Citation Nr: 9909574 Decision Date: 04/06/99 Archive Date: 04/16/99 DOCKET NO. 94-24 922A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for post-operative residuals of pelvic relaxation with urinary stress incontinence, including a total hysterectomy and bilateral salpingo-oophorectomy, claimed secondary to service-connected chronic renal calculi with urinary tract infections. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD K. Conner, Associate Counsel INTRODUCTION The veteran had active naval service from August 1974 to March 1978. This matter comes to the Board of Veterans' Appeals (Board) from a January 1994 rating decision of the Department of Veterans Affairs (VA) Denver Regional Office (RO). In January 1999, the veteran testified at a Travel Board hearing at the RO. FINDINGS OF FACT 1. Pelvic relaxation with urinary stress incontinence were not clinically evident during the veteran's active service, and the record contains no competent (medical) evidence of a link between the post-service pelvic relaxation with urinary stress incontinence and her service or any incident occuring therein. 2. The record does not contain competent (medical) evidence that any post-operative residuals of pelvic relaxion with urinary stress incontinence is causally related to or aggravated by the veteran's service-connected disability, chronic renal calculi with urinary tract infections. CONCLUSION OF LAW The claim of service connection for post-operative residuals of pelvic relaxation with urinary stress incontinence, including a total hysterectomy and a bilateral salpingo- oophorectomy, is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records show a history of recurrent urinary tract infections resistant to various treatment regimens, including six ureteral instillations of silver nitrate. The records show that she underwent six silver nitrate treatments between November and December 1977, during which time she reportedly had no complaints related to the treatment. Due to continued symptoms, in January 1978, a cystogram and intravenous pyelogram (IVP) were performed and showed a normal bladder, as well as an apparent right renal calculus. Subsequent X-ray examination of the kidney, ureter, and bladder (KUB) confirmed findings of calculus in the right renal upper calyx. The veteran's treating physicians determined that the veteran's kidney stone was likely responsible for her recurrent urinary tract infections. As such, in February 1978, she was hospitalized and underwent a right nephrolithotomy. The veteran's post-operative course was reportedly uneventful. The diagnosis on discharge was right renal calculus with secondary urinary tract infections due to proteus and E. coli. On follow-up examinations, urinalyses were negative and she was reportedly "doing well." Her March 1978 military separation medical examination report is negative for pertinent abnormalities. The veteran reported a history of surgery for kidney stones and frequent or painful urination. The genitourinary system was found to be normal on examination and urinalysis was negative. Following her separation from service, in May 1978, the veteran filed a claim for VA compensation benefits. By July 1978 rating decision, the RO granted service connection for residuals of a post-operative right kidney stone with secondary urinary tract infection and assigned a noncompensable evaluation thereto, effective March 17, 1978, the day following the veteran's separation from active service. In an August 1978 letter, the veteran advised the RO that she had been receiving treatment for additional kidney stones. In support of her claim, the RO obtained VA outpatient treatment records showing that in May 1978, an IVP had revealed additional right kidney stones, but was otherwise normal. Additionally, at a September 1978 VA medical examination, the veteran reported that since her separation from service, she had had two urinary tract infections. The diagnoses were chronic recurrent urinary tract infections and recurrent renal calculi, with no evidence of current urinary tract infection or impaired renal function. By October 1978 rating decision, the RO assigned a 30 percent rating for chronic renal calculi with secondary urinary tract infections, effective from March 17, 1978. Subsequent outpatient treatment records show that in May 1979, the veteran underwent urological evaluation. A history of a right nephrolithotomy in February 1978 was noted. The veteran reported that since that time, she had continued to have urinary tract infections which had been treated with multiple antibiotics and silver nitrate installations. An IVP was performed and showed the surgical absence of the 12th rib, as well as several radio-opaque densities near the right upper pole of the kidneys. There was no obstruction of the ureter. On physical examination, the veteran denied current symptoms and reported that a recent urinalysis had shown no further infection. Because of the possibility of vesicourethral reflex causing infection stones and persistent infection, a voiding cysto-urethrogram was also performed and showed a normal bladder with no reflux. In light of these normal findings, the examiner concluded that it was doubtful that any surgical procedure could be performed in the near future which would help in the veteran's management. The impression was chronic urinary tract infection manifested by chronic cystitis and probable struvite stones in the right kidney. In August 1980, the veteran again underwent VA medical examination. She reported that since her separation from service, she had had 3 to 4 urinary tract infections, the last of which had been 5 months earlier. She also indicated that she had developed additional right kidney stones for which she had been offered additional surgery, but she had rejected that option. She indicated that she had taken no medication since her last urinary tract infection 5 months previously as she had become pregnant. On examination, a liver function test, as well as urinalysis and serum calcium test, were within normal limits. The diagnoses included right renal calculi, recurrent urinary tract infections, and intrauterine pregnancy. By October 1980 decision, the RO decreased the rating for the veteran's disability from 20 to 30 percent. She duly appealed the RO determination and by October 1981 decision, the Board found that she was not entitled to a rating in excess of 20 percent for chronic renal calculi with secondary urinary tract infections. On November 1982 VA medical examination, the veteran reported that since her last examination, she had had no inpatient treatment for kidney problems and had delivered two healthy children, most recently in October 1982. She stated that she had not taken suppressive antibiotics since she her most recent pregnancy in March 1982. Physical examination showed a normal external female genitalia, rectum and abdomen. The right flank showed some costovertebral angle tenderness. The kidneys were nonpalpable. An excretory urography showed 3 small calcific densities in the right kidney. Also noted was a mild dilation of the right ureter which was determined to be secondary to pregnancy. The diagnoses were urinary tract infection and status post right pyelolithotomy and resection of the distal 12th rib with residuals of renal calculi within the papillae, and well healed cicatrix. By January 1983 rating decision, the RO continued the 20 percent rating for the veteran's service-connected genitourinary disability. Additional outpatient treatment records show that in February 1984, the veteran reported a dull pain in the right flank pain, but stated that she otherwise felt well. A history of kidney stones was noted. A urinalysis was unremarkable and a KUB showed no obvious stones. On follow-up in March 1984, she reported that still having dull pain, but was otherwise without complaints. The assessment was flank pain probably due to exercise program. In May 1984, she sought treatment for burning on urination. A urinalysis was positive for E. coli bacteria and Pyridium was prescribed. On subsequent urological evaluation, the veteran again reported burning on urination, as well as urine seepage. The assessment was chronic cystitis versus vulvar folliculitis. An IVP performed in June 1984 showed three small (less than one millimeter) retained calcifications in the upper pole of the right kidney. There was also an apparent surgical resection of a portion of the right 12th rib, consistent with previous surgery, as well as a minimal dilation of the mid portion of the right ureter. A cystoscope showed that the bladder was within normal limits. The assessments included recurrent urinary tract infections. In November 1985, a routine urinalysis showed a bacteria count greater than 100,000. The assessment was chronic urinary tract infections and Macrodantin was prescribed. In February 1987, the veteran again reported right flank pain and a history of a right nephrolithotomy. Urinalysis was clear, and the impression was stable right flank pain. In February 1988, she sought treatment for "an inflamed tube" on the right side and indicated that she had to go to the bathroom constantly. She also reported stress urinary incontinence, but indicated that she did not want surgery. Urinalysis was normal. In August 1988, the veteran sought treatment and reported a longstanding history of urinary tract infections and kidney stones. She also indicated that she had been told previously that she had parathyroid disease, although she had never seen the results of that diagnostic testing. As such, she requested a "reworkup." Laboratory testing was normal, except for increased cholesterol. There was no evidence of parathyroid disease. In February 1989, she sought treatment for a vaginal inflammation. She also reported that she had had stress urinary incontinence since 1977. The assessment was bacterial vaginosis. In December 1990, the veteran sought treatment for mild suprapubic tenderness. A urinalysis showed an increased white blood cell count and the assessment was cystitis. On follow-up in January 1991, the veteran reported that she was asymptomatic. The assessment was urinary tract infection, resolved, without evidence of kidney stone. In September and October 1991, she was again treated for a urinary tract infection. In March 1992, she sought treatment for menorrhagia, mild dysmenorrhea, loss of stool on the first day of menses, and loss of urine with coughing and sneezing. She indicated that these symptoms were causing lifestyle problems and difficulties at work. On examination, a past medical history of two children, increased cholesterol, kidney stone removal, and a tubal ligation in 1984 were noted. The assessments were pelvic relaxation and stress urinary incontinence. In July 1992, the veteran was hospitalized for treatment of pelvic relaxation and stress urinary incontinence symptoms. On admission, it was noted that she had been experiencing stress urinary incontinence with coughing and sneezing, as well as occasional loss of stool on the first day of menses. It was noted that these problems had caused a severe change in lifestyle and the veteran had requested surgical repair. On physical examination, the veteran's uterus had a first degree prolapse. The vagina had a first decree rectocele and a first degree cystocele with no enterocele. Bladder testing was positive for anal wink following a Q-tip at 30 degrees with positive leakage of urine on Valsalva. The assessment was pelvic relaxation. The veteran underwent a total vaginal hysterectomy, bilateral salpingo-oophorectomy, anterior and posterior repair, and a Kelly plication. In a September 1993 memorandum, a VA physician indicated that he had reviewed a pertinent portion of the veteran's medical records, and he felt that the evidence did not support the theory advanced that her service-connected genitourinary disability necessitated her July 1992 pelvic surgery. However, he noted that at the time of his review, the record did not include the hospital discharge summary, operation report, or pathology report. Such documentation was received by VA in September 1993. At an October 1997 VA medical examination, the veteran indicated that she had a history of kidney stones and urinary tract infections which were treated with antibiotics prior to her first pregnancy. She stated that she had intermittent recurrent infections until the birth of her second child in 1982. In the 1990s she indicated that she had a follow-up, mainly for gynecological problems due to menorrhagia and bladder problems. At that time, a bladder prolapse related to a uterine prolapse was diagnosed and a hysterectomy, bladder suspension, and oophorectomy were performed. Since that time, she indicated that she had had no "official" infections. The diagnoses were kidney stone, by history, with surgical removal in 1978 with well-healed, nontender cicatrix and retained residual stone and history of urinary tract infections, quiescent by history, following hysterectomy and bladder suspension in 1993. At her January 1999 Board hearing, the veteran testified that she had experienced chronic urinary tract infections in service which were treated with silver nitrate. She stated that immediately following this treatment, she began to experience urine leakage and that it persisted until 1992 when she was diagnosed with prolapse of the bladder and uterus, and it was surgically corrected. II. Law and Regulations Service connection may be granted for disability as a result of disease or injury incurred in or aggravated in service. 38 U.S.C.A. §§ 1110, 1131. 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). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The U.S. Court of Appeals for Veterans Claims (the U.S. Court of Veterans Appeals prior to March 1, 1999, hereinafter the Court) has held that lay observations of symptomatology are pertinent to the development of a claim of service connection, if corroborated by medical evidence. See Rhodes v. Brown, 4 Vet. App. 124, 126-127 (1993). The Court has established the following rules with regard to claims addressing the issue of chronicity. The chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service and still has such condition. Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded if (1) the condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter and (3) competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495 (1997). A lay person is competent to testify only as to observable symptoms. Id.; Falzone v. Brown, 8 Vet. App. 398, 403 (1995). A lay person is not, however, competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. Id. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Moreover, the Court has held that where a service-connected disability causes an increase in, but is not the proximate cause of, a nonservice- connected disability, the veteran is entitled to service connection for that incremental increase in severity attributable to the service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). nection if the evidence is consistent with the circumstances, condition or hardships of such service, even though there is no official record of such incurrence or aggravation. Every reasonable doubt shall be resolved in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). In this case, however, as the veteran did not serve in combat, provisions of 38 U.S.C.A. § 1154(b) are inapplicable. In general, in any claim for benefits, the initial question before the Board is whether the veteran has met his burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well-grounded. 38 U.S.C.A. § 5107(a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has set forth the parameters of what constitutes a well-grounded claim, i.e., 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 section 5107(a). See Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). More specifically, the Federal Circuit has held that 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 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. Id. at 1468 (citations omitted). A claim for secondary service connection, like all claims, must be well grounded. Reiber v. Brown, 7 Vet. App. 513 (1995); Harvey v. Brown, 6 Vet. App. 390 (1994). Generally, when a veteran contends that his or her service-connected disability has caused a new disability, he or she must submit competent medical evidence of a causal relationship directly between the two disabilities to establish a well-grounded claim. Jones v. Brown, 7 Vet. App. 134 (1994). Although the claim need not be conclusive, it must be accompanied by evidence. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute competent evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991). III. Analysis In this case, the veteran claims that her service-connected kidney stones with chronic urinary tract infections (or treatment therefor) caused her pelvic relaxation with urinary stress incontinence, which in turn led to a total hysterectomy and bilateral salpingo-oophorectomy. Initially, the Board observes that the service medical records, including the March 1978 military separation medical examination report, are entirely negative for complaints or findings of pelvic relaxation or urinary stress incontinence. Likewise, while the post-service medical evidence shows treatment for recurrent urinary tract infections, it is negative for findings of pelvic relaxation or stress incontinence for several years after service. When she underwent urological evaluation in May 1979, a voiding cysto- urethrogram showed a normal bladder and the examiner concluded that surgical intervention was not indicated. VA medical examinations conducted in August 1980 and November 1982 showed no complaints or findings of stress incontinence or pelvic relaxation. While findings of pelvic relaxation and urinary stress incontinence have been noted subsequently in the post-service medical records, none of this medical evidence contains any indication that such disability is related to the veteran's service, any incident therein (including silver nitrate therapy), or any service-connected disability. While she has speculated and theorized that this condition was incurred secondary to her service-connected kidney stones with chronic urinary tract infections (or treatment therefor), such opinion is clearly a matter for an individual with medical knowledge and expertise. As she is a lay person, the veteran is not competent to provide evidence on this matter to render her claim well grounded. Espiritu, 2 Vet. App. at 494. In reaching this determination, the Board has also considered the veteran's claim that she has experienced continuous symptoms of urinary stress incontinence since her active service. As set forth above, the Court has held that, a claim based on chronicity may be well-grounded if (1) the chronic condition is observed during service, (2) continuity of symptomatology is demonstrated thereafter, and (3) competent evidence relates the present condition to that symptomatology. Savage, supra. While a lay person is competent to testify as to observable symptoms, he or she is not competent to provide evidence that the observable symptoms are manifestations of chronic pathology or diagnosed disability. In this case, the service medical records contain no notations of pelvic relaxation with urinary stress incontinence. Even accepting the veteran's statements of continuous symptoms of urinary stress incontinence, medical expertise is required relating a current disability to the reported continuous symptoms. Because the record is devoid of any such evidence, the Board concludes that the veteran has not submitted evidence sufficient to well ground her claim. Therefore, lacking competent medical evidence of pelvic relaxation with urinary stress incontinence in service or for several years thereafter, or of a link between the current condition and her military service, any incident therein, any reported continuous symptomatology, or any service-connected disability, the Board must conclude that the veteran's claim of service connection for post-operative residuals of pelvic relaxation with urinary stress incontinence, including a total hysterectomy and a bilateral salpingo-oophorectomy, is not well grounded. 38 U.S.C.A. § 5107(a). Because her claim is not well grounded, VA does not have a statutory duty to assist her in developing facts pertinent to the claim. The Board also finds that the veteran has not identified available competent medical evidence which would render her claim well grounded. Slater v. Brown, 9 Vet. App. 240, 244 (1996); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Under the circumstances in this case, the Board finds that there is no further duty on the part of VA to inform her of the evidence necessary to complete her application. Epps, 9 Vet. App. at 344. ORDER Service connection for post-operative residuals of pelvic relaxation with urinary stress incontinence, including a total hysterectomy and bilateral salpingo-oophorectomy, is denied. J.F. GOUGH Member, Board of Veterans' Appeals - 6 -