Citation Nr: 0014777 Decision Date: 06/05/00 Archive Date: 06/15/00 DOCKET NO. 96-10 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a chronic acquired disorder manifested by pain in the left lower side, and a chronic acquired right rib disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had active military service from April 1977 to February 1986. This appeal arose from an October 1995 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO denied entitlement to service connection for a back disorder shown as cervical/thoracic strain, a right knee disorder shown as swelling of the right knee, pain in the left lower side shown as a musculoskeletal pelvic pain, and a right rib disorder shown as muscle spasm in the right rib cage area. In September 1997 the Board of Veterans' Appeals (Board) denied entitlement to service connection for a right knee disorder, and remanded the issues of entitlement to service connection for back and right rib disorders, and pain in the left lower side to the RO for further development and adjudicative actions. In February 2000 the RO granted entitlement to service connection for post sprain lumbar spine with assignment of a 20 percent evaluation effective October 10, 1995, the date of receipt of claim. The RO also affirmed the previous denials of entitlement to service connection for a right rib disorder and pain in the left lower side. The case has been returned to the Board for further appellate review. As is specified in more detail below, the claim of entitlement to service connection for a right rib disorder is found to be well grounded, but because there was inadequate compliance with the Board's remand directives, the claim is further addressed in the remand portion of this decision. See Stegall v. West, 11 Vet. App. 268 (1998). It is noted that in September 1997 the Board denied a claim of entitlement to service connection for a right knee disorder. In February 2000 the veteran submitted a letter, stating in pertinent part "In regards to my appeal on my right knee. It still swells, it feels like I am getting arthritis in it. I have no additional documents on this claim." The Board's decision, unless appealed in a timely fashion is final. It is unclear what the veteran is seeking, but the matter is referred to the RO for appropriate follow- up. In the aforementioned February 2000 letter, received after the issuance of the February 2000 rating decision, the veteran stated in pertinent part that she was receiving chiropractic care of her back, but that her back was seemingly getting worse. She also mentioned that she was in the process of obtaining a referral to a specialist in orthopedics. This statement is in the nature of a notice of disagreement (NOD) with the initial evaluation assigned. Failure to provide a statement of the case (SOC) when a timely NOD is filed is a procedural defect requiring a remand. Godfrey v. Brown, 7 Vet. App. 398 (1995); Manlincon v. West, 12 Vet. App. 238 (1999). However, an appeal shall be returned to the Board only if perfected through filing of a timely substantive appeal. Smallwood v. Brown, 10 Vet. App. 93 (1997). This matter is addressed in the remand portion of the decision. FINDINGS OF FACT 1. Pain in the veteran's left lower side is most likely related to scar tissue from surgeries in service. 2. The claim of entitlement to service connection for a chronic acquired right rib disorder is supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSIONS OF LAW 1. A chronic acquired disorder manifested by pain in the left lower side was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 4.3 (1999). 2. The claim of entitlement to service connection for a chronic acquired right rib disorder is well grounded. 38 U.S.C.A. § 5107. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran's pre-enlistment examination, dated in December 1976, shows a normal pelvic examination, a normal abdomen, a normal chest and a normal musculoskeletal system. Service medical records show numerous reports pertaining to gynecological care during service, primarily pertaining to irregularities with the menstrual cycle, vaginal discharge/infection and miscarriage. The veteran gave birth on two occasions in service; both times accomplished by cesarean section. In June 1979 in connection with an incomplete abortion and dilation and curettage operation, the veteran reported severe abdominal pain although it was not specified that this was left sided. The veteran gave birth via cesarean section in April 1980. Diagnoses included premature rupture of bag of water, failure to progress, cephalopelvic disproportion and endometritis with parametritis. A retention examination in May 1982 noted a normal pelvic examination and normal examinations of the chest, abdomen and musculoskeletal system. In August 1982 the veteran reported muscle spasm in the right rib (also described as the upper right quadrant of the abdomen) that would start and stop suddenly. She denied ever having had a similar problem before. There was a tender 12th right rib. The assessment was floating rib syndrome. In connection with another threatened abortion in January 1983, the veteran denied any significant abdominal pain. During a pregnancy related check-up in December 1983 the veteran reported right sided cramping. In February 1984 the veteran gave birth to a second child by cesarean section. The birth was described as complicated by the prior cesarean section. In June 1985 the veteran was seen for severe abdominal pain for one day. Examination showed tenderness of the left adnexa. The assessment was left ovarian cyst. A note from January 1986 noted symptoms of left-sided adhesions. In February 1986 the veteran underwent a bilateral partial salpingectomy and lysis of adhesions. The left tube seemed to be adhered to the wall and had to be dissected out. A chest x-ray from February 1986 was normal. A follow-up report from February 1986 noted complaints of frequency of urination with nausea and lower abdominal pressure. The veteran's recent operative history was noted. The assessment was urinary tract infection. A medical history from the same month, the stated purpose of which was "chapter 6," noted complaints of pain or pressure in the chest. The veteran also stated that she had been treated for a female disorder, and that she was not sure if she had a tumor, growth, cyst, or cancer. An Army hospital emergency room report from July 1987 noted lower left abdominal pain for three months. The assessment appears to have been "adhesions." Army clinic treatment records from 1991 and 1992 show treatment of right upper back pain, nausea and abdominal pain. The veteran reported a history of gas. In February 1991 an assessment was made of rule out cholelithiasis/gall bladder disease. A subsequent report attributed the symptoms to gastritis versus peptic ulcer disease. In October 1995 the veteran's private chiropractor submitted a report stating that she had received treatment since March 1994 for various musculoskeletal complaints, but did not list the abdomen or right ribs. The veteran submitted a written statement in November 1995 asserting that she had left-sided pain that would occur during her menstrual cycle, and added that the pain started after her second cesarean section. She asserted that she was told that she had an ovarian cyst and that during a sterilization procedure, an adherent left fallopian tube had to be dissected. A physician told her that this was causing her pain. She noted that an Army hospital record noted that adhesions were possibly causing abdominal pain. With respect to her right rib, the veteran stated that her right rib would pull out of place and was diagnosed as floating rib syndrome during active duty. The veteran's chiropractor submitted a supplemental report in November 1995. He stated that the veteran's left lower side pain was diagnosed as musculoskeletal in nature but after he was informed by her of complications experienced from surgery in the area, he amended his opinion to include possible post surgical complications. The chiropractor stated that the veteran impressed him as a concerned and honest individual. While, according to his report, etiology was unknown and diagnosis was based largely on the veteran's history, he assumed that injuries suffered on active duty caused her complaints due to the absence of any indication of another event that could cause the condition. On VA examination in April 1996 the veteran reported pain in the right costal margin in 1982, after birth of her child. After examination, which found right costal margin prominence and tenderness but no displacement, the diagnosis was chronic costal margin instability. The veteran also underwent a VA gynecological examination during which she reported chronic pelvic pain, primarily on the left side for 10 years. Her history was reviewed. After examination, which showed left adnexal tenderness, the assessment was chronic pelvic pain with history of pelvic adhesive disease. A VA outpatient record from August 1996 noted complaints of chronic pelvic pain beginning six days from menses. The veteran reported progressive pain for 10 years. Alternative procedures were discussed. In a statement submitted in November 1996 the veteran stated that she continued to have pain in the area where a sterilization operation was performed in 1986. She stated that she was informed that this was possibly due to scar tissue. She stated that pelvic adhesive disease was ruled out, but that she was informed that a hysterectomy would relieve her pain. With regard to the right rib, the veteran reported that rib pain had begun shortly after the birth of her first child. A physician advised her that the baby probably kicked the rib out. She related the diagnosis made at the time, and stated that she continued to have pain in the rib area after that time. Records show that the veteran was seen at an Army hospital clinic in November 1996 for workup for left pelvic pain. She reported pain since 1984, and her operation in 1986. A pelvic ultrasound was ordered. The pelvic ultrasound was conducted in December 1996. The veteran reported a long history of chronic pelvic pain. The left ovary was smaller than the right ovary, and the examiner stated that there may have been a slight hypoechoic region seen in the region of the cervix. No specific impression was given. Additional ultrasound testing was recommended. On follow-up in December 1996 an impression was made that there was a normal examination. Pelvic pain was attributed to scar tissue. A hysterectomy was offered. Additional VA examinations were conducted in September 1998. The examiner appears to have been the same individual who conducted the 1996 examinations. There does not appear to have been any history, examination, diagnoses or opinions offered regarding the claim of entitlement to service connection for pain in the left lower side. Regarding the claim of entitlement to service connection for a right rib disorder, the veteran reported trouble with a rib, stating that while pregnant her baby kicked it. By history, a diagnosis of a floating rib was made, but x-rays had previously been negative. The examiner's report contains answers to questions that are not listed and therefore it is unclear whether there was any examination of the ribs. No diagnosis was made with respect to the ribs. Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131. Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which service connection is sought must be considered on the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which the veteran served, medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1999). With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, for example, in service will permit service connection of arthritis, first shown as a clear-cut clinical entity, at some later date. 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." When the disease identity is established, there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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) (1999). Service connection may 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) (1999). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that her claim is well grounded; that is, that her claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). See also e.g. Hensley v. West, No. 99-7029 (Fed. Cir. May 12, 2000)(the burden of establishing well groundedness is low). For a claim for service connection to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of disease or injury in service in the form of lay or medical evidence, and of a nexus between in service injury or disease and current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Hensley supra. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting her lay opinion because she is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well-grounded claim, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), a claim based only on the veteran's lay opinion is not well grounded. In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Analysis The Board reiterates the three requirements for a well- grounded claim: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease of injury; and (3) medical evidence of a nexus between the claimed in- service injury or disease and a current disability. See Caluza, supra. The Board has carefully considered the evidence compiled by and on behalf of the veteran and determined that her claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). With respect to the claim of entitlement to service connection for pain in the left lower side, this complaint was shown in service. After service, the veteran's chiropractor offered the opinion that this was possibly a complication of surgery, as contended by the veteran. There is also a medical opinion from a gynecologist that the veteran's left-sided pelvic pain was secondary to scar tissue. The opinion, as noted above, was given as part of a work-up of the veteran's complaints of pelvic pain after operations in service in 1984 and 1986. The Board concludes that the veteran has submitted medical evidence of a current disability, medical evidence of relevant symptoms and diagnoses in service, lay and medical evidence of ongoing left lower pelvis pain after service, and competent medical evidence supporting the existence of at least a possible or plausible nexus between current complaints and findings and service. Therefore, given that the burden of establishing a well grounded claim is low, treating the evidence as presumptively credible, and viewing it in the light most favorable to the veteran, the evidence is sufficient to well ground her claim. 38 C.F.R. §3.303(a),(b),(d); Caluza, supra. Although the Board previously requested a VA examination with an opinion on etiology, the medical records in the claims folder persuasively support the veteran's claim and as there is no evidence attributing the pelvic pain to a nonservice related cause, the Board concludes that the preponderance of the evidence is not against the claim and it is granted. 38 C.F.R. §§ 3.102, 3.303, 4.3; Caluza, 7 Vet. App. 498; Gilbert, 1 Vet. App. 49. With respect to the complaints of a right rib disorder, the veteran has produced medical evidence of relevant symptoms and diagnoses in service (floating rib syndrome), lay evidence of ongoing pain after service, and medical evidence of a current chronic disability - namely chronic costal margin instability - based on her history of symptoms in service. There is continuity of symptomatology after service and a medical opinion providing a diagnosis of a chronic disorder based on that symptomatology. Therefore, the Board finds that there is a plausible or possible basis for the veteran's claim. Treating the evidence as presumptively credible and viewing it in the light most favorable to the veteran, this is sufficient to well ground her claim. 38 C.F.R. §3.303; Caluza, supra. ORDER Entitlement to service connection for a chronic acquired disorder manifested by pain in the left lower side is granted. The veteran having submitted a well-grounded claim of entitlement to service connection for a chronic acquired right rib disorder, the appeal is granted to this extent only. REMAND 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 United States Court of Appeals for Veterans Claims (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, 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. As the veteran has submitted a well-grounded claim of entitlement to service connection for a chronic acquired right rib disorder, VA must assist her in the development of his claim prior to a final decision. As noted previously, the veteran's appeal was remanded by the Board in September 1997, and a Board remand affords a claimant a due process right to substantial completion of requested development. Stegall supra. The aforementioned Board remand requested, among other things, a VA examination including a specific diagnosis with respect to the right rib symptoms and an opinion on etiology. As noted above, it is unclear from the reports of the 1998 examination record whether there was any examination of the right ribs, and no diagnosis or opinion on etiology appears to have been provided. The Board is of the opinion that a comprehensive contemporaneous examination of the appellant as well as association with the claims file of any additional records of treatment that may have accumulated during the course of the appeal would materially assist in the adjudication of the issue on appeal. Also, as noted in the introduction to this decision, the veteran's February 2000 statement is in the nature of a NOD from the initial evaluation assigned to the service connected back disability, a "post sprain" of the lumbar spine. Failure to provide a SOC when a timely NOD is filed is a procedural defect requiring a remand. Godfrey, 7 Vet. App. 398; Manlincon, 12 Vet. App. 238. However, an appeal shall be returned to the Board only if perfected through filing of a timely substantive appeal. Smallwood supra. Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to her claims under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999), and to ensure that she has been provided with due process, the Board is deferring adjudication of the issues on appeal pending a remand of the case to the RO for further development as follows: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertinent to her claim of entitlement to service connection for a right rib disorder. After obtaining any necessary authorization or medical releases, the RO should request and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. 3. The RO should arrange for a VA examination of the veteran by an orthopedic surgeon or other appropriate specialist for the purpose of ascertaining the current nature, extent of severity, and etiology of any disorder(s) of the right ribs which may be present. Any further indicated special studies should be conducted. 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, and the examiner must annotate the claims file in this regard. Any opinions expressed by the examiner must be accompanied by a complete rationale. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination report and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. Stegall supra. 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of service connection for a right rib disorder with consideration of all applicable laws and regulations. 6. The RO should issue a SOC as to the claim of entitlement to an initial evaluation in excess of 20 percent for a post sprain of the lumbar spine. The SOC should contain consideration of all applicable laws and regulations including Fenderson v. West, 12 Vet. App. 119 (1999), and a determination as to the applicability of 38 C.F.R. § 3.321(b)(1), 4.40, 4.45, 4.59 (1999). The veteran should be notified of the requisite time to file an appeal if she desires appellate review of the issue. If entitlement to service connection for a right rib disorder is not granted to the veteran's satisfaction, the RO should issue a Supplemental Statement of the Case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until she is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals