months earlier, in December 1997, a statement of the case was issued regarding the right hip disability, but not the lumbar spine matter. The veteran never filed a substantive appeal regarding the rating of the right hip; therefore, the matter is not in appellate status. See 38 C.F.R. § 20.200 (1999). However, the claim of a higher initial rating for the lumbar spine disability is pending since 38 C.F.R. § 19.26 requires the issuance of a statement of the case, and the 10 percent evaluation is not the maximum rating available for this disability. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, this issue will be remanded to the RO, rather than referred. Manlincon v. West, 12 Vet. App. 238 (1999). FINDINGS OF FACT 1. There is no competent medical evidence of a current right shoulder disability. 2. There is no competent medical evidence demonstrating a nexus between a corneal abrasion sustained during service and current findings related to the right eye. 3. There is no competent medical evidence demonstrating current findings or the occurrence of heart palpitations. 4. There is competent medical evidence of a current disability that produces right testicular pain, which is or resembles neuroma formation/nerve damage. 5. There is evidence that, both during and after service, the veteran has experienced right testicular pain since undergoing a vasectomy in 1994, a procedure that was complicated by bleeding. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of service connection for a right shoulder disability. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran has not submitted a well-grounded claim of service connection for a right eye disability. 38 U.S.C.A. § 5107(a) (West 1991). 3. The veteran has not submitted a well-grounded claim of service connection for heart palpitations. 38 U.S.C.A. § 5107(a) (West 1991). 4. The claim of entitlement to service connection for right testicular pain 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 Under applicable criteria, service connection will be granted for a disability resulting from personal injury suffered or disease incurred or aggravated during service. 38 U.S.C.A. §§ 1110,1131 (West 1991). If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (1999). Service connection may also be granted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Entitlement to Service Connection for a Right Shoulder Disability, Right Eye Disability, and Heart Palpitations A claimant for benefits under a law administered by the Secretary of the Department of Veterans Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a) (West 1991). Thus, the threshold question is whether the veteran has presented evidence of well-grounded claims under 38 U.S.C.A. § 5107(a) for service connection for right shoulder and right eye disabilities, and heart palpitations. There must be more than a mere allegation; a claimant must submit evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990), Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). If he has not, his appeal must fail and there is no duty to assist him in the development of facts pertinent to that claim. 38 U.S.C.A. § 5107(a) (West 1991). For a claim of service connection to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). The nexus requirement may be satisfied by a presumption that certain diseases manifesting themselves within certain prescribed periods are related to service. Caluza v. Brown, 7 Vet. App. 498 (1995). As explained below, the Board finds that these claims are not well grounded. Presuming the truthfulness of the evidence for the purpose of determining whether this claim is well grounded, the Board notes that the record on appeal includes the veteran's service and post service medical records, and VA examination reports. Right Shoulder In this case, the examination and medical history reports dated in 1978 and 1981 are negative with regard to complaints, findings, or diagnoses related to a right shoulder condition. When examined in 1992, the veteran reported a history of swollen or painful joints, but the medical examination was negative regarding the right shoulder. A May 1994 service medical record reflects a report of a long history of right sided knee, ankle, shoulder and hip pain related to a motor vehicle accident and scoliosis. At the time of his retirement examination in November 1994, the veteran reported a medical history that included swollen or painful joints, but the examination report does not reflect any findings related to the right shoulder. Although there was mention of right shoulder pain during service and the veteran reported an injury to the shoulder in 1981 at the time of his VA examination in 1997, the post- service records do not show that there is a current right shoulder disability. On VA examination of February 1997, the veteran reported that he injured the right shoulder in 1981 while lifting a weight and that the condition subsequently improved. There were no sequelae at the time of the examination, and he denied any problems with the right shoulder joint. When examined in February 1998, the veteran reported complaints of right shoulder pain precipitated by repetitive motion and occurring mostly in the mid-acromioclavicular joint area. He did not give a history of trauma to the right shoulder. The examination revealed mild pain in abduction above the shoulder and when lifting his arms above his shoulders. The examiner initially reported an impression of right shoulder pain and suspected degenerative joint disease/arthritis. After taking x-rays, the examiner noted that they were unremarkable and showed no evidence of any degenerative joint disease. Other than complaints of mild pain, there is not a diagnosed condition with respect to the right shoulder, and the veteran did indicate that the injury in 1981 resolved and that there were no sequelae. In the case Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999), the United States Court of Appeals for Veterans Claims (Court) made a distinction between the consideration of pain as it pertains to the rating of a service-connected disability and the consideration of pain as a disability for which service connection may be granted. Essentially, the Court held that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. That is the case here, therefore the first requirement for a well- grounded claim has not been met since a right shoulder condition has not been diagnosed. Given the complaints of right shoulder pain, it appears that his claim should be processed as one for compensation for undiagnosed illnesses. However, the veteran has not alleged, nor do the service records indicate that he is a "Persian Gulf veteran" as defined at 38 C.F.R. § 3.317(d). As such, consideration of his right shoulder pain as an undiagnosed illness upon which service connection may be granted, is not warranted. The Court has held that where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The assertions of a lay party on matters of medical causation of a disease or disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet. App. 211 (1993). Therefore, absent a diagnosed condition, the veteran's bare assertions do not constitute competent medical evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Right Eye In this case, the first requirement for a well-grounded claim has been met. The post-service records reflect a finding of presbyopia in July 1996. Also, the VA treatment records show that in February 1996, the veteran was seen for complaints of decreased vision and tear formation of the right eye, and his history of a trauma to the eye in 1992 was noted. It is noted that the VA examination report of February 1998 reflects a finding of refractive error of the left and right eyes. However, under 38 C.F.R. § 3.303(c), refractive error is not a disease or injury within the meaning of the applicable regulation. Overall, given the VA records of 1996, there is evidence of a current disability. As far as the second requirement for a well-grounded claim, the evidence does show that the veteran injured his right eye during service, and was treated for viral conjunctivitis in October 1992. The service medical records show that in July 1992, the veteran had been poked in the eye and the examiner noted that he had photophobia and decreased visual acuity and pain to the eye. It was mentioned that he had an infected corneal abrasion as well as iritis. Follow-up reports, dated that August, show that the condition was resolving. At the time of his retirement examination in November 1994, the veteran's distant vision was 20/40 for the right eye and 20/50 for the left eye, and his corrected distant vision was 20/15 bilaterally. Although the evidence of record reflects a current right eye disability and the incurrence of an injury to the eye during service, the Board finds that the evidence is lacking with regard to the required nexus between the inservice injury and the current disability. On VA examination of February 1997, the examiner noted that there was a history of right eye corneal injury and possibly no sequelae. On VA examination of February 1998, it was noted that the veteran was treated for a corneal abrasion of the right eye in 1992 and had been wearing glasses since that time. The need for ocular surgery was not indicated at that time, but the veteran felt that he has an astigmatism resulting from the incident in 1992. He reported that he was seen two months prior and was told that he had mild cataracts and some sort of torn tissue, but he was unsure of what it was. He denied any acute visual changes, including flashes, floaters, curtains or shadows. He also denied a pediatric history of strabismus, nystagmus or amblyopia. He denied eye pain or diplopia. The examiner reported that the veteran has a mild refractive error with astigmatism in the left greater than the right, even though it was indicated that the right eye was injured in 1992. The examiner also determined that there was no evidence of ocular sequelae from any trauma in either eye. Normally, where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including the veteran's solitary testimony may constitute sufficient evidence. Grottveit v. Brown, 5 Vet. App. 91 (1993). Therefore, the veteran's statements are sufficient to show that he noticed changes in the right eye since it was injured in 1992, and that he has ongoing problems with his vision. As noted above, the Court has held that where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to render a medical opinion. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). The assertions of a lay party on matters of medical causation of a disease or disability are not sufficient to make a claim well grounded. Moray v. Brown, 5 Vet. App. 211 (1993). Here, the medical evidence of record does not include opinions which attribute any of the current conditions to the eye injury in service, or any aspect of the veteran's service. The findings made at the time of the veteran's retirement examination in November 1994 and the VA treatment records of 1996, do not reflect opinions that the findings and diagnoses made at those times were related to the injury in 1992, or any other condition treated during service. In fact, the VA examiner determined that there was no evidence of ocular sequelae from trauma in either eye. Therefore, the veteran's bare assertions that his current problems with the right eye are related to the 1992 injury during service do not constitute competent medical evidence of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). Heart Palpitations Service medical records dated in 1992 reflect findings of heart palpitations and chest pain, and it was noted that the veteran suffered from gastroesophageal reflux. The history of palpitations was noted at the time of his follow-up appointments in 1993, and the ECGs taken in 1994 and 1993 were noted to be abnormal. The November 1994 retirement examination and medical history reports were negative with regard to palpitations. Although the service medical records show that the veteran had suffered from palpitations during service, the VA examination reports indicate that there is not a current disability at this time. At the time of the VA examination in February 1997, the examiner reported an impression of chest pain secondary to esophagitis. When examined in February 1998, the examiner noted the history of palpitations which the veteran started to experience in 1992. Following a gastrointestinal work-up and treatment, he has not had any palpitations since 1993. At that time, he was able to run up to one mile every two to three days without any significant palpitations, chest pain, shortness of breath, presyncope or syncope. He denied any history of leg swelling. In the reported impression, the examiner noted that the veteran had a history of palpitations which were associated with symptoms at one time. He reported that an exercise was done in 1992 and he was told that it was normal. The examiner requested the records from 1992 for further review, and noted that the veteran had a significant history of gastrointestinal pathology with a history of hiatal hernia which was associated with the symptoms as well. Therefore, the examiner concluded that it would be important to look at the records which document the correlation of the symptoms of palpitations with his upper gastrointestinal symptoms. The examiner noted once more that the veteran stated that he has not had any palpitations since 1993. From the evidence of record, it is clear that at one point during the veteran's active period of service, he experienced palpitations. However, the condition apparently resolved since the veteran reported that he had not experienced any further palpitations since 1993, and is able to run up to one mile every two to three days without any significant palpitations, chest pain, shortness of breath, presyncope or syncope. Therefore, the first requirement for a well- grounded claim has not been met since the veteran currently does not suffer from the claimed condition, heart palpitations. Conclusion Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) (West 1991) as the lay evidence submitted does not cross the threshold of mere allegation. Thus, the claims are not well grounded, and the Board does not have jurisdiction to adjudicate them. Boeck v. Brown, 6 Vet. App. 14 (1993). Accordingly, the veteran cannot invoke the VA's duty to assist in the development of the claims under 38 U.S.C.A. § 5107(a) (West 1991). Grivois v. Brown, 6 Vet. App. 136 (1994). Although, where claims are not well grounded VA, does not have a statutory duty to assist a claimant in developing the claims, VA may be obliged under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete the application for benefits. This obligation depends on the particular facts and circumstances of the case-including the extent to which the Secretary of VA has advised the claimant of the evidence necessary to be submitted with the claim. Robinette v. Brown, 8 Vet. App. 69 (1995). Here, the RO fulfilled its obligation under 38 U.S.C.A. § 5103(a) (West 1991) in the September 1997 statement of the case. Furthermore, by this decision, the Board is informing the veteran of the evidence that is lacking concerning these claims and necessary to make them well grounded-to warrant further consideration on the full merits. He must support his claims with medical evidence-not just allegations- showing he currently has a right shoulder disability, and that he experiences heart palpitations, and causally linking these conditions, and his right eye condition, to his service in the military. Service Connection for Right Testicular Pain The Board finds that the veteran's claim of service connection for right testicular pain is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, the claim presented is plausible. Therefore, VA has a duty to assist a claimant in the development of facts pertinent to his or her claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999). From a careful review of the evidence in this case, the Board has determined that there is additional development that must be completed by the RO in order to fulfill this statutory duty prior to appellate review of the veteran's claim, which will be addressed in the REMAND portion of this decision. The service medical records show that in 1994, the veteran elected to undergo a vasectomy which was complicated by bleeding on the right. The bleeding was controlled with coagulation. The follow-up treatment records reflect the veteran's complaints of right testicle pain. In one follow- up report, it was noted that he had post-vasectomy epididymitis, and later it was indicated that he had a right scrotal hematoma. The veteran was afforded VA examinations in February 1997 and 1998. He relayed to the examiners that he experiences ongoing right testicular pain of a mild degree, which is exacerbated by activities such as jogging and intercourse. Occasionally, the pain radiates to the groin area. In 1997, the examiner reported an impression of history of vasectomy with history of injury to right testicle, with episodic right testicular pain. In February 1998, the examiner reported an impression of testicular pain most probably related to surgery and likely neuroma formation/nerve damage. The examiner further noted that there was no evidence of herniation or tortion of the testicle. Here, the evidence clearly shows that the veteran has experienced right testicular pain since he underwent a vasectomy during service. This has been documented in the service medical records and the VA examination reports. Essentially, the VA examiner's impression reported in 1998 indicates that the current complaints of pain are related to the surgery in 1994, and that there is a neurological condition of some sort. In the examination report, the examiner commented that the remainder of the neurological examination was intact and that the condition was likely a neuroma formation/nerve damage. Therefore, the evidence at hand demonstrates that the claim is well grounded. ORDER The claim of entitlement to service connection for a right shoulder disability is not well grounded, and the appeal is denied. The claim of entitlement to service connection for a right eye disability is not well grounded, and the appeal is denied. The claim of entitlement to service connection for heart palpitations is not well grounded, and the appeal is denied. The claim for service connection for right testicular pain is well grounded; to this extent only, the appeal is granted, subject to the further development directed below. REMAND Service Connection for Right Testicular Pain Since the Board has found this claim to be well grounded, VA has a duty to assist, which includes conducting a thorough and contemporaneous medical examination. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). It is clear that, during service, the veteran experienced right testicular pain following a vasectomy complicated by bleeding, and that he continues to suffer from such pain. At this point, however, it is not absolutely clear what condition he has-given the diagnosis indicated by the VA examiner in 1998, which suggests some sort of a neurological disability. The Board points out that, questions involving the presence of disease, requires diagnostic skills and is only within the purview of medical experts. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore, another VA examination is necessary to make these determinations. As noted in the Introduction, the claim for an increased rating for a lumbar spine disability has been technically pending since the veteran's notice of disagreement in December 1997. He is entitled to a statement of the case on this issue, and he must thereafter "perfect" his appeal by the timely submission of a substantive appeal or equivalent statement. See Manlincon, supra. Accordingly, these issues are remanded to the RO for the following actions: 1. The RO should obtain records of VA and non-VA treatment the veteran has received for his right testicular pain since his separation from service. The necessary authorization should be obtained in order to secure private medical records. After all the pertinent records have been obtained, they should be associated with the claims folder. 2. The veteran should be scheduled for a VA examination for the purpose of ascertaining the nature and severity of his right testicular pain-including any neurological conditions associated therewith. If it is not medically feasible to make such a determination, the examiner should clearly state that on the written report. The examiner should integrate the previous examination findings and diagnoses with current findings to obtain an accurate picture of the disability at issue. All special studies and tests, which, in the opinion of the examiner, are reasonably necessary to complete the examination and prepare the medical opinions, should be accomplished. The examiner is requested to indicate the reasons for his or her opinion. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. 3. The RO should readjudicate the issue of service connection for right testicular pain. If the determination remains adverse to the veteran, he and his representative should be provided a supplemental statement of the case that includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his representative should be afforded the applicable time to respond. 4. The RO should issue a statement of the case addressing the appropriateness of the initial rating assigned for the service-connected lumbar spine disability-including a discussion of whether the assignment of a "staged rating" is warranted for this disability. See Fenderson v. West, 12 Vet. App. 119 (1999). The veteran should be notified that, to "perfect" an appeal of this issue, he must thereafter submit a timely substantive appeal or equivalent statement (e.g., a VA Form 9). Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration on all issues for which an appeal has been perfected. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. 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. KEITH W. ALLEN Acting Member, Board of Veterans' Appeals