Citation Nr: 0810109 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 05-16 501 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an upper back disability. 2. Entitlement to service connection for a menstrual disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and B.T. ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from February 1995 to May 2000. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2008, a Travel Board hearing was held before the undersigned Veterans Law Judge at the St. Petersburg RO. A transcript of the hearing is of record. The issue of entitlement to service connection for a menstrual disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. VA notified the appellant of the evidence needed to substantiate the claim decided herein, explained who was responsible for submitting such evidence, and obtained and fully developed all evidence necessary for an equitable disposition of this claim. 2. The competent evidence of record demonstrates a continuity of symptomatology between the upper back symptoms the veteran experienced during service and those that the veteran currently experiences. CONCLUSION OF LAW The criteria for entitlement to service connection for an upper back disability have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Upper Back Disability Generally, 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 by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Further, if a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after service when all of the evidence establishes that the disease was incurred in service. Id. To prevail on the issue of service connection there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). With respect to the issue of evidence of an in-service disability, the Board notes that the veteran's January 1995 enlistment examination, medical history, and pre-screening reports specifically note that she had no history of back problems and that her back was clinically normal upon entrance into service. The veteran's service medical records reflect no complaints of or treatment for back problems until March 2000. A March 2000 service medical record states that the veteran complained of tight back and shoulder areas with tender trigger points during the day. Symptoms were worse with stress. The doctor assessed obesity and back pain and speculated that the veteran may have fibromyalgia. Records from April and May 2000 reflect that the veteran continued to seek treatment for severe upper back pain. An April 2000 record notes that the veteran reported having had this pain for the past year and that the symptoms were gradually increasing. She stated the symptoms were unpredictable with no apparent pattern. There was no one activity that was associated with the increased symptoms. The symptoms decreased somewhat with stretches and strengthening exercises. The assessment was that the veteran had imbalances across her upper back and poor stabilization techniques. She was scheduled for physical therapy. With respect to the current disability requirement, the veteran's claims file contains VA and private medical records demonstrating ongoing, post-service treatment for upper back pain since July 2001. The veteran's medical records indicate that her back pain did not originate from a specific trauma or injury. The July 2001 VA medical center record notes the veteran's reported history of back pain and that she took aspirin when needed. A January 2004 record assesses chronic upper back pain with acute exacerbations. Her medications were changed at this time and she was instructed not to work for the next 24 hours. Another January 2004 record notes spasm and tenderness of the right thoracic paraspinal muscles. She was instructed take one Darvon tablet four times daily as needed. She was also told to use a heating pad as needed and to get back support for her working chair. A July 2004 VA examination report noted that the veteran had a pain in the upper back that radiated towards the neck and shoulders and sometimes downward with variations in severity from low-grade to none at all to very severe. The examiner reviewed the veteran's service medical records and noted that no definite diagnosis was made in service. The examiner noted a full range of motion, as well as normal resistance and strength of the cervical muscle. He also noted that there may be a tender area at the junction of the posterior cervical muscles with the trapezius on both sides. The examiner noted that x-rays from January 2004 showed a normal cervical spine. The examiner found that it was less likely than not that there was a significant musculoskeletal condition. VA records from 2005 describe the veteran's continuing treatment for back pain, including strength training, moist heat, and ultrasonography/electrical stimulation. She was also seeing a chiropractor. In March 2005, a private chiropractor diagnosed the veteran with chronic myalgia/myositis, chronic pain in thoracic spine, chronic cervicalgia, multiple chronic thoracic vertebral fixations, chronic cervical vertebral fixations, and lumbar subluxation. These diagnoses were based on the veteran's reported medical history, physical examination, and review of January 2004 and January 2005 x-rays. He recommended a treatment plan that would be appropriate "due to the obvious chronicity of [the veteran's] symptom complex." In relevant part, the doctor noted that the veteran's posture was quite rigid. Her cervical range of motion was full with marked pain noted in the right cervico- thoracic regions on flexion of the cervical spine to 50 degrees. Her thoracolumbar range of motion was limited -2/4 with right lateral flexion with marked pain and visible and palpable thoracolumbar muscle spasms on the right. There was a positive Soto Hall test for right-sided lower cervical and right-sided thoracic pain. Lindner's sign was present for lower thoracic and upper lumbar pain on the right. There was a negative foraminal compression test bilaterally and straight leg raising was negative bilaterally. There was tenderness +2/4 in the right trapezius, right posterior scalenus anticus, and right infraspinatus muscles. There was a positive Minor's sign and motion palpation revealed vertebral fixations at C5-C6, T1, T3, T5-T6, T8, T10, and T12-L1. The chiropractor reviewed the January 2004 x-rays and stated that these were negative for fracture and osseous pathology. Architectural changes were noted on the lateral view of a loss of the normal cervical lordosis with a slight reversal centered at C5-C6. The anterior-posterior view was normal. Lateral thoracic views from January 2005 were negative for fracture and osseous pathology. There were very mild anterior osteophytes at the superior and inferior margins of T6 through T9. The anterior-posterior views revealed a slight scoliosis with the apex at T6-T7. The Board notes that there is no etiology opinion of record. However, the Board believes that the continuity of symptomatology of the veteran's upper back disability in this case, starting with treatment the veteran received during service and continuing through the date she filed her claim, justifies granting her claim without a remand for further development. The Board specifically notes that the evidence demonstrates no pre-service history of upper back pain and no upper back pain for the first five years of her military service. Medical records from the final three months of service, however, contain several records of treatment for upper back pain that did not appear to have been resolved upon her separation from service. The veteran has stated that she first sought post-service treatment through VA when she discovered she was eligible for VA medical care. These records, as described above, demonstrate that the veteran sought treatment numerous times after service for her upper back pain. Furthermore, the March 2005 private chiropractor's record diagnoses several chronic disabilities of the upper back. The Board finds this evidence sufficient to resolve any benefit of the doubt in the veteran's favor and to grant her claim of entitlement to service connection for an upper back disability. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102. ORDER Entitlement to service connection for an upper back disability is granted. REMAND The Board has also considered the veteran's claim of entitlement to service connection for a menstrual disorder and believes that a remand for further development is warranted. The veteran's service medical records reflect that she was seen for irregular menstrual cycles many times during service, but no satisfactory diagnosis was provided. Post-service, an August 2001 VA medical record reflects that a cyst was found on the veteran's right ovary. In January 2002, she had a laparoscopic ovarian cystectomy. She also had an MRI of the sella turcica, which showed a possible microadenoma of the hypophysis of 5-6 mm. Later medical record indicates that the veteran was diagnosed with pituitary microadenoma. A September 2003 VA medical record notes that the veteran had a history of abnormal pap smear and colposcopy and was awaiting a LEEP procedure. The veteran had been recently started on medication for galactorrhea. A December 2003 record reflects a conversation with the veteran about the results of her pap smear. She was found to have low grade squamous intraepithelial lesion (mild dysplasia and changes consistent with HPV infection). A January 2004 record notes that the veteran had complained of clear, white-yellow nipple discharge for the past two years. Another LEEP procedure was performed in March 2005. At her February 2008 hearing, the veteran described her various medical problems and stated that many of them were discovered when her doctor ordered blood work, x-rays, ultrasounds, and other tests performed to try and find out why her menstrual cycles were so abnormal. The veteran and her representative stated that doctors still were unable to determine the cause of the veteran's irregular menstrual cycles. The veteran expressed her belief that her in-service menstrual abnormalities may be related to her post-service gynecological problems. The Board believes that a thorough VA examination, including a period of hospitalization and observation, is warranted in this case so that doctors may perform whatever tests and procedures are appropriate for determining exactly what the veteran's gynecological disabilities are and the relationship they have, if any, to her irregular menstrual cycles. Accordingly, the case is REMANDED for the following action: 1. The veteran should be requested to provide the names, addresses, and approximate dates of treatment for any individuals or facilities that may possess additional records pertinent to her claim. After obtaining any necessary authorization from the appellant, the RO must obtain any outstanding medical records and associate them with the claims file. The RO should specifically request any VA medical records that are not yet a part of the record. If any of the requested records do not exist or cannot otherwise be obtained, that fact should be noted in the claims file. 2. The veteran should be scheduled for thorough examination by a VA gynecologist or other physician or physicians with the appropriate expertise to evaluate the veteran's menstrual disorder. The Board realizes that, in order to obtain the requested information, a period of hospitalization and observation may be recommended. The veteran's claims file must be made available to and be reviewed by the examiner. The examiner should indicate in the report that the claims file was reviewed. All relevant tests and studies should be accomplished and clinical findings should be reported in detail. The examiner is asked to diagnose any current disability that may be relevant to this appeal and to provide an opinion as to whether it is at least as likely as not (a 50 percent probability or more) that any such disability was incurred in or aggravated during service. Specifically, the examiner is asked to review the veteran's service medical records and post-service medical records and to determine whether any diagnosed gynecological disability is at least as likely as not related to the irregular menstrual cycles the veteran experienced during service. The examiner should opine as to the likely cause of any disability that cannot be linked to the veteran's irregular menstrual cycles. The examiner is also asked to perform any necessary tests or studies to determine the cause of the irregular menstrual cycles themselves. The examiner's report should include an in-depth review of the veteran service medical records and the post-service medical evidence of record and should specifically address any gynecological condition that is either diagnosed or suspected in the veteran's medical records. (See the body of this remand for a summary of these records.) A complete rationale for all opinions must be provided. If the examiner cannot provide the above requested opinion without resort to speculation, it must be so stated. 3. The appellant is advised that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the appellant does not report for a scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the above has been completed, and after any other development that is deemed appropriate, the AMC must readjudicate the issue on appeal. If the issue on appeal continues to be denied, the veteran and her representative must be provided a supplemental statement of the case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs