Citation Nr: 0811089 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 04-16 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for recurrent pelvic pain. 2. Entitlement to service connection for thoracic scoliosis/lumbosacral pain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. J. O'Mara, Associate Counsel INTRODUCTION The veteran had active service from July 1998 to July 2002. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, District of Columbia, which, in pertinent part, denied service connection for recurrent pelvic pain and thoracic scoliosis/lumbosacral pain. Jurisdiction is now with the New Orleans, Louisiana RO. In July 2004, the veteran testified during a hearing at the RO before RO personnel; a transcript of the hearing is of record. In December 2006, the Board remanded to the RO the claims on appeal for compliance with law regarding VA's duty to notify under the Veterans Claims Assistance Act (VCAA); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002). While the RO advised the veteran in accordance with applicable law and further medical evidence was obtained, the evidence is presently not sufficiently developed to enable effective appellate review. The appeal is therefore REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action, on her part, is required. REMAND Regarding the veteran's claim for service connection for thoracic scoliosis/lumbosacral pain, the record indicates that the veteran's thoracic scoliosis diagnosis is a congenital disorder. For purposes of entitlement to benefits, the law provides that congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. §§ 3.303(c), 4.9. However, VA's General Counsel has held that service connection can be granted for congenital abnormalities which are aggravated by service. See VAOPGCPREC 82-90 (July 18, 1990) [a disease considered by medical authorities to be of familial (or hereditary) origin by its very nature preexist claimants' military service; however, service connection for congenital, developmental or familial diseases could be granted if manifestations of the disease in service constituted aggravation of the condition]. The veteran's service medical records show various complaints of back pain beginning in May 1999 when the veteran was diagnosed with back pain. Subsequently, the veteran was diagnosed with muscle sprain, spasm of the thoracic spine, thoracic spine strain, thoracolumbar strain, lumbar strain, lumbosacral myofascial pain, and scoliosis. The April 2002 separation Report of Medical History shows that the veteran reported having recurrent back pain. The April 2002 separation Report of Medical Examination reveals a normal spine. A subsequent May 2002 service medical record shows a diagnosis of thoracic spine strain and myofascial back pain. Post-service, a June 2002 VA examination report shows that the veteran was diagnosed with recurrent mid and low back pain and thoracic scoliosis. An August 2002 VA treatment record shows a diagnosis of pain to the back. A September 2002 VA treatment record shows the veteran was diagnosed with status post motor vehicle accident with back pain. In July 2004, the veteran testified during an RO hearing and stated that that she noted a problem with her back initially about seven or eight years previously when she was moving boxes and hurt her back. VA treatment records dated from August 2004 to July 2005 show diagnoses of low back pain and myofascial low back pain. A June 2005 VA treatment record shows that the veteran had back pain after falling in the bathtub the previous evening. An August 2006 VA magnetic resonance imaging (MRI) of the lumbar spine revealed minimal circumferential disc bulge at L4-5 without stenosis. The remainder of the MRI of the lumbosacral spine was negative. The record reveals current diagnoses of thoracic scoliosis and disc bulge at L4-5. Although the diagnosis of disc bulge at L4-5 occurred approximately four years after the veteran's discharge from service, the treatment records indicate that the veteran has complained of back symptoms while in service and immediately after her discharge from service to the present time. As the veteran is shown to have a current non-congenital disability of disc bulge at L4-5, the service medical records show that she complained of low back pain throughout service and upon separation from service, and post-service treatment records show that she complained of back pain soon after her discharge from service and continued to receive treatment for her back to the present time, a VA examination is necessary to determine whether the veteran has a current back disability that is related to her service, or whether the veteran's congenital thoracic scoliosis was aggravated by her service. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2007), 38 C.F.R. § 3.159(c)(4)(i) (2007); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (VA will provide a medical examination or obtain a medical opinion if the evidence indicates the existence of a current disability or persistent or recurrent symptoms of a disability that may be associated with an event, injury, or disease in service, but the record does not contain sufficient medical evidence to decide the claim). VA cannot determine these issues without resort to competent medical evidence. It is well-settled that in its decisions, the Board may not rely upon its own unsubstantiated medical opinion. Allday v. Brown, 7 Vet. App. 517 (1995); Godfrey v. Brown, 7 Vet. App. 398 (1995); Traut v. Brown, 6 Vet. App. 495 (1994); Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, without further clarification, the Board is without medical expertise to ascertain whether the veteran's claimed disability is related to her service. In addition, regarding the veteran's claim for service connection for recurrent pelvic pain, the service medical records show that the veteran had various complaints of abdominal pain and pelvic pain during service. Initially, in August 1999, the veteran was diagnosed with lower abdominal pain. In October 1999, she was diagnosed with abdominal cramping, possibly related to menses cycle. A December 1999 record shows a diagnosis of intermenstrual bleeding, rule out ovarian pathology/ovulatory hormone. A September 2001 record shows a diagnosis of abdominal pain with questionable etiology - delayed menses. An October 2001 X-ray revealed no evidence for large or abnormal ovarian cysts and small follicles were noted bilaterally. There was no evidence of adenexal mass. In April 2002, the veteran was diagnosed with pelvic pain. The April 2002 separation Report of Medical History shows that the veteran reported having treatment for a gynecological disorder and a change in menstrual pattern. The April 2002 separation Report of Medical Examination revealed a normal pelvic exam. Post-service, in September 2002, as shown in a VA treatment record, the veteran complained of light vaginal bleeding since that morning. She also complained of suprapubic/pelvic pain. The diagnosis was breakthrough vaginal bleeding likely secondary to missing oral contraceptive pills. A September 2002 VA treatment record shows a diagnosis of right groin pain with unknown etiology. In March 2003, the veteran was diagnosed with bacterial vaginosis. On March 2004 VA examination, the veteran reported a history of chronic pelvic pain for the past three years. She was diagnosed with chronic pelvic pain, controlled with medications. A June 2004 VA treatment record shows a diagnosis of vaginitis. A January 2005 VA treatment record shows a diagnosis of secondary amenorrhea and a February 2005 record shows a diagnosis of history of pelvic pain. The veteran's claim for service connection for recurrent pelvic pain was initially denied by the RO because the veteran was not shown to have a current underlying disability resulting in pelvic pain. Review of the record reveals that the veteran has post-service diagnoses of bacterial vaginosis and vaginitis. However, it is not clear whether these diagnoses are chronic disabilities, and if so, whether they are related to the veteran's complaints of pelvic pain in service. Therefore, as stated above, as the record is not clear as to whether the veteran has a current disability and whether that disability is related to service, a VA examination is necessary to obtain an opinion from a medical professional. 38 U.S.C.A. § 5103A(d)(2) (West 2002 & Supp. 2007), 38 C.F.R. § 3.159(c)(4)(i) (2007); McLendon, 20 Vet. App. at 79. Accordingly, the RO should arrange for the veteran to undergo VA orthopedic and gynecological examinations at an appropriate VA medical facility. The veteran is hereby advised that failure to report to the scheduled examinations, without good cause, may well result in a denial of the claims for service connection. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the veteran fails to report to the scheduled examinations, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the date and time of the scheduled appointment(s) sent to her by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO must obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in New Orleans, Louisiana, dated up to August 2007. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The RO must obtain all outstanding pertinent medical records from the New Orleans VAMC since August 2007, following the procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requesting records from Federal facilities. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain from the New Orleans VAMC all pertinent records of evaluation or treatment of the veteran's back and any gynecological treatment, from August 2007 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records or responses received should be associated with the claims file. 2. The RO should arrange for the veteran to undergo orthopedic and gynecological examinations by physicians at an appropriate VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual(s) designated to examine the veteran, and the report(s) of the examination(s) should include discussion of the veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The physician(s) should set forth all examination findings, along with the rationale for any conclusions reached, in a printed (typewritten) report. Back Disorder The physician must review all pertinent records associated with the claims file, particularly the veteran's service medical records, the veteran's assertions regarding her in-service complaints of back pain, post-service treatment records showing complaints of back pain, and the August 2006 VA MRI. Thereafter, the physician should offer an opinion regarding the following: a) Whether the veteran's thoracic scoliosis is a congenital disorder that preexisted service. b) If the thoracic scoliosis is a congenital disorder, whether thoracic scoliosis was aggravated by service beyond the normal progression of the disease. c) Whether the veteran has a current non- congenital back disability (to include bulging disc L4-5) that is causally or etiologically related to the veteran's service. Recurrent Pelvic Pain The physician must review all pertinent records associated with the claims file, particularly the veteran's service medical records, the veteran's assertions regarding her in-service complaints of pelvic pain, post-service treatment records showing complaints of pelvic pain, and the post-service diagnoses of vaginitis and bacterial vaginosis. Thereafter, the physician should offer an opinion as to whether the veteran has a chronic gynecological disability. If so, the physician should opine as to whether any chronic gynecological disability is causally or etiologically related to the veteran's service. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) These claims 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). _________________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).