Citation Nr: 0002345 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 96-41 668 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for residuals of a right ankle injury. 4. Entitlement to service connection for a gallstone disorder. 5. Entitlement to service connection for insomnia. 6. Entitlement to service connection for chronic indigestion. 7. Entitlement to an increased (compensable) rating for a left varicocele. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from November 1970 to November 1973. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 1996 decision by the RO. This case was previously before the Board in February 1999, when it was remanded to the RO for additional development. The case was thereafter returned to the Board in November 1999. In his April 1996 application for benefits, the veteran raised the issue of entitlement to service connection for pseudofolliculitis. That issue has not been adjudicated by the RO, and is therefore referred to the RO for appropriate action. (The claims of service connection for disorders of the low back and right ankle, and the claim for an increased (compensable) rating for a left varicocele are addressed in the REMAND portion of this decision.) FINDINGS OF FACT 1. No competent evidence has been received to link the veteran's diabetes mellitus to service, to continued symptoms since service, or to an already service-connected disability. Nor has competent evidence been received to show that diabetes mellitus became manifest to a degree of 10 percent or more during the one-year period following the veteran's discharge from service. 2. Competent evidence has been received which indicates that the veteran has a current low back disorder, and which appears to suggest that the disorder could be related to his period of active service. 3. Competent evidence has been received which indicates that the veteran may have a current right ankle disorder, and which appears to suggest that the disorder could be related to his period of active service. 4. No competent evidence has been received to show that the veteran currently has a gallstone disorder, or residuals thereof. 5. No competent evidence has been received to link the veteran's current complaints of insomnia to service, to continued symptoms since service, or to an already service- connected disability. 6. No competent evidence has been received to link the veteran's difficulties with chronic indigestion to service, to continued symptoms since service, or to an already service-connected disability. CONCLUSIONS OF LAW 1. The claim of service connection for diabetes mellitus is not well grounded. 38 U.S.C.A. §§ 1110, 1112, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. The claim of service connection for a low back disorder is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 3. The claim of service connection for residuals of a right ankle injury is well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 4. The claim of service connection for a gallstone disorder is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 5. The claim of service connection for insomnia is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 6. The claim of service connection for chronic indigestion is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that service connection should be granted for diabetes mellitus, a low back disorder, a right ankle disorder, a gallstone disorder, insomnia, and chronic indigestion. He maintains that these conditions can be traced to his period of active military service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. §§ 1110 (West 1991); 38 C.F.R. §§ 3.303(a), 3.306 (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Morton v. West, 12 Vet. App. 477, 485-86 (1999). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. at 495. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has held that evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus, or link, between the in-service injury or disease and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). This third element may also be established by the use of statutory presumptions. See 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307, 3.309 (1999). In the present case, the Board finds that the claims of service connection for a low back disorder and residuals of a right ankle injury are well grounded. When the veteran was examined for VA purposes in April 1999, he was given diagnoses of "[c]hronic recurrent low back pain[,] myofascial syndrome, possibly secondary to underlying arthritis" and "[p]ossible chronic right ankle strain with patellofibular ligament dominant strain." Moreover, when asked to comment upon the relationship between these conditions and the veteran's service, the examiner stated, in part, "Regarding the patient's low back disorder, although there are no details available in the C-file, it could be causally related to the activities performed[,] and the same thing would apply to the right ankle injury." Because the record contains competent evidence which indicates that the veteran may have current disorders of the low back and right ankle, and which suggests that these disorders could be related to his period of active service, the Board finds that the requirements for a well grounded claim have been satisfied. See, e.g., Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Lathan v. Brown, 7 Vet. App. 359, 365-66 (1995); Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992) (physicians' statements to the effect that a claimed disability "could be" or is "possibly" related to service or a service-connected disability held sufficient to make a claim of service connection well grounded). Consequently, to this extent, the appeal is granted. As to the claim of service connection for diabetes mellitus, however, the Board finds that that claim is not well grounded. Although the veteran's service records show that he reported symptoms in service which he claims are indicative of diabetes (such as urinary frequency), the record does not establish that diabetes was diagnosed during his period of active duty. Nor has competent evidence been received to show that diabetes mellitus became manifest to a degree of 10 percent or more during the one-year period following the veteran's discharge from service. 38 C.F.R. §§ 3.307, 3.309 (1999). Indeed, the available evidence shows that his endocrine system was found to be normal when he was examined for service separation in August 1973, and that diabetes was not diagnosed until several years after service, in 1979. No medical evidence has been received to link this later diagnosis to service, to continued symptoms since service, or to an already service-connected disability, and the veteran, as a layperson, is not competent to offer opinions on matters of medical causation. While a VA psychologist suggested in an April 1999 report that complaints of insomnia in service were "perhaps secondary to blood sugar abnormalities", the psychologist indicated that his opinion was contingent on obtaining a further medical opinion as to the prevalence of insomnia in diabetes. No such medical opinion was obtained, however, and the psychologist's opinion, standing alone, amounts to nothing more than a conclusion that insomnia in service "may or may not" have been indicative of concurrent blood sugar abnormalities and/or diabetes. That kind of opinion is too speculative to make a claim of service connection plausible. See, e.g., Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Consequently, for all these reasons, the Board finds that the claim of service connection for diabetes mellitus is not well grounded. The Board also finds that the claim of service connection for insomnia is not well grounded. Although the record shows that the veteran complained of trouble sleeping in service, and he has reported that he still has such difficulties from time to time, no competent evidence has been received to link his current complaints to service, to continued symptoms since service, or to an already service-connected disability. In the April 1999 psychological examination report, referenced above, the examining VA psychologist suggested that insomnia in service was "perhaps secondary to blood sugar abnormalities", and indicated that the veteran's continued and current complaints "may also be associated . . . with his diabetes." However, as noted previously, the psychologist indicated that his conclusions on these matters were contingent on obtaining a further medical opinion as to the prevalence of insomnia in diabetes. Because no such medical opinion was obtained, the Board finds, for reasons already discussed above, that the examiner's statements as to the relationship between insomnia and diabetes are too speculative to make the veteran's claim plausible. Moreover, to the extent that the April 1999 psychological report indicates that the veteran's difficulties with insomnia may be due to a psychiatric cause, the Board notes that the report appears to reflect that the psychiatric cause of insomnia in service ("primary insomnia") is different from the cause of his more recent sleep difficulties (long-term conditioning factors and/or depressive symptoms associated with an adjustment disorder). The Board therefore finds that the requirements for a well grounded claim have not been satisfied. The Board further finds that the claim of service connection for chronic indigestion is not well grounded. The record shows that the veteran complained of an upset stomach and occasional indigestion during service, and he has indicated that he continues to experience problems with indigestion. A review of the record reveals, however, that no competent evidence has been received to link his current complaints to a disorder attributable to service, to continued symptoms since service, or to an already service-connected disability. In the absence of such evidence, the claim of service connection for chronic indigestion cannot properly be considered well grounded. Finally, the Board finds that the claim of service connection for a gallstone disorder is not well grounded. This is so because no competent evidence has been received to show that the veteran currently has a gallstone disorder, or residuals thereof. When the veteran was examined for VA purposes in April 1999, it was specifically noted that an ultrasound of the abdomen was normal, with no evidence of gallstones or gallbladder wall abnormality. For a claim of service connection to be deemed plausible, there must be competent medical evidence in the record which demonstrates that the claimant currently has the disability for which service connection is claimed. See, e.g., Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 2019 (1999) ; Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). As discussed above, the Board has determined that the claims of service connection for diabetes mellitus, insomnia, chronic indigestion, and a gallstone disorder are not well grounded. Consequently, further action by the Board to enforce its February 1999 remand order with respect to these four claims is not required. See Roberts v. West, No. 97- 1993 (U.S. Vet. App. Nov. 19, 1999). ORDER The claims of service connection for diabetes mellitus, a gallstone disorder, insomnia, and chronic indigestion are not well grounded; the appeal of these claims is therefore denied. The claims of service connection for a low back disorder and residuals of a right ankle injury are well grounded; to this extent, the appeal is granted. REMAND As noted above, the Board has determined that the claims of service connection for a low back disorder and residuals of a right ankle injury are well grounded. The Board also finds that the claim for an increased (compensable) rating for a left varicocele is well grounded. See, e g., Arms v. West, 12 Vet. App. 188, 200 (1999) ("A claim for an increased rating is generally well grounded when an appellant indicates that he has suffered an increase in a service-connected disability."). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App 629, 631-32 (1992). Because the claims are well grounded, VA has a duty to assist the veteran in developing the facts pertinent to these three claims. 38 U.S.C.A. § 5107(a) (West 1991). When the Board remanded this case to the RO in February 1999, the Board requested, among other things, that the veteran be scheduled for a VA examination for purposes of assessing the presence, severity, and etiology of the claimed disorders of his low back and right ankle. The Board requested that the examiner(s) render an opinion as to whether it is at least as likely as not that the disabilities in question are causally related to the veteran's service, and asked that the examiner(s) provide a complete rationale for any opinion(s) expressed. The Board also requested that the veteran be scheduled for an examination to assess the nature and severity of disability associated with his service-connected left varicocele. It was specifically requested that the examining physician comment as to the presence and/or severity of symptoms such as urinary frequency, hesitancy, and obstructed voiding. Unfortunately, a review of the record reveals that the requested development has not been completed. Although the veteran underwent a VA examination of his low back and right ankle in April 1999, the examiner did not provide an opinion with regard to whether the veteran has disorders of the low back and/or right ankle that are "at least as likely as not" due to service. Rather, as noted previously, the examiner stated only that such disorders "could be causally related to the activities performed . . . ." Moreover, no substantive rationale for the examiner's opinion was provided. (Indeed, the examiner noted in one report that "there is no significant available information about the ankle injury or any mention of any chronicity of the ankle problems.") In addition, with regard to the claim for an increased (compensable) rating for a left varicocele, the record does not presently contain anything to demonstrate that an examination of that condition has been conducted since the time of the Board's February 1999 remand. The Court has held that if a claim is well grounded, and the Board remands the claim for further development, the Board's remand confers on the appellant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); Roberts v. West, No. 97-1993 (U.S. Vet. App. Nov. 19, 1999). Given those pronouncements, and the fact that the development sought by the Board in this case has not been completed, another remand is now required. 38 C.F.R. § 19.9 (1999). For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for his low back, right ankle, and left varicocele that has not already been made part of the record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). The RO should make an effort to ensure that all relevant records of VA treatment have been obtained for review. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. After the above development has been completed, the physician who examined the veteran's low back and right ankle in April 1999 should be asked to prepare a supplemental report. Specifically, the examiner should be asked to review the claims folder, including this remand, and provide an opinion as to whether the veteran currently has disorders of the low back and right ankle and, if so, whether it is at least as likely as not that the disorders in question are causally related to service. The examiner should provide a complete rationale for all opinions expressed. If the examiner who conducted the April 1999 examination is not available to prepare a supplemental report, the veteran should be scheduled for a new examination for purposes of obtaining the requested opinions. 3. The veteran should also be scheduled for an examination for purposes of assessing the nature and severity of his service-connected left varicocele. The examiner should review the claims folder prior to examining the veteran. All necessary testing should be conducted, and the results reported in detail. The examiner should identify what symptoms, if any, the veteran currently manifests, or has manifested in the recent past, that are attributable to a left varicocele. The examiner should specifically indicate whether there is any evidence of associated renal dysfunction, urinary leakage, urinary frequency, obstructed voiding, and/or urinary tract infections. If there is evidence of renal dysfunction, the examiner should indicate whether there is evidence of decreased function of the kidneys or other organ systems and, if so, whether the decrease in function is best described as slight, definite, or marked; whether regular dialysis is required; whether any noted renal dysfunction is causative of generalized poor health characterized by lethargy, weakness, anorexia, weight loss, and/or limitation of exertion, and whether the condition precludes more than sedentary activity; whether there is evidence of albuminuria and, if so, whether the albuminuria is constant or recurring; whether there is evidence of albumin with hyaline and granular casts or red blood cells; whether there is evidence of associated hypertension or a history of acute nephritis; whether there is evidence of edema and, if so, whether the edema is best described as slight, moderate, or severe, and whether it is constant or transient in nature; whether blood urea nitrogen (BUN) levels are less than 40, between 40 and 80, or more than 80mg%; and whether creatinine levels are less than 4, between 4 and 8, or more than 8mg%. If there is evidence of urinary leakage, the examiner should indicate whether the leakage requires the use of an appliance. The examiner should also indicate whether the condition requires the wearing of absorbent materials and, if so, how many times per day the materials must be changed. If there is evidence of urinary frequency, the examiner should report the duration of the daytime voiding interval. The examiner should also indicate how often the veteran awakens to void. If there is evidence of obstructed voiding, the examiner should indicate whether any noted obstructive symptomatology (including any hesitancy, slow or weak stream, or decreased force of stream) is best described as slight, moderate, or marked; whether there is evidence of stricture disease requiring periodic dilatation and, if so, how often dilatation is required; whether there is evidence of recurrent urinary tract infections secondary to obstruction; whether uroflowmetry reveals a peak flow rate less than 10cc/sec; whether post-void residuals are greater than 150cc; and whether there is evidence of urinary retention requiring intermittent or continuous catheterization. If there is evidence of urinary tract infections, the examiner should indicate whether there is evidence that such infections are recurrent and/or symptomatic; whether the infections are so severe as to require drainage/frequent hospitalization and, if so, the frequency with which such treatment is required; whether intensive management is required and, if so, whether it is required on a continuous or intermittent basis; and whether long- term drug therapy is necessary. 4. The RO should thereafter take adjudicatory action on the claims of service connection for disorders of the low back and right ankle, and the claim for an increased (compensable) rating for a left varicocele. If any benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs 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. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals